Branstad's unusual judicial commission nominee

Clark Kauffman has a interesting story in today’s Des Moines Register about William Gustoff, one of Governor Terry Branstad’s two recent appointees to the State Judicial Nominating commission. Apparently it is unprecedented for an Iowa governor to name an attorney to this commission. Gubernatorial appointees are typically non-lawyers, while the State Bar Association selects lawyers to serve. Kauffman noticed something else I didn’t realize about Gustoff:

Gustoff is among four lawyers representing four Iowans in a federal lawsuit against the nominating commission.

Ironically, one of the claims made by the plaintiffs in that case is that the makeup of the commission – half lawyers, half lay people – is biased against nonlawyers because they have no say in the selection of half the commission.

The lawsuit was first filed in December. In February, it was dismissed by a federal judge who said the plaintiffs failed to show a clear violation of their constitutional rights. An appeal is now pending in the 8th U.S. Circuit Court of Appeals.

Gustoff said that although he is listed as the lead attorney for one of the plaintiffs, his involvement in the case was minimal at first and is almost nonexistent now.

“I’m not really that involved in it,” he said. “I haven’t taken any steps to remove myself from the case as the attorney of record. But I am not admitted to the 8th Circuit Court of Appeals, so I can’t file anything now, and I really have nothing to do with it at this point.”

Gustoff said he’s not a trial lawyer, and his practice is focused on estate planning and nonprofit law. As a result, he said, he will bring to the commission the perspective of an average citizen, rather than that of a typical lawyer.

Asked why, if he specializes in estate planning and nonprofits, he was hired to handle the lawsuit against the commission, Gustoff said he’s not sure. “They got me from somewhere,” he said, laughing. “I don’t know. I never asked them how they got my name.”

Gustoff works in the law firm of Whitaker Hagenow, which is run by Chris Hagenow, a Republican state representative who has sponsored legislation to abolish the Judicial Nominating Commission, and Matt Whitaker, a former Supreme Court applicant who has accused the commission of manipulating the selection of Supreme Court justices.

Neither Hagenow’s bill nor other proposals to change the judicial nominating system made it past the Iowa legislature’s “funnel” deadline last week.

Bleeding Heartland discussed the federal lawsuit against the judicial nominating commission here. The case seems quite weak. It’s telling that the attorneys running the show in this politically-motivated lawsuit selected Gustoff (a partner in a conservative law firm) as opposed to some Iowa attorney with experience in litigation or constitutional law.

Kauffman paraphrases Branstad spokesman Tim Albrecht as confirming that the governor picked Gustoff “because of his conservative leanings.” Branstad’s other appointee to the judicial nominating commission is a non-laywer, Helen St. Clair of Melrose. She is presumably related to Maurice St. Clair of Melrose, who donated about $45,000 to Branstad’s gubernatorial campaign. Most of the remaining members of the judicial nominating commission are registered Democrats.

UPDATE: Nathan Tucker calls Kauffman’s article “journalistic malpractice”. Excerpts from his case are after the jump.

Gustoff simply served as local counsel on the case at the trial court level because the lead attorneys were not admitted to practice before the court.  Now that the case is pending before the 8th Circuit Court of Appeals, a court in which Gustoff is not admitted to practice, he is no longer an attorney with the case.

His representation, such as it was, ended when the trial portion of the case ended.  Gustoff has told The Iowa Republican that, in the event the 8th Circuit remands the case back to the trial court, he will file a formal withdrawal from the case.  As explained to Kauffman, but apparently forgotten, there is currently nothing for Gustoff to withdraw from.

Kauffman also insinuates that Gustoff’s appointment violates the Iowa Constitution’s prohibition against selecting Commission members by party affiliation.  His sole grounds for this accusation, however, is his contention that Tim Albrecht, Branstad’s spokesman, told him Gustoff was selected “because of his conservative leanings.”

If Kaufmann would reference the email Albrecht sent him, he would find that Albrecht instead wrote that: “Gov. Branstad chose these two individuals because he felt the commission needed strong, articulate conservatives.”  When asked by The Iowa Republican if this was a reference to a judicial philosophy or party affiliation, Albrecht responded that it was a reference to “philosophy” because the administration believes “the commission needs balance.”

Continuing in his attack, Kauffman argues that Gustoff’s appointment violates the spirit, if not the letter, of the Iowa Constitution because, “[h]istorically, governors have appointed only nonlawyers to the panel, while Iowa lawyers elect an equal number of lawyers to the commission to ensure balance in its composition.”

There is nothing, however, in either the Constitution or the Iowa Code, that requires the governor-appointed members to be nonlawyers and the lawyer-elected members to be lawyers.  Kauffman also failed to disclose that two of the current appointed members of the Commission are married to attorneys-Coleen A. Denefe and Dr. Margaret Redenbaugh.  Additionally, Carolyn Braley, wife of attorney and Congressman Bruce Braley, had recently served on a trial court nominating commission.

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