Iowa Supreme Court won't hear challenges to judicial selection law

No court will ever consider the merits of two challenges to a 2019 law that changed Iowa’s judicial selection process and shortened the chief justice’s term.

In separate orders issued on May 15, six Iowa Supreme Court justices denied the plaintiffs’ request for review of Iowa Court of Appeals rulings, which had dismissed both cases for lack of standing. As is typical for such orders, Chief Justice Susan Christensen did not explain why she and her colleagues chose not to hear the cases. (The newest justice, Matthew McDermott, did not take part in either decision).

A group of Democratic legislators, attorneys, and State Judicial Nominating Commission members filed the first lawsuit days after Governor Kim Reynolds signed the controversial law. They argued that the legislation ran afoul of the Iowa Constitution’s requirements that bills deal with a single subject and have a title accurately reflecting the content, and that changing how the chief justice is selected was “a legislative encroachment on judicial powers.” A Polk County District Court dismissed the case last summer, on the grounds that none of the plaintiffs were injured by the law’s passage.

Thomas Duff, an attorney who had unsuccessfully applied for an Iowa Court of Appeals vacancy, filed a separate lawsuit last September. His case made the same constitutional claims. Duff argued that he “will suffer irreparable injury” if the law stands, because of how it changed the composition of the State Judicial Nominating Commission, which considers applicants for Iowa’s two highest courts.

A different Polk County District Court judge allowed Duff’s case to proceed, on the grounds that the law deprived him of the “opportunity to interview with and be considered by the right commission.” However, the court dismissed Duff’s challenge to provisions that shortened the chief justice’s term, saying those challenges “do not impact him directly, as he is neither a justice of the Iowa Supreme Court nor the Chief Justice.”

Both decisions were appealed to the Iowa Supreme Court, which punted the cases to the Court of Appeals. A panel of five judges dismissed the lawsuits in split decisions released on the same day in February. I’ve enclosed those opinions in full below.

Judge Michael Mullins wrote for the majority in both cases, joined by Chief Judge Thomas Bower and Judge Sharon Soorholtz-Greer. They rejected the claim that the law diluted the votes of elected attorneys on the State Judicial Nomination Commission, because “each individual commissioner had one vote both before and after the law change, and each vote continues to have the same weight or value as the other sixteen votes on the Commission.” Following the same logic, they rejected the claim that the lawyer plaintiffs have standing, because elected attorneys had eight votes on the commission before and after the law changed.

The majority found that the Democratic legislators knew what they were voting on, so the failure of Republican lawmakers to amend the bill’s title when they introduced the judicial changes at the eleventh hour did not constitute fraud or surprise. Nor were their votes diluted during the Iowa House debate. They simply didn’t have the votes to defeat the legislation.

Judge Mullins wasn’t inclined to waive standing requirements to resolve a matter of great public importance, finding that the the issues raised were largely political disputes over the judicial selection process.

In the other case, the majority held that Duff lacked standing to challenge the law because

There is nothing in the legislative history of article V, section 16 that identifies rights of individuals. Duff appeared before the assembled Commission. He did not object. It was only after he was not nominated and after the Governor appointed a judge from the slate of nominees that he objected to the Commission by filing this lawsuit. […] His claim concerning his future plans to apply are purely speculative and reveal no “injury in fact.”

Senior Judge David Danilson partially dissented from both rulings, and Senior Judge Amanda Potterfield concurred in his opinions. Although he agreed that the petitioners had not been injured by the law, he found “the issues raised by these plaintiffs are of great public importance,” so he “would apply the exception to standing” and remand to District Court for proceedings on the merits. Judge Danilson noted that the majority had at several points made “its own judgment on the merits,” disregarding “the standard that we must consider the allegations in the petition as true.”

The partial dissent rejected the idea that the Court of Appeals should not weigh in on a politically charged matter. A controlling precedent from the Iowa Supreme Court “does not state an issue of great public importance exists only in the absence of political overtones or must involve a non-controversial issue.”

Such a decision, finding an exception to the standing requirement, assures access to justice, provides certainty and consistency in the law, and assures our citizens that we will resolve critical issues regarding the state government guaranteed to them under the Iowa Constitution.

It was always apparent that the plaintiffs might struggle to establish their standing to challenge the law. And it was also obvious that conservative justices on the Iowa Supreme Court wanted nothing to do with this case, which raised awkward questions about efforts by one or more justices to lobby reluctant Iowa House Republicans.

Unfortunately, we’ll never know how a court would have resolved the issues at hand, and we may never learn the full extent of Supreme Court Justice Thomas Waterman’s relevant communications with policy-makers when the judicial bill was pending.

Bob Rush, a plaintiff on the first case and the lead attorney on both lawsuits, told Bleeding Heartland that the Supreme Court’s denial of further review in these cases was the “most disappointing decision” in his 50 years of legal practice. He added, “It sends the wrong message. It tells legislators the Constitution can be ignored if they have the votes.”

Appendix 1: Iowa Court of Appeals ruling and partial dissent in Rush et al v. Reynolds

Appendix 2: Iowa Court of Appeals ruling and partial dissent in Duff v. Reynolds

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