Potential legal challenges loom over every case District Court Judge Jason Besler handles unless Iowa Supreme Court Chief Justice Mark Cady intervenes to ensure that Besler lawfully holds his current position.
Cady has not signed any document filling the Judicial District 6 vacancy, judicial branch communications director Steve Davis confirmed to Bleeding Heartland on October 2. Davis has declined further comment on questions surrounding the legality of Governor Kim Reynolds' appointment of Besler.
As Bleeding Heartland reported last month, the Iowa Constitution stipulates that power to appoint judges passes to the chief justice if the governor fails to act within 30 days. The governor's office did not tell anyone Reynolds had selected Besler until four days after her authority to make that appointment had lapsed. However, Cady accepted the unconvincing official story contending that Reynolds met the deadline.
Numerous attorneys have predicted a wave of appeals in criminal and civil cases that land on Besler's docket in six eastern Iowa counties. The ensuing litigation could last for months or years.
Cady alone could end the uncertainty quickly. He should exercise his power to do so.
David Pitt reported for the Associated Press on September 20 that Des Moines attorney Gary Dickey "is preparing documents asking Cady to issue an order formally ratifying the appointment" of Besler.
"Until this issue is resolved with some finality, it does call into question the jurisdiction of the judge and his rulings," said Dickey, who served as former Democratic Gov. Tom Vilsack's chief attorney. "I think for the benefit of Iowans, they need to know whether or not their judge was appointed according to the constitution and has the authority to issue rulings."
Guy Cook, past president of the Iowa Bar Association and a former member of the State Judicial Nominating Commission, likewise told Pitt there could be "consequences" to missing the deadline for appointing Besler.
Four other attorneys concurred while speaking to journalists on a September 24 Iowa Democratic Party press call. Ray Blase, who worked as a prosecutor for 29 years, predicted "hundreds and hundreds of appeals" in criminal cases. "If you're the family of a murder victim, and this judge issues a search warrant and important evidence is gathered by the police," that evidence will be challenged at trial.
Blase speculated that public defenders will file some of the first challenges, because they "have an ethical obligation to zealously defend and represent their clients." For a defense attorney to proceed in any case without raising these issues "is going to sow the seeds for future appeals or post-conviction relief actions." Arguably, Besler has "no more authority than any other lawyer in that courtroom."
Mike Keller, who has practiced law in Des Moines for many years, highlighted problems this "travesty" could cause in civil lawsuits. Already "many people don't seek redress in our courts" because litigation is an "exceptionally expensive endeavor." People might have invested $100,000 or $200,000 in a lawsuit before getting to trial. If the case lands before Besler, "all that might be for naught," because "There's no way that any order he enters, any judgment [or] verdict he affirms isn't subject to challenge" by the party receiving an adverse ruling.
Marc Harding, another lawyer in private practice, pointed out that "the constitution is clear" about the time frame in which the governor must act. Keller echoed that sentiment: "You can't read the Iowa Constitution and believe that Judge Besler has been duly appointed under the constitution. It's just impossible." George Appleby, who has decades of experience in civil and criminal law, commented that deadlines spelled out in the constitution or Iowa Code are "definite. They're not discretionary, and they're not waivable. The dates require certain action."
Missing a legal deadline can lead to "terrible consequences, dire consequences," Appleby said. "Whole cases can be lost if even a day is missed on a filing." If Appleby were representing a client in Besler's courtroom, he would consider it his duty to file an appeal challenging whether the judge's ruling was a "legitimately entered decision by an Iowa court."
To readers who may object that all of the attorneys named above are Democrats: many others have privately expressed similar sentiments since I broke this story. One put it to me this way: if any party filed a petition four days after the date permitted by law, the court "would summarily dismiss the petition" and "not entertain stories about what the plaintiff’s intent was before the filing deadline passed." No lawyer has contacted me to explain how Besler's appointment met the constitutional guidelines.
In Keller's words, "it just doesn't pass the smell test" to say Reynolds picked Besler on June 21 but failed to tell anyone about it, when her office did notify the public about a different judge she named that very same day. Keller called on the governor's office to step up and acknowledge that Reynolds missed the deadline. But they are sticking to their story. Now what?
There is no precedent for this situation, because no Iowa governor has missed the 30-day window for appointing a judge since Iowa enacted the current judicial selection system in 1962.
Every week, more cases in the sixth judicial district will be assigned to Besler. So the sooner the mess is fixed, the better.
Cady could put the questions to rest in a day. Granted, he is in an awkward position, since his counsel wrote to the governor's chief of staff in July, "the chief justice respectfully defers to and accepts the decision by Governor Reynolds that this appointment was made on June 21." Even so, Cady could change his stance to prevent a wave of appeals from clogging Iowa's already overburdened judicial system.
Understandably, the chief justice may wish to avoid creating bad press for the governor during the late stages of a campaign. If so, he could ratify Besler's appointment immediately after the November election. That approach would be better than letting appeals work their way through the courts over many months. By the time the Iowa Supreme Court considers one or more of the cases, pressure to allow a possibly illegal appointment to stand will be enormous, because of how many of the judge's actions could be nullified if the justices applied the plain language of the state constitution and Iowa Code.
"The constitution says what the constitution says," Harding stated on the Iowa Democratic Party's recent press call. It "needs to be followed." One person in Iowa can make sure that happens.
P.S.- On a related note, a clear directive from the Iowa Supreme Court about backdating official documents would be welcome. Speaking for the the Iowa Judicial Branch, Davis has declined to comment on whether it was lawful or appropriate for Besler's formal appointment and commission certificate to be dated June 21. Staff for Reynolds have acknowledged that the governor and Secretary of State Paul Pate signed that certificate at some later time.
As Bleeding Heartland discussed in the previous post, backdating can be a legitimate way to memorialize an earlier event, but only when there is "some independent confirmation the acts occurred on the stated date." In addition, lawyers are advised to disclose the actual date of execution when they produce a backdated document. Besler's appointment certificate did not indicate when state officials signed it.
After reading about the Besler controversy, one attorney told me privately, "I doubt that backdating of official documents like this is legal, and it certainly is not good practice." Another noted,
If you memorialise, there is no reason not to put today's date on a document you say memorialises an oral agreement entered into yesterday. If it is legitimate, be transparent. You just specify "as of" or make a defined "Effective Date" [....] There is no reason to doctor the document's signature. That just smells like a rat. In this case where there was a deadline, it looks fraudulent on its face.