# Racing Ass'n of Central Iowa v. Fitzgerald

> Supreme Court of Iowa · February 3, 2004 · 675 N.W.2d 1

URL: https://www.frixlaw.com/law-library/cases/9698541

## Case

- **Full name:** RACING ASSOCIATION OF CENTRAL IOWA, Iowa Greyhound Association, Dubuque Racing Association, Ltd., and Iowa West Racing Association, Appellants, v. Michael FITZGERALD, Treasurer, State of Iowa, Appellee
- **Court:** Supreme Court of Iowa
- **Decided:** February 3, 2004
- **Citations:** 675 N.W.2d 1; 2004 Iowa Sup. LEXIS 60; 2004 WL 193045
- **Precedential status:** Published
- **Opinion:** Dissent by Cady
- **Judges:** Ternus, Carter, Cady
- **Cited by:** 124 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Varnum v. Brien, 2009 Iowa Sup. LEXIS 31 (2009).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9698541

## How later opinions describe it (automated extraction)

- noting that we may, in an appropriate case, adopt a different analytical framework under the state constitution
- finding “no rational support” for federal ratio of 18:1 and treating quantity of crack cocaine under Gardner’s offenses as if it were equivalent quantity of powder cocaine under the sentencing guidelines
- describing this court’s obligation to independently evaluate constitutionality under our state constitution when conduct does not violate the federal constitution
- finding the legislative purpose behind a taxation provision cannot withstand rational basis review because of the extreme degrees of overinclusion and underinclusion

## Opinion text

CADY, Justice
(dissenting).
I respectfully dissent. The doctrine of independent constitutional interpretation by state courts is a powerful and vital aspect of constitutional law. 8 Yet, it is not well suited for equal protection claims involving a rational basis analysis of taxation statutes, and is entirely inappropriate when it arises within the very same case in which the United States Supreme Court has decided the issue. Since this court applies the same tests and follows the same analysis as the Supreme Court in *18 equal protection claims involving taxation, a conflicting decision by this court within the context of the same case necessarily means this court finds the Supreme Court decision to be totally and completely irrational and renders it a nullity, or at least merely advisory. This unprecedented action by the majority in this case is offensive to the institutional integrity of our system of justice in this country and is disruptive to the essential balance of power between the judicial and legislative branches of government in this state. It forces me to part from my colleagues and to, regrettably, express my ardent disagreement.
The majority correctly recognizes that conflicting conclusions can occur when state courts independently apply constitutional principles to challenges of discriminatory statutes, including challenges based on equal protection. For sure, this court has a proud and storied history, dating back to our earliest decisions, of viewing our state constitution as protecting individual rights not recognized by federal courts. See In the Matter of Ralph, 1 Morris 1, 7 (Iowa 1839) (“When, in seeking to accomplish his object, [one] illegally restrains a human being of his liberty, it is proper that the laws, which should extend equal protection to [persons] of all colors and conditions, should exert their remedial purpose.”). However,- the doctrine of independent interpretation cannot be used to justify a decision that conflicts with the Supreme Court in every instance, especially in cases involving challenges to taxation statutes. Unlike other areas of constitutional law, the legislature enjoys its broadest discretion in the realm of social and economic legislation. Courts, without exception, apply a minimal standard of rationality that requires any challenged discriminatory classification to be wholly and totally arbitrary before it violates equal protection.
In the area of taxation, more than any other field, we recognize the legislature possesses the greatest freedom of classification. Motor Club of Iowa v. Dep’t of Transp., 265 N.W.2d 151, 154 (Iowa 1978); Dickinson v. Porter, 240 Iowa 393, 401 , 35 N.W.2d 66, 72 (1948); accord Madden v. Kentucky, 309 U.S. 83, 87-88 , 60 S.Ct. 406, 408 , 84 L.Ed. 590, 593 (1940); see also Williams v. Vermont, 472 U.S. 14, 22-23 , 105 S.Ct. 2465, 2471 , 86 L.Ed.2d 11, 19 (1985). We give our greatest deference to the legislature in tax matters because taxation policy is recognized to be “peculiarly a legislative function, involving political give-and-take and an awareness of local conditions.” Metro. Sports Facilities Comm’n v. County of Hennepin, 478 N.W.2d 487, 489 (Minn.1991). As noted by the Supreme Court:
The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. ... [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies .... It has ... been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes....
No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex are *19 na in which no perfect alternatives exist, the court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under [an equal protection analysis].
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40-41 , 93 S.Ct. 1278, 1300-01 , 36 L.Ed.2d 16, 47-48 (1973) (footnotes omitted) (quoting Madden, 309 U.S. at 87-88 , 60 S.Ct. at 408 , 84 L.Ed. at 593 ); see also Motor Club of Iowa, 265 N.W.2d at 154 ; Dickinson, 240 Iowa at 401 , 35 N.W.2d at 72 . Without question, an equal protection challenge to a taxation statute is an extremely unlikely area of conflict between courts in our modern day society.
Under both the Iowa and federal equal protection analysis, economic discrimination in statutes is permissible, as long as a rational reason exists between the purpose of the statute and the classification made by the statute. Thus, an equal protection analysis essentially comes down to a judicial determination whether an identified reason for the classification is rational. Under the limited standard of review for taxation statutes, it is difficult for two courts to reach different conclusions if each court conscientiously follows the same governing principles. In other words, in most instances of disagreement, one of the courts is failing to follow the proper analysis.
Our courts did not always follow this rational basis test in the area of tax and economic legislation. In the decades following the Civil War, the United States Supreme Court began to earnestly scrutinize allegations of economic discrimination under a substantive due process approach. See 2 Ronald D. Rotunda & John E. No-wak, Treatise on Constitutional Lato §§ 15.2, .3, at 578-95 (1999) [hereinafter Rotunda & Nowak] (discussing the development and entrenchment of substantive due process analysis between 1865 and 1936). This led to a nearly forty-year trend of judicial activism in the area of economic legislation that allowed courts to scrutinize the wisdom of economic statutes. The most widely recognized symbol of this activism was Lochner v. New York, 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 (1905), a case which lends its name to this era. 9 In Lochner , the Supreme Court held that a state statute establishing maximum hours bakery employees could work interfered with the freedom to contract for employment. Id. at 64 , 25 S.Ct. at 546 , 49 L.Ed. at 944-45 . The Court engaged in its own evaluation of the merits of the legislation and rejected the rationale offered by the state that the statute was justified as a means to protect the health and welfare of bakers. See id. at 56-63 , 25 S.Ct. at 542-45 , 49 L.Ed. at 941-44 .
The retreat from this period of “unprincipled judicial control of social and economic legislation” began in the 1930s, and was complete by the end of that decade. 2 Rotunda & Nowak § 15.4, at 600 see, e.g., United States v. Carolene Prods. Co., 304 U.S. 144 , 152, 58 S.Ct. 778, 783 , 82 L.Ed. 1234, 1241 (1938) (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless ... it is of such a character as to preclude the assumption that it rests upon *20 some rational basis within the knowledge and experience of the legislators.” (Footnotes omitted.)). Some of our own prior cases reflect the Lochner-era approach. See, e.g., State v. Logsdon, 215 Iowa 1297, 1300 , 248 N.W. 4, 5 (1933) (a license law that “needlessly interferes with lawful occupations” would be unconstitutional); Bear v. City of Cedar Rapids, 147 Iowa 341, 344 , 126 N.W. 324, 326 (1910) (ordinance requiring milk dealers to apply to the city board of health for license challenged on substantive due process grounds). Notwithstanding, there is no question that our test today reflects the current federal equal protection analysis.
Today, a rational basis test continues to be employed that accords a presumption of constitutionality to economic legislation and a recognition of great deference to the legislative judgment involved in such legislation. See Sperfslage v. Ames City Bd. of Review, 480 N.W.2d 47, 49 (Iowa 1992); Dickinson, 240 Iowa at 398-99 , 35 N.W.2d at 71 ; see also City of New Orleans v. Dukes, 427 U.S. 297, 303-04 , 96 S.Ct. 2513, 2516-17 , 49 L.Ed.2d 511, 516-17 (1976). It requires the court to first resolve doubts in favor of the legislation, and to respect the acceptable give-and-take and imperfect justice inherent in tax legislation, as well as the fundamental legislative role in developing public policy and tax strategies to accomplish that policy.
It is accepted jurisprudence that the judiciary may not sit as a superlegis-lature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines; in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with [equal protection guarantees].
City of New Orleans, 427 U.S. at 303-04 , 96 S.Ct. at 2517 , 49 L.Ed.2d at 517 (cita tions omitted); accord Sperfslage, 480 N.W.2d at 49 ; Motor Club of Iowa, 265 N.W.2d at 154 ; Dickinson, 240 Iowa at 398-99 , 35 N.W.2d at 71 . The grave error committed by the majority is that it steps back one hundred years into the long abandoned Lochner era and engages in a social and economic debate over the objectives and purposes of the tax legislation that, up until today, was securely within the realm of the legislative branch of government. Moreover, it weighs in on a political debate by concluding that the apparent legislative objective of economic development of river communities is “illogical.” Clearly, the rational basis test was set up to prevent courts from questioning the underlying policies of economic legislation. This is for our elected leaders to do, not judges. See Morton Salt Co. v. City of S. Hutchinson, 159 F.2d 897, 900 (10th Cir.1947) (quoting Providence Bank v. Billings, 29 U.S. (4 Pet.) 514, 562 , 7 L.Ed. 939, 957 (1830)) (“In the words of Mr. Chief Justice Marshall, ‘The intent, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security ... against unjust and excessive taxation .... ”); accord Motor Club of Iowa, 265 N.W.2d at 154 ; Dickinson, 240 Iowa at 399 , 35 N.W.2d at 71 .
A review of cases from around the country in other areas involving statutory classifications helps point out the majority’s error. Of course, these cases reveal the general proposition that courts defer to the legislature in reviewing social and economic statutes. I agree with the majority that this deference does not mean that a court can never apply a rational basis test to find social or economic legislation in violation of an equal protection clause. Different conclusions can legitimately result, but courts must be sure that the conflict is based on the law, not policy.
*21 The various decisions among states on the constitutionality of statutes that exempt or favor certain trucking industries from complying with highway weight restrictions serves as an example of how courts can legitimately reach different results. See Lorrie M. Marcil, Note, State Statutes That Exempt Favored Industries From Meeting Highway Weight Restrictions: Constitutionality Under the Equal Protection Clause, 1984 Duke L.J. 963 (1984). The conflict by courts in this particular area has not occurred by judicial inquiry into and disagreement with the legislative objectives at work behind the statute, but by an examination of the relationship of the statute’s objective and the resulting classification. See id. at 980-81 . In other words, those courts that have found statutes governing exceptions to highway weight restrictions to violate equal protection accept the legislative objectives and purposes to be legitimate, but conclude the pursuit of one purpose (highway safety) by the legislature under the guise of another purpose (favoring a particular industry) is impermissible because the discriminatory classification created between favored and unfavored industries, within the context of the legislative decision to govern the weight of vehicles, is wholly arbitrary. See id.; see also State v. Amyot, 119 N.H. 671 , 407 A.2d 812, 813-14 (N.H.1979); Sterling H. Nelson & Sons, Inc. v. Bender, 95 Idaho 813 , 520 P.2d 860, 862-63 (Idaho 1974). Although economic legislation remains a sensitive area for judicial interference, an inquiry into the relationship between the objectives of the statute and the resulting classification is the only area of analysis that can account for different judicial views. 10
In this case, the legislature uses a taxation statute to pursue the objective of economic development by favoring riverboats over racetracks. Taxation is an area laden with social and economic policy, which is a legislative function to develop. Moreover, it is entirely reasonable and appropriate for a legislature to use taxation to create classifications that favor one person or entity over another. “Where the public interest is served one business may be left untaxed and another taxed, in order to promote the one, or to restrict or suppress the other.” Carmichael v. S. Coal & Coke Co., 301 U.S. 495, 512 , 57 S.Ct. 868, 873-74 , 81 L.Ed. 1245, 1255 (1937) (citations omitted). Moreover,
it has repeatedly been held and appears to be entirely settled that a statute which encourages the location within the State of needed and useful industries by exempting them, though not also others, from its taxes is not arbitrary and does not violate [equal protection guarantees].
Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528 , 79 S.Ct. 437, 441 , 3 L.Ed.2d 480, 485 (1959). This principle cannot be called into question. It is applied all the time in the legislative arena, and is the basis of much of the economic policy of our state and our country. A contrary approach would turn government on its head. Courts are obligated to trust the legisla *22 tive branch and the people who elect our legislators to devise the economic policies that drive our economy.
A court’s view of economic policy must not trump the views of those elected to craft policy within the legislative arena. “[A] constitution is not intended to embody a particular economic theory.... It is made for people of fundamentally differing views.... ” Lochner, 198 U.S. at 75-76 , 25 S.Ct. at 547 , 49 L.Ed. at 949 (Holmes, J., dissenting). As Justice Holmes wisely cautioned:
Courts should be careful not to extend [the express prohibitions of the constitution] beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.
Tyson & Brother-United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418, 446 , 47 S.Ct. 426, 434 , 71 L.Ed. 718, 729 (1927) (Holmes, J., dissenting).
From an analytical standpoint, the only accepted means for a court to legitimately find a taxation case of this nature violates equal protection is by considering the relationship between the object of the taxation statute and the classification that results. Here, our legislature used the taxation statute with an objective to foster economic development. The classification exists under the statute to promote the riverboat industry and stimulate economic development. Both objectives are certainly legitimate and compatible, and the favoritism granted to riverboats is done in a straightforward manner under a statute that exists to accomplish the specific goal, not under a statute that serves a different purpose. Thus, unlike the conflict among courts over weight-restriction statutes, the basis for the classification in this case relates directly to the object of the statute. Consequently, the case ultimately comes down to whether the discriminatory classification is too underinclusive. This is the only legitimate area of inquiry from which the majority can strike down the statute.
The majority, of course, claims riverboats and racetracks are the same enterprise, which makes the different classification created by the legislation wholly arbitrary. It acknowledges the “overin-clusive-underinclusive dichotomy” is normally applied only to a strict scrutiny analysis, and is only helpful to a rational basis analysis when a classification involves “extreme degrees of overinclusion and underinclusion” in relationship to the legislative goal. Bierkamp, 293 N.W.2d at 584. Clearly, this approach has limited value in an equal protection analysis. Yet, the majority evades this limitation by repeatedly claiming that there is no recognizable difference between riverboats and racetracks. This claim has no basis in fact, and accepting it as the foundation or premise that drives the analysis leads to a pure and simple act of legislating. Clearly, the law does not favor the position of the majority, so the facts become unnecessarily circumscribed to conform to the very narrow window available to render the statute unconstitutional under our equal protection clause. Yet, the majority’s reasoning imposes serious consequences upon the legislative branch, which has justifiably relied upon its freedom granted under the law to create classifications in tax statutes by imposing a greater tax burden on one of the two types of gambling enterprises permitted in Iowa.
Mathematical exactness between the goal of the statute and the means selected by the legislature to achieve that goal is not required. See Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 814 , 96 S.Ct. 2488, 2500 , 49 L.Ed.2d 220, 234 (1976) (“[I]n the [economic] area ... the Equal Protection Clause does not demand a sur *23 veyor’s precision” in creating classifications.); Sperfslage, 480 N.W.2d at 49 (“Taxation is not an exact science.”). Instead, it has been widely recognized, for perhaps as long as Iowa has been a state, that:
The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernable; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void [pursuant to equal protection guarantees]....
Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 , 33 S.Ct. 441, 443 , 57 L.Ed. 730, 734 (1913); accord Sperfslage, 480 N.W.2d at 49 ; Motor Club of Iowa, 265 N.W.2d at 154 ; Dickinson, 240 Iowa at 398-99 , 35 N.W.2d at 71 . Thus, under the rational basis analysis, courts are compelled “to accept the legislature’s generalizations even when there is an imperfect fit between means and end” and a classification is not unconstitutional “ ‘ “because in practice it results in some inequality” ’ ”. Heller v. Doe by Doe, 509 U.S. 312, 321 , 113 S.Ct. 2637, 2643 , 125 L.Ed.2d 257, 271 (1993) (citations omitted); accord Sperfslage, 480 N.W.2d at 49 ; Motor Club of Iowa, 265 N.W.2d at 154 ; Dickinson, 240 Iowa at 401 , 35 N.W.2d at 72 . A tax classification simply requires some “reasonable distinction, or difference in state policy.” Allied Stores of Ohio, Inc., 358 U.S. at 528 , 79 S.Ct. at 441 , 3 L.Ed.2d at 485 ; accord Motor Club of Iowa, 265 N.W.2d at 154 (“The differences on which the classification is based need not be great or conspicuous.”); Dickinson, 240 Iowa at 401 , 35 N.W.2d at 72 .
Our legislature could have realistically considered riverboats to be as different from racetracks as night is from day. Yet, the majority concludes that riverboats and racetracks are the same because both produce revenue from gambling and both contribute to economic development. Although the two enterprises both produce gambling revenues, they are very different in very legitimate ways. Not only do they operate with vastly different approaches, they contribute to economic development in Iowa in very different ways. The majority argues that. riverboats and racetracks are the same because they have the same potential to contribute to the economic development of the communities in which they are located. This may or may not be true (our legislature may know, which helps explain why the decision is their decision), but it simply misses the point and ignores the obvious reality of the situation. It is not important that both industries help the area economy in which they are located. Instead, what is important from the perspective of using a taxation statute is that riverboats can be located in many more communities than racetracks and can provide economic benefit for far more Iowa communities than racetracks.
The majority claims that this reality is not common knowledge that our legislature could have contemplated, but such a statement ignores the world around us. It ignores that racetracks require a large metropolitan area to operate and survive, or some other unique circumstances. Dog and horse racing-is a specialized industry that would quickly fold if not located in a unique area that is capable of supporting it. Racetracks are sparsely located, not only around Iowa, but around the country. This is common knowledge. See Federal Land Bank, 426 N.W.2d at 157 (“In evaluating the reasons for [a] classification ... we are obliged to consider ‘matters of com *24 mon knowledge and common report and the history of the times.’ ” (Citation omitted.)). Riverboats, on the other hand, are not encumbered with the special industry needs of horse and dog racing. Consequently, they can go into smaller communities in which racetracks cannot. This distinction is clearly shown by the current location of riverboats around Iowa, as well as the numerous proposed sites for additional riverboats around the state.
Perhaps the best test for the legitimacy of a classification made by a legislature is to consider if it actually promotes the public welfare. As Justice Frankfurter observed:
the great divide in [equal protection] decisions lies in the difference between emphasizing the actualities or the abstractions of legislation.... Classification is inherent in legislation; the Equal Protection Clause has not forbidden it. To recognize marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic.
Morey v. Doud, 354 U.S. 457, 472 , 77 S.Ct. 1344, 1354 , 1 L.Ed.2d 1485, 1495-96 (1957) (Frankfurter, J., dissenting). Without question, the current and proposed riverboats in Iowa show that many more Iowa communities can benefit from riverboat gambling than racetrack gambling. It is entirely conceivable that our legislature could have foreseen, in choosing the different tax structure, the very circumstances occurring today. See generally Tim Jami-son, The Boat Vote: Stakes High Tuesday in Gambling Referendum, Waterloo-Cedar Falls Courier, Oct. 5, 2003, at A1 (“ ‘Look at what’s happening at the Quad Cities, Dubuque, Marquette, Des Moines, Council Bluffs, Tama, everywhere there is gambling in the state,’ ” said the man who “spearheaded the drive for a Black Hawk County riverboat. ‘This will be good for the community.’ ”). The tax break for riverboats was not given as an impermissible preference for the riverboat industry over the racetrack industry. Instead, it was for the public who benefits far greater from riverboat development. The expansion of riverboat gambling in Iowa is something that could have been envisioned by our legislature. The objective to help more Iowa communities- — including those that might be considered a more “typical” Iowa community — certainly could have been a purpose our legislature sought to achieve by favoring riverboats over racetracks. Consequently, the superior economic advantage of riverboats to more Iowa communities justifies a different taxation classification to promote riverboat development.
The majority tries to undercut this reality by pointing out that two racetracks provide economic development to two river communities and one riverboat is located near a nonriver community. Apparently, the majority believes this establishes an “extreme degree[] of overinclusion and underinclusion.” Bierkamp, 293 N.W.2d at 584. If this is so, then the majority has eviscerated the equal protection analysis in the area of taxation. The fact is that there are currently nine riverboats located in five river communities in Iowa along the Mississippi River and two river communities along the Missouri River. There is one riverboat located on a lake near Osceola. There are three racetracks in Iowa, two in river communities. The fact that two racetracks provide economic benefit to two of the seven river communities is far from extreme underinclusion. If this constitutes extreme underinclusion, many of our tax laws are in serious jeopardy.
The majority uses Federal Land Bank to support its logic, but this case is far from helpful to the majority, or even comparable. See 426 N.W.2d 153 . In Federal *25 Land, Bank, we held that a statute that provided for a different redemption period in foreclosure proceedings for purchasers who were lender “members” of one of three federal lending oversight entities than for other “nonmember” lenders violated equal protection. See id. at 156-58 . We noted that the purposes of the different redemption periods — to encourage lenders who did not have a stake in a community to nevertheless help financially strapped farmers retain their homesteads and to pressure nonmember institutions to dispose of foreclosed farmland more quickly — were permissible, but found the different classification was not reasonably related to these purposes because “nonmembers” included individual Iowans who held a mortgage, Iowa insurance companies, Iowa mortgage companies who were not federally insured, and federal land bank associations, all of whom had the same “stake” in the process and were just as likely as “member” institutions to provide forbearance to farmers and dispose of land under similar timing considerations. Id. at 156-57 . Thus, although the purpose of the statute was legitimate, the different classifications included only three groups of lenders and excluded five groups of lenders who could be affected by the statute the same as the three lender groups.
I have no trouble concluding that the underinclusion in Federal Land Bank constitutes an “extreme” degree to justify court intervention on equal protection grounds. Moreover, there was no argument that the five excluded lender groups would not be as likely to help the family farmer as the included Iowa lenders. See id. at 156-57 . This case is vastly different. The underinclusion is far from extreme, and a clear realistic argument exists that the excluded industry does not satisfy the legislative objective in the same manner as the included industry. There are no cases, within or outside of Iowa, that support the majority’s position in this case.
It is also important to observe that the majority attempts to validate its independent interpretation approach on the basis of Bierkamp. 293 N.W.2d 577 . It uses Bierkamp as an example of an instance where this court has rejected a rational basis conclusion of the Supreme Court. This reliance, however, is misplaced.
Any reliance on Bierkamp as authority of this court to apply the equal protection analysis to reach a different conclusion than the Supreme Court in this case fails to recognize that the Supreme Court decision at issue, Silver v. Silver, 280 U.S. 117 , 50 S.Ct. 57 , 74 L.Ed. 221 (1929), was issued fifty-one years prior to Bierkamp. 293 N.W.2d at 579 . It also fails to recognize that we had previously followed Silver. Id. at 581 . It further fails to recognize that we observed a clear trend among other states to depart from the Supreme Court decision because it no longer represented the views of today’s society. See id. at 580-82 . It was, in short, simply an outdated rationale that had lost support. None of this is involved in this case.
In this case, the Supreme Court found a rational basis in the very same case before us, with the very same facts and reasons, as well as the same legal analysis. In this light, it is difficult, if not impossible, to reconcile conflicting court opinions — one finding a reason for the classification to be rational and the other finding the reason to be totally arbitrary — in an area where the legislature is given its broadest authority possible to make classifications. Our law requires that “every reasonable basis upon which [a] classification may be sustained” to be negated. Id. at 579-80 . Instead, the majority negates the decision of the Supreme Court. I know of no other court in the country that has reached a conclusion in conflict with the Supreme *26 Court on remand of the very same case involving a rational basis examination of a tax statute. 11
Finally, I am perhaps most troubled by the systemic values that are trampled through the procedural process seized on by the majority in exercising its judicial independence. In the end, the majority decision nullifies the unanimous judgment of the Supreme Court and effectively renders the Court’s opinion in Fitzgerald advisory and no more. See Richard W. Wes-tling, Comment, Advisory Opinions and the “Constitutionally Required” Adequate and Independent State Grounds Doctrine, 63 Tul. L.Rev. 379, 381 n. 6 (1988); see also Arizona v. Evans, 514 U.S. 1, 32 , 115 S.Ct. 1185, 1202 , 131 L.Ed.2d 34, 58 (1995) (Ginsburg, J., dissenting) (“Even if [state courts’] reinstatements [of prior judgments on remand] do not render the Supreme Court’s opinion technically 'advisory,’ they do suggest that the Court unnecessarily spent its resources on cases better left ... to state-court solution.” (Citation omitted.)). This is an affront to the Supreme Court and the principles of federalism that underlie the entire judicial system.
As acknowledged, one of our court’s primary and overarching purposes is to faithfully and carefully serve as the final arbiter of our state constitution. The Supreme Court serves the same role in relation to the federal constitution. Both courts have the duty to be conscientious stewards of the federal or a state constitution when it is invoked in the course of a case before it. These duties — which create numerous potential conflicts caused by differing interpretations of federal and state constitutional provisions by the two courts — form one of the bedrock functions of our judicial system.
The Supreme Court has wrestled with its role in relation to state courts of last resort and articulated standards by which a state court can protect its right to be the final arbiter of its state’s constitution. At the same time, the Court has sought to protect its role as final arbiter of federal constitutional principles. To these ends, the Court has recognized:
This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds. The reason is so obvious it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its view of federal laws, our review could amount to nothing more than an advisory opinion.
*27 Herb v. Pitcairn, 324 U.S. 117 , 125-26, 65 S.Ct. 459, 463 , 89 L.Ed. 789, 794-95 (1945) (citations omitted); Westling, 63 Tul. L.Rev. at 403 (“If the Supreme Court issues [an advisory] opinion, notwithstanding the ban, its opinion falls into a noncategory of judicial decisions ... in conflict with the notions of limited jurisdiction, stare deci-sis, and constitutionally required doctrines of justiciability.”). The Court’s most important recent pronouncement in this area came in Michigan v. Long, 463 U.S. 1032, 1037-42 , 103 S.Ct. 3469, 3474-77 , 77 L.Ed.2d 1201, 1212-15 (1983). There, the Court reexamined the “adequate and independent state grounds” standard and, in effect, requested the cooperation of state courts of last resort to help prevent the Court from infringing upon the state court’s application of state constitutional principles. Id. at 1041 , 103 S.Ct. at 3476-77 , 77 L.Ed.2d at 1214-15 (articulating the “plain statement” standard, by which a state court can convey to the Court that any invocation of federal principles in its disposition of a case was merely for the purpose of supporting a judgment or opinion based on “adequate and independent state grounds”).
We did not state in RACI that our opinion was based on “adequate and independent state grounds” nor did we even indicate that might be the case. Long, 463 U.S. at 1042 , 103 S.Ct. at 3477 , 77 L.Ed.2d at 1215 ; accord RACI, 648 N.W.2d 555 . Instead, we observed that “Iowa courts are to ‘apply the same analysis in considering the state equal protection claims as ... in considering the federal equal protection claim.” RACI, 648 N.W.2d at 558 . In the absence of a signal as to whether our decision was based predominantly on state principles rather than federal principles, the Supreme Court assumed we had intermixed those principles in our decision and assumed jurisdiction of the case to exercise its duty to protect the federal constitution from an errant interpretation by our court. See Fitzgerald, 539 U.S. at - , 123 S.Ct. at 2158-59, 156 L.Ed.2d at 102 (“We have previously held that, [in circumstances in which a state court states that it applies the same equal protection analysis in considering federal and state equal protection claims], we shall consider a state-court decision as resting upon federal grounds sufficient to support this Court’s jurisdiction.”); see also Westling, 63 Tul. L.Rev. at 389.
While our apparent inadvertence in designating the basis for our decision in RACI is troubling, the effect of that choice is compounded by the majority result reached in this case. In reaching its decision, the majority notes that we have not always followed federal constitutional jurisprudence in interpreting Iowa’s equal protection clause and determines that our analysis in this case reaches a result different from that of the Supreme Court. Even if these were acceptable conclusions standing alone, both simply serve at this point to effectively resurrect “adequate and independent state grounds” on which RACI could have been based. Long, 463 U.S. at 1042 , 103 S.Ct. at 3477 , 77 L.Ed.2d at 1215 . Yet, these considerations are only revealed now on remand from the Supreme Court, which assumed jurisdiction based on our statement that our federal and state equal protection analyses are the same.
In the end, the majority is taking a second bite at an apple that has long since dropped and rolled away from our tree. While this may be our prerogative, it does not make the exercise of this prerogative any less injurious to the systemic values implicated in this case. The majority opinion in RACI I stated that our equal protection analyses under both constitutions are the same. The majority opinion here, in RACI II, reveals that our equal protection *28 analyses are different. Not only is this reconsideration intellectually inconsistent, it is also offensive to the Supreme Court, its important role in the judicial system, and the principles of federalism on which our entire system operates. In the end, the parties to this appeal will receive a final resolution of their controversy only after needlessly taking the case before the Supreme Court. Moreover, the Supreme Court will have needlessly considered an issue that could have been resolved if the majority had discovered and emphasized the supposed differences in our analyses during the course of our first consideration of this case.
The decision of the majority causes great harm to the law, to the concept of federalism, to the doctrine of judicial economy, to the essential reliability of legal principles, and to the balance of power within our government. Perhaps most troubling of all, it also causes a great injustice to the people of Iowa. It is never an easy decision to dissent, but that decision has never been easier than in this case.
. State court activism in the interpretation of state constitutions is beneficial and should be encouraged. See generally William J. Bren-rian, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489 (1977) (providing the most influential discussion of the advantages of such an approach). Just as federal courts help guide state courts in the area of constitutional interpretation, state courts can also help guide federal courts.
Unfortunately, the majority effectively uses the doctrine of independent review as substantive authority for its conclusion in this case. It seizes on the doctrine only after the United State Supreme Court determined our initial consideration of the matter was flawed and uses it to justify a decision directly contrary to the Court. Yet, the doctrine exists as mere authority for an independent review of a claim under our state constitution. It does not alter the legal principles we share with the Court that clearly instruct that the tax statute at issue in this case is not unconstitutional.
. Reference to Lochner v. New York, 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 (1905), is fitting in light of the generally accepted view that it constituted the nadir of Supreme Court oversight of the legislative process. See 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 15.4, at 600 (1999) ("[T]he independent review of legislation during this period resulted in an unprincipled judicial control of social and economic legislation.”). The majority's approach and resolution of this appeal echoes the Supreme Court's Lochner-era decisions. It must be left to posterity to determine whether the majority opinion will someday be viewed as we now view Lochner .
. I most likely would have no disagreement with the majority if our legislature had used a gambling licensing fee, for example, instead of a taxation statute to establish a different classification between riverboats and racetracks, under the guise of providing economic benefits to river communities. Under such a statute, the payment of variant licensing fees would likely have no rational relationship to economic development. In this case, however, the majority reaches the equal protection violation by rejecting the legislative objectives and forces at work in the statute, even though the objectives of the classification (promote riverboat development) conform to a purpose of the tax statute (promote economic development).
. Other courts have reached a decision contrary to the Supreme Court on remand in the same case, but these decisions have typically come in areas involving individual rights in the criminal case context. See People v. Ramos, 37 Cal.3d 136 , 207 Cal.Rptr. 800 , 689 P.2d 430, 444 (Cal.1984); Van Arsdall v. State, 524 A.2d 3, 13 (Del.1987); Sitz v. Dep’t of State Police, 443 Mich. 744 , 506 N.W.2d 209, 224 (Mich.1993); People v. P.J. Video, Inc., 68 N.Y.2d 296 , 508 N.Y.S.2d 907 , 501 N.E.2d 556, 564-65 (N.Y.1986); People v. Class, 67 N.Y.2d 431 , 503 N.Y.S.2d 313 , 494 N.E.2d 444, 445 (N.Y.1986); Commonwealth v. Labron, 547 Pa. 344 , 690 A.2d 228, 228-29 (Pa.1997); State v. Chrisman, 100 Wash.2d 814, 676 P.2d 419, 424 (Wash.1984). The principles elucidated and applied in these types of cases are vastly different from the principles applicable to an equal protection analysis of a tax statute.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9698541. Public record. Not legal advice.