Iowa Supreme Court Chief Justice Mark Cady will not intervene to resolve questions over Jason Besler's status as a district court judge, the Iowa Judicial Branch announced this week. Cady's decision means litigation will settle whether Besler properly exercises his powers or was appointed in violation of the Iowa Constitution.
As Bleeding Heartland first reported last month, Governor Kim Reynolds did not announce her decision to select Besler until four days after her authority to make the appointment had lapsed. The Iowa Constitution calls for the chief justice to fill a judicial vacancy if the governor fails to act within 30 days. However, Reynolds' chief of staff Ryan Koopmans assured Cady's counsel Molly Kottmeyer that the governor had met the constitutional deadline. Reynolds and Secretary of State Paul Pate later signed a certificate that was backdated to create the impression the governor had appointed Besler in time.
Some attorneys, including former Iowa Supreme Court Justice Michael Streit, have called for Cady to settle the matter by ratifying Besler's appointment. But in a message to all Iowa judges on October 8, Kottmeyer said "the chief justice believes he has no constitutional authority to 'ratify' or 'confirm' a judicial appointment." Nor does he think the constitution allows him to appoint Besler at this time.
Cady defers to the governor's claim to have appointed Besler by June 21, despite the lack of documentation. From Kottmeyer's message (click here to read the full text):
With regard to the appointment of Judge Besler, the Governor’s Office told Chief Justice Cady that Governor Reynolds properly exercised her constitutional authority to make the appointment in a timely manner. This determination by the governor deserves respect unless resolved differently through the legal process established to resolve disputes. Under the constitution, only one person can exercise the appointment authority at a time. Additionally, the constitution does not give the chief justice any additional authority to “confirm” or “ratify” a judicial appointment made by a governor. The chief justice only has the power to “make the appointment” if the governor fails to do so.
Chief Justice Cady finds himself in a difficult position, as is Jason Besler and litigants in his courtroom. At this time, there is no simple solution. We operate under a system of laws and must rely on that system. Any exercise of authority that does not exist would do far greater damage to our system of justice. Accordingly, the chief justice believes he has no constitutional authority to “ratify” or “confirm” a judicial appointment. The chief justice will also take no action to exercise his constitutional authority to make a judicial appointment at this time. He will continue to monitor the situation in order to protect the judicial process and all its judges.
As Cady watches and waits, the legal process could unfold in several ways. Criminal defendants sentenced by Besler or litigants with civil cases in his courtroom will likely challenge the judge's actions on appeal, either in state or federal court.
Meanwhile, Des Moines attorney Gary Dickey has asked Johnson County Attorney Janet Lyness to file a quo warranto civil action charging that Besler unlawfully exercises the duties of district court judge. If the county attorney declines to pursue that legal avenue, Dickey (or any Iowa citizen) could file the same kind of claim himself.
The longer the uncertainty continues, the more cases will land before Besler. Because declaring the judge's appointment illegitimate would complicate any cases he has heard, I'm concerned that any judge who eventually considers the matter will face immense pressure to declare that the governor can indeed appoint someone just by thinking about it or mentioning the choice in some conversation. That would set a terrible precedent.