UPDATES & ANALYSIS

U.S. Supreme Court to Consider Three Iowa Cases on September 24

by Ryan Koopmans | September 13, 2012

By Ryan Koopmans

When the justices of the U.S. Supreme Court meet for their conference on September 24, they’ll consider whether to add several high-profile cases to their docket; chief among them, the California “Prop 8” case and the challenge to the federal Defense of Marriage Act.  More specific to Iowa, however, the Court could decide whether Sholom Rubashkin will serve a 27-year sentence, whether Des Moines must pay $40 million at the expense of its property owners, and whether Iowa lawyers will continue to elect members of the judicial nominating commission.

Those are the general issues in Rubashkin v. United States, City of Des Moines v. Kragnes, and Carlson v. Wiggins, three Iowa-based cases that have received local–and in the case of Rubashkin, national–attention.   The losing party  in each case filed a petition for writ of certiorari with Supreme Court early this year, and the justices will decide whether to grant or deny the petitions during their private conference on the 24th.

Unless at least four justices vote to grant the petition, the lower court opinion stands.  And that’s the likely outcome here, as it is in most cases: the Supreme Court receives about 8,000 cert. petitions each year and grants somewhere between 60-90 of them.  But that said,  it’s not  completely outside the realm of possibility that the Court will hear one of these Iowa cases.

Rubashkin v. United States

Rubashkin’s odds are the best of the three.  The former Agriprocessors manager is arguing that federal district court judge Linda Reade should have recused herself because of her involvement in the preraid planning of the Postville meatpacking plant, and that she should have better explained her reasons for sentencing him to 27 years for bank fraud.  The issues themselves don’t jump out as “cert. worthy” but Rubashkin has lined up a stellar list of lawyers.  As we reported last February, Rubashkin  hired appellate superstar Paul Clement for the Supreme Court challenge.  That will at least ensure that Rubashkin’s petition gets a close read.  Clement, a former Solicitor General, argued seven cases last term, including two of the biggest: the challenge to the Affordable Care Act and Arizona’s immigration laws.  He’s universally respected by lawyers on both ends of the ideological spectrum, and he’s on the short list of would-be Supreme Court justices under a Romney administration, along with Iowan and Eighth Circuit Judge Steven Colloton.

Rubashkin’s legal support doesn’t end there.  Former Solicitor General Seth Wexman submitted an amicus brief on behalf of  86 former government lawyers and judges.  The list, which reads like a who’s who of former DOJ officials, includes former Attorneys General Edwin Meese and Dick Thornburgh, former judge/solicitor general/independent counsel/law-school dean/university president Ken Starr, former FBI directors Louis Freeh and William Sessions, former Deputy Attorney General Larry Thompson, 20 former federal judges, and numerous former United States Attorneys.

Five other groups also filed amicus briefs in Rubashkin’s favor, including the Washington Legal Foundation who enlisted sentencing-law professor and blogger Douglas Berman.  Here are the available briefs:

Petition for certiorari
Brief in opposition
Brief of former Attorneys General et al. in support of petitioner
Washington Legal Foundation and Criminal Law Scholars in support of petitioner
Justice Fellowship and criminal law and sentencing professors and lawyers in support of petitioner
Association of Professional Responsibility Lawyers in support of petitioner

Kragnes v. City of Des Moines

The City of Des Moines hasn’t received that level of support, but it’s not alone in its quest for the Supreme Court.  The City of Dubuque filed an amicus brief in support of Des Moines’s petition.  And former Iowa Supreme Court Justice Mark McCormick is leading the charge for Des Moines.

Last March a majority of the Iowa Supreme Court ruled in Kragnes that Des Moines resident Lisa Kragnes can represent thousands of fellow residents in a lawsuit against the City for illegally charging a franchisee fee for gas and electric services. The City had  argued that class certification was inappropriate because there is a conflict among the class members.  The City implemented the franchise fee in lieu of raising property taxes, and as a result property owners benefited from the franchisee fee.  Thus, the City argued that property owners are in conflict with non-property owners, and that the two cannot be bundled in a single class.  And even if such a class could be certified, the City argued that property owners should be allowed to “opt out” of the class.  As Chief Justice Cady wrote in dissent: “There is little utility in suing yourself, especially when the associated attorney fees and litigation expenses of suing yourself will run into the millions of dollars.”

Des Moines now hopes that the U.S. Supreme Court will agree with Chief Justice Cady’s sentiment.  It asks the Court to consider the following question:

May a court in a class action, consistent with the Due Process Clause, certify a plaintiff class consisting of all payers of a municipal franchise fee, and refuse to allow class members to opt-out, when the lawsuit seeks a class-wide refund that will necessarily have a disparate and negative impact on those class members who pay municipal property taxes?

For her part, Kragnes told the justices in her response that this is little more than an Iowa state-law case, and so the U.S. Supreme Court should let the Iowa Supreme Court’s decision stand.  This nothing-to-see-here-folks approach is often successful, as the U.S. Supreme Court doesn’t weigh in on state-court matters unless there is an important federal constitutional or statutory issue.  But Des Moines says there is: the Iowa Supreme Court’s opinion violates the Due Process Clause, it claims.  We’ll find out if that argument has legs when the Court issues its order after the September 24th conference.  Here are the briefs for City of Des Moines v. Kragnes:

Petition for certiorari
City of Dubuque in support of petitioner
Brief in opposition

Carlson v. Wiggins

Finally, the Justices will consider whether Iowa’s  method for selecting judicial nominating commissioners is constitutional.  Iowa’s Constitution provides that half of the state-wide judicial nominating commission, which sends three applicants to the Governor for each Supreme Court and Court of Appeals vacancy,  must be elected by lawyers (though the constitution doesn’t require that the commissioners themselves be lawyers).  A group of Iowans challenged that process in federal court last year.  Judge Robert Pratt dismissed the lawsuit and the Eighth Circuit affirmed that decision.

The challengers, represented by campaign-finance crusader James Bopp Jr., now want the Supreme Court to hear the issue.  Their chances are low, since the Eighth Circuit upheld Iowa’s commission-voting process and no court has parted ways with that decision to create  the “circuit split” that the Supreme Court often looks for when taking its cases.  But there’s always a chance.  The challengers present these two issues to the Supreme Court:

This Court in Kramer v. Union Free School Dist.15, 395 U.S. 621, 626 (1969) established that the Fourteenth Amendment’s Equal Protection Clause applies to elections and that restrictions on who can vote in elections are subject to strict scrutiny. Iowa, like nine other states, selects its appellate judges by mandatory gubernatorial appointment of nominees from a 15-member Commission, of which 7 are elected solely by members of the Iowa Bar Association. The Eighth Circuit held that this did not violate Iowa voters’ rights under the Equal Protection Clause.

(1) Whether the election of Iowa Judicial Commission members is a general interest election in which all voters are entitled to vote under the Fourteenth Amendment’s Equal ProtectionClause.

(2) Whether Iowa’s election of 7 Commission members solely by attorneys fails strict scrutiny.

The entire cert. petition is here.  Iowa Solicitor General Mark Schantz filed a brief in opposition, but the Attorney General’s office has not responded to our requests for a copy.

Tags: U.S Supreme Court