UPDATES & ANALYSIS

11.05

Challenge to judicial nominating process to be argued before Iowa Court of Appeals Nov. 6

by Rox Laird | November 5, 2019

The Iowa Court of Appeals will hear arguments Nov 6 at 1:30 p.m. in an appeal of the Polk County District Court’s dismissal of a suit challenging the Legislature’s April 2019 amendment changing the nominating process for Iowa appellate court judges.

Cedar Rapids attorney Bob Rush and other Iowa lawyers, legislators and one current and one former member of the State Judicial Nominating Commission filed suit in May claiming the Legislature violated the Iowa Constitution with legislation that altered the makeup of the commission that interviews applicants for the Iowa Supreme Court and the Iowa Court of Appeals, and sends nominations to the governor.

The District Court dismissed the Rush suit, and a separate motion for an injunction, saying none of the plaintiffs had standing to challenge the legislative act because none of the lawyers, legislators or past and present commission members could demonstrate they were individually harmed.

Rush and the other plaintiffs appealed the District Court ruling to the Iowa Supreme Court, which referred the case to the Court of Appeals.

In their appeal, the appellants seek reversal of the lower court ruling, allowing the case to go to trial.

They argue that the Legislature violated the “one subject” requirement in Article III, Section 29, of the Iowa Constitution by putting the amendment in a larger appropriations bill (Senate File 638) that contained more than one subject, and because the amendment affecting judicial nominations was not expressed in the title of the bill.

Prior to the changes in S.F. 638, the 17-members State Judicial Nominating Commission was composed of eight members appointed by the governor, eight members elected by Iowa lawyers, and it was chaired by the most senior member of the Iowa Supreme Court other than the chief justice.

As amended by S.F. 638, which was signed into law by Gov. Kim Reynolds, nine members are appointed by the governor, eight are elected by lawyers, and the chair is elected from among the commission members, thus removing the senior Supreme Court justice from the commission.

Rush and the other plaintiffs argue that the change dilutes the voting power of the lawyers elected to the commission.

“It provides an absolute majority to one class of commission members while simultaneously putting another class in the minority,” the appellants state in a brief filed with the Supreme Court. “Prior to the change each elected member and each appointed member had .47 shares of the vote (8/17 = .47). Now appointed members have 53% of the vote and elected members 47%. This inherently reduces the relative value of attorneys’ rights under the Constitution and Iowa Code Chapter 46 implementing this provision of the Constitution.”

Rush argues in the alternative that, if the individual plaintiffs are ruled not to have standing, the standing requirement should be waived under an exception recognized by courts for “a matter of great public importance.”

The Iowa Supreme Court “has recognized there are issues of such great public importance to warrant an exception to the standing requirement,” the appellants state in their brief. “The substantive issues before this Court are rare and extraordinary. The challenged legislation radically overturns Iowa’s merit-based system of selecting appellate judges — a system in place for over fifty years.”

Iowa Attorney General Tom Miller, in a brief on behalf of the State, urged that the trial court decision be affirmed, saying the Legislature properly exercised its legislative powers, and while some may disagree with what it did, the decision was the Legislature’s to make and should not be second-guessed by the courts.

“In ruling that Rush lacks standing in this case, the District Court was not insensitive to the strongly-held views of those who believe Iowa’s method for selecting judges didn’t need to change,” the Attorney General’s brief states. “It recognized that some Iowans, including these appellants, vehemently challenge any assumption that S.F. 638 would improve the quality of judges, the judicial branch, or the concept of justice. But the Court’s duty is not to develop or choose among methods for populating the bench. It is to determine whether appellants have standing, without any consideration of whether S.F. 638 is a good idea.”

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