Governor Kim Reynolds may have missed the deadline for appointing a second district court judge in June, Associated Press reporter Ryan Foley has discovered.
Reynolds named Michael Jacobsen to fill a vacancy in Judicial District 5A on June 21, the same day she should have (but failed to) appoint Jason Besler in Judicial District 6.
However, Foley obtained a letter to the governor dated May 17, in which the judicial nominating commission recommended Jacobsen and another candidate for the judgeship. The Iowa Constitution gives the governor 30 days to appoint judges, and state law stipulates, “If the governor fails to make an appointment within thirty days after a list of nominees has been submitted, the appointment shall be made from the list of nominees by the chief justice of the supreme court.” June 21 was more than 30 days after May 17.
The passive voice in Iowa Code is unfortunate. What determines whether a list of judicial nominees “has been submitted”? Does that happen when members of the commission sign a letter to the governor, or when the governor’s office receives the short list? Records point to a breakdown in communication. From Foley’s October 18 report:
But court spokesman Steve Davis said the letter wasn’t sent that day [May 17] and never actually made it to the governor. The commission chairwoman, Judge Martha Mertz, waited until May 22 to try to email the letter to the governor’s office but it bounced back, he said.
Another email she sent with information about the finalists on May 22 went through. Davis and Mertz haven’t responded to questions about the reason for the five-day delay. Jacobsen, the Jasper County Attorney, was appointed 30 days later to the bench in District 5A, which covers several counties in central Iowa.
Reynolds’ chief of staff, Ryan Koopmans, told the state court administrator in a May 22 email that he hadn’t “officially seen the names” for the vacancy but was aware they should have been picked days earlier. The administrator said he would inquire with Mertz, who sent them hours later. […]
Davis said the court system has begun tracking the dates that nominations are considered submitted to the governor, which it didn’t do previously, given “the recent issues surrounding judicial appointments.” He said the system provides training on best practices to commissioners, but they are ultimately independent from all three branches of government.
In the absence of evidence that the governor’s staff received the short list for Judicial District 5A more than 30 days before June 21, litigants lack solid ground to argue that Jacobsen does not rightfully serve as district court judge. In contrast, Besler’s legitimacy will be resolved in state or federal courts, following a likely appeal by one or more parties to cases he has heard, or an unusual quo warranto action charging that he unlawfully holds a public office. Iowa Supreme Court Chief Justice Mark Cady confirmed last week that he will not intervene to ratify Besler’s appointment.
Having someone outside the governor’s office keep an eye on the timeline for judicial vacancies is wise. But while preventing future problems is important, Reynolds and her staff should still be held accountable for misleading Cady and the public about Besler’s appointment. No one from the judicial branch ever responded to my requests for comment about the appointment certificate Reynolds and Iowa Secretary of State Paul Pate signed, which was backdated to create the impression the governor named Besler within the constitutionally-mandated window. Under Iowa law, it is felonious misconduct for any public employee to knowingly falsify a public record.