Des Moines attorney Gary Dickey has filed an unusual civil action charging that Jason Besler "is unlawfully holding the public office of district court judge" in Iowa's Sixth Judicial District. In a November 1 court filing, enclosed in full below, Dickey argued that "all publicly available information" indicates Governor Kim Reynolds failed to appoint Besler within the 30-day window specified by Iowa's constitution. Bleeding Heartland reported in September that Reynolds took no formal action to appoint Besler until four days after her authority to fill the judicial vacancy had lapsed.
An obscure provision in Iowa’s Rules of Civil Procedure allows any citizen to file a writ of quo warranto challenging someone's authority to hold a public office, if a county attorney declines to do so. Last month, Dickey asked Johnson County Attorney Janet Lyness to take that step, since Johnson County is part of the district where Besler has been on the bench since July. Lyness informed Dickey on October 19 that she would not file the petition. Iowa Attorney General Tom Miller also will not pursue this civil action, according to Dickey's court filing.
The lawsuit states that Reynolds could have appointed Besler by notifying him or the judicial nominating commission or Iowa Supreme Court Chief Justice Mark Cady or the general public by June 21, or by "contemporaneously memorializing the appointment in writing." The governor "failed to take any of these steps before June 25, 2018."
Reynolds has subsequently claimed she told her chief of staff Ryan Koopmans before the deadline that she wanted to appoint Besler. But "simply informing her chief of staff of her decision is insufficient to constitute the official act of filling a district court vacancy," Dickey's petition states. (He is familiar with the judicial appointment process, having served as legal counsel to Governor Tom Vilsack.)
Dickey filed a separate motion to change the venue of the trial from Johnson County to Polk County, "In order to avoid the appearance of impropriety that would arise from having a colleague of Mr. Besler's from the Sixth Judicial District decide the legality of his purported appointment." That motion noted that Polk County "is an appropriate venue because the witnesses from the Governor's Office as well as the attorneys for both parties are located there."
One point of clarification: Dickey's court filing asserts that Reynolds and Iowa Secretary of State Paul Pate acknowledge Besler's appointment and commission certificate, dated June 21, "was actually signed on June 25, 2018." Staff working for the governor and secretary of state have never confirmed when that document was signed--only that the event happened "sometime after June 21." Such formal certificates are not printed in house and often arrive at the governor's office weeks later, Reynolds' spokesperson told me.
Many attorneys have predicted that Besler's rulings or actions in civil or criminal cases or other actions could be appealed on the grounds that he does not legitimately hold the office. For that reason, Michael Gartner argued in his latest column for the Des Moines publication Cityview, "There’s only one way out" of this "mess."
Besler should resign. The judicial nominating commission for the Sixth District then should meet, come up with two names and send them to the Governor, whomever that may be by the time the process runs its course. If Besler’s name in on the list, so be it. If he is chosen, then he’d be a legitimate judge. If he isn’t chosen, well, he can blame his brief career as a judge on the carelessness or arrogance of the Governor and her staff.
Since the Iowa Constitution gives the chief justice the authority to appoint judges if the governor fails to act within 30 days, some have urged Cady to ratify Besler's appointment. However, Cady "believes he has no constitutional authority to 'ratify' or 'confirm' a judicial appointment," his legal counsel informed all Iowa judges last month.
Appendix: Gary Dickey's November 1 filing in Johnson County District Court: