Appeals court rejects challenge to merit selection for Iowa judges

The U.S. Court of Appeals for the Eighth Circuit has affirmed a lower court’s dismissal of a lawsuit challenging Iowa’s merit selection system for judges. Follow me after the jump for background on yesterday’s ruling.

Iowans did away with judicial elections by adopting a constitutional amendment in 1962. Here’s how the system works:

While Iowans no longer select judges by popular election, they continue to play a fundamental role in deciding who serves on the judiciary.  Iowans:  

* May serve on judicial nominating commissions.

* Suggest the name of an applicant to be considered for a judgeship.

* Provide a nominating commission with comments about individual applicants for the bench.

* Vote whether or not to keep a judge in office for another term.

[…]

State Nominating Commission

The State Judicial Nominating Commission interviews applicants and selects nominees for appointment to the Iowa Supreme Court as well as the Iowa Court of Appeals.  This commission is composed of a chair, seven commissioners elected by lawyers, and seven commissioners appointed by the governor and confirmed by the Iowa Senate.  The chair is the senior justice of the Iowa Supreme Court, other than the chief justice.  All commissioners, but the chair, serve for a term of six years.    

Within sixty days of receiving the notice from the secretary of state, the commission must submit the names of nominees to the governor. The commission selects three nominees for appointment to the Supreme Court, and three nominees for appointment to the Court of Appeals.    

District Nominating Commissions

District judicial nominating commissions are responsible for screening applicants and selecting nominees for district court judgeships.  There is a nominating commission for each of Iowa’s fourteen judicial election subdistricts.  Each district commission has eleven members, including a chair, who is the most senior district court judge in the district, five members elected by lawyers, and five members appointed by the governor.  Each commissioner, except the chair, serves a six-year term.  The district nominating provides the governor with a slate of two nominees from which to make an appointment to the district court.

County Magistrate Appointing Commissions

Each county has a magistrate appointing commission to assist with the selection of district associate judges, associate juvenile or probate judges, and magistrates.  Each magistrate nominating commission is composed of the following members:  a district court judge who serves as chair and who is designated by the chief judge of the judicial district, up to three non-lawyer members appointed by the board of supervisors, and up to two attorneys elected by the attorneys in the county.  The board of supervisors may not appoint an active law enforcement officer as a commissioner.  A county attorney may not serve on the commission.  Commissioners, except for the district court judge, serve six-year terms.    

For decades, Iowa’s merit selection system was uncontroversial. However, the Iowa Supreme Court’s Varnum v Brien decision on marriage in 2009 fueled conservative criticism of the judiciary on many fronts. Some commentators charged that Democrats dominated Iowa’s judicial nominating commissions. Certain Republican lawmakers tried to prohibit judges from citing case law in their rulings, bring back judicial elections or change other criteria for selecting Iowa Supreme Court justices. Others tried to impeach the Supreme Court justices who concurred in Varnum v Brien. None of those proposals advanced in the Iowa legislature.

Iowans voted in November 2010 against retaining three Iowa Supreme Court justices, leaving the State Judicial Nominating Commission in a position to help select their replacements. In December 2010, Indiana attorney Jim Bopp of the James Madison Center for Free Speech spearheaded a federal lawsuit seeking to overturn Iowa’s merit selection system.

The complaint on behalf of four Iowa citizens claimed that letting members of the Iowa State Bar Association elect seven of the fifteen State Judicial Nominating Commission members violates the U.S. Constitution on equal protection grounds. Supposedly this system discriminates against Iowans who are not attorneys. The lawsuit also sought an injunction preventing the State Judicial Nominating Commission from filling the Iowa Supreme Court vacancies. Click here for the full text of the complaint.

I found it ironic that Bopp would use an equal-protection argument against merit selection, since no one was bothered by Iowa’s judicial selection system before the Varnum v Brien ruling, which relied heavily on equal-protection doctrine. Todd Dorman noted the irony of conservatives who “railed against” the Iowa Supreme Court for striking down the Defense of Marriage Act “now asking the federal court to overturn the will of the people who adopted the constitutional amendment in 1962.”

During the 2010 election campaign, Terry Branstad advocated a “federal model” that would give the governor a freer hand in choosing judges. Under that reform, which would require an amendment to the state constitution, the governor would be able to appoint judges, who would be subject to confirmation by the Iowa Senate.

Branstad tacitly endorsed Bopp’s federal lawsuit by appointing William Gustoff, the local counsel for the four plaintiffs, to the State Judicial Nominating Commission. (The Iowa Senate later declined to confirm Gustoff.) Most of Branstad’s appointees to the State Judicial Nominating Commission have donated to Republican candidates or the Republican Party. One has advocated for replacing the merit selection system with the “federal model.”

Unlike Branstad, U.S. District Court Judge Robert Pratt didn’t think much of Bopp’s case. In January 2011 Pratt granted Iowa Attorney General Tom Miller’s motion to dismiss the lawsuit.

In his 35-page ruling, Judge Pratt called the plaintiffs’ arguments “fatally flawed.”  In granting the state’s motion to dismiss, Pratt wrote that the plaintiffs “may prefer that Iowa had a different method of judicial selection, but absent a violation of a clearly-established constitutional right, the people of Iowa are entitled to retain the judicial selection system they chose in 1962.”

The full text of Pratt’s ruling is here (pdf). The plaintiffs sought to have the court subject Iowa’s judicial selection system to the “strict scrutiny” standard used in civil rights cases, rather than the “rational basis” standard, under which a law is constitutional if the state has a rational basis for imposing the rules in question. Pratt rejected that argument on pages 24 and 25 of his decision:

Because the Elective Members [of the State Judicial Nominating Commission] are not representatives in the relevant sense, Iowa voters do not have a constitutional right to vote for them. […] The mere fact that the people of Iowa decided to grant members of the Iowa Bar the ability to vote for the Elective Members does not, as Plaintiffs suggest, somehow magically vest Plaintiffs with a constitutional right to vote in that election. […] For all of these reasons, the Court concludes that the challenged provisions do not implicate Plaintiffs’ fundamental right to vote. Therefore, the challenged provisions do not trigger strict scrutiny, but are subject only to rational basis review.

Pratt also concluded that various judicial rulings cited by the plaintiffs are not relevant to the case at hand, and that the complaint exaggerates the impact of the State Judicial Nominating Commission on the daily lives of Iowans (pp. 31 and 32).

Although the Commission has the power to affect the composition of a portion of the Iowa judiciary,19 Plaintiffs have not suggested–let alone pled sufficient facts to support a

reasonable inference that–the Commission has any power to affect the specific outcomes of any judicial decisions. Therefore, the Court rejects Plaintiffs’ attempt to conflate the powers of the Commission with the powers of the Iowa judiciary.

Contrary to Plaintiffs’ assertions, the Commission has no duties, functions or powers which directly affect the daily lives of all Iowans. See Dool, 2010 WL 4568993, at *2. The Court acknowledges that, by participating in the selection of judges, the Commission may have, in some sense, an effect on the development of the common law in Iowa. However, the Commission’s ability to affect the development of the common law is, at best, highly indirect and remote. Plaintiffs have not cited-and the Court is not aware of any-cases where this type of indirect, remote effect has been found sufficient to trigger the application of strict scrutiny.

Under the “rational basis” standard, plaintiffs must prove that no reasonably conceivable set of facts “could provide a rational basis” for the law being challenged. Pratt granted the state of Iowa’s motion to dismiss after concluding that the plaintiffs failed to meet their burden of proof (pp. 33 and 34):

Plaintiffs do not seriously dispute that the state of Iowa has a legitimate interest in selecting well-qualified judges to serve on the Iowa State Supreme Court and Iowa Court of Appeals. However, Plaintiffs argue that the method by which the Elective Members are chosen is not rationally related to that interest. Plaintiffs argue that, even if attorneys are better situated to evaluate legal qualifications than the public at large, that fact would only provide a rational basis for the inclusion of attorneys on the Commission-not for having those attorneys selected by other members of the Iowa Bar. See Clerk’s No. 36 at 3; Hr’g Tr. 17:16-19. The Court does not agree. It is conceivable that the people of Iowa, when they chose to adopt the current judicial selection system, believed that attorneys were not only better able to select judges, but also better able to select Commission members from their peers. […] Plaintiffs have not pled any facts that negative this conceivable, reasonable rationale. See Garrett, 531 U.S. at 367. Therefore, for this reason alone, Plaintiffs have failed to meet their burden. See id.

Additionally, the state of Iowa has a legitimate interest in increasing judicial legitimacy by decreasing the role of partisan politics in the judicial selection process. […] The method of selecting the Elective Members is rationally related to this interest because it means that some-though not all-of the Commission members are selected without direct involvement of the political branches of government. Indeed, in choosing the present system, Iowans may have reasonably sought to avoid a partisan confirmation process, which can become-as it has at the federal level-“quite nasty and brutish.” […] They may also have sought to avoid the “redundancy and inefficiency” that characterizes systems in which the Governor appoints all of the members of the judicial nominating commission. […] Plaintiffs have not pled any facts that negative these additional conceivable, reasonable rationales. See Garrett, 531 U.S. at 367.

Because Plaintiffs have failed to plead sufficient facts to establish that the challenged provisions violate the Equal Protection Clause, Count 2 fails to state a claim for which relief may be granted.

Bopp appealed Pratt’s ruling, but yesterday a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s dismissal of the lawsuit. Click here (pdf) for the ruling authored by Judge Kermit Bye. Excerpt:

Applying rational basis review, we agree with the district court Iowa’s system of election for the Commission’s attorney members by and from members of the Iowa Bar is rationally related to Iowa’s legitimate interests. Undoubtedly, the State of Iowa has a legitimate interest in selecting the most highly qualified candidates to serve as judges on the Iowa Supreme Court and the Iowa Court of Appeals. Candidates must be members of the Iowa Bar, see Iowa Code § 46.14, and are generally expected to have strong credentials, recognized integrity, and a distinguished legal career. Candidates must also demonstrate a commitment to promoting and upholding the independence, integrity, and impartiality of Iowa’s judiciary, if appointed. […] Thus, who better-suited to evaluate the credentials of judicial aspirants than other members of the Iowa Bar? Attorneys will typically be more familiar with the judicial candidates than the general public. They will be in a better position to evaluate each candidate’s qualifications and determine who has “the legal acumen, the intelligence, and the [judicial] temperament to best serve the people of [Iowa].” […] Accordingly, we conclude Iowa’s legitimate interest in selecting the most qualified judges encompasses an interest in having the views and expertise of Iowa’s attorneys represented on the Commission to assist with this selection. We further conclude the State’s decision to allow members of the Iowa Bar the opportunity to elect seven of their peers to serve as the Commission’s attorney members bears a rational relationship to this legitimate interest. […] Therefore, Iowa’s system for election of the attorney members of the Commission by and from members of the Iowa Bar does not violate Plaintiffs’ rights under the Equal Protection Clause.

Iowa Attorney General Miller welcomed the Appeals Court ruling. Federal courts have rejected similar lawsuits against merit selection systems in Kansas and Alaska.

Any relevant thoughts are welcome in this thread.

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