Ousted justices could affect court caseloads

If one or all three of the Iowa Supreme Court justices up for retention are unseated in November, the court could be down to four on the bench for three months, which would likely affect opinions and case reviews.

The merit selection process usually takes about three months, but in this situation the State Nominating Commission couldn't start its vetting of candidates until Nov. 29, when the election results are certified.

The commission, comprised of lay people and lawyers, has to allow time for lawyers and judges to apply and then the commission has 60 days to select three nominees to send to the governor. The governor then makes his  appointment within 30 days.

There have only been four judges unseated in retention elections since Iowa adopted the merit system in 1962 but this year the system is under attack.

Bob Vander Plaats, former gubernatorial candidate, started the campaign to oust Chief Justice Marsha Ternus and justices David Baker and Michael Streit, who were part of the unanimous vote declaring the ban on same-sex marriage unconstitutional.

Vander Plaats said he wants to unseat the justices based on this one decision. He says they are “activist” judges and they over stepped their bounds by legislating from the bench.

David Boyd, state court administrator, said realistically, a new justice or justices might not be seated until March or April because after the governor makes the appointment, the lawyer or judge usually needs a little time to wrap up work in a practice or other duties.

Of course, this would also depend on how the commission makes its selection, Boyd said. In the past, when there has been multiple vacancies the commission selects more than three and presents all names to the governor who can fill all the vacancies at once.

When the Court of Appeals started in 1976, all five judges were chosen at once, Boyd said. The commission sent 15 names to the governor to appoint five. In 1999, when the court increased to nine, the commission again sent 15 names to the governor to appoint three.

Iowa Supreme Court Justice Mark Cady, the chairman of the nominating commission, said it would be his decision on how to fill more than once vacancy.

“It's an extensive background process but the concern is not to have a delay in the court,” Cady said. “The obvious concern would be to have a majority vote. It's a seven member process. I don't want to make decisions with less.”

According to 2009 statistics compiled by the court, the justices caseload included 108 opinions, 465 cases had further review and 3,741 orders were made on other motions. More than 50 court rules were amended or added, such as child support guidelines and basic skills course requirement for newly admitted lawyers.

The justices also handle numerous administrative duties including the judicial branch operating budget, requests for legislation, bar admissions/bar conduct and continuing legal education.

Cady said he wasn't thinking of the possibility of all three justices being unseated.

“It's unimaginable of what it would do to us as a court,” Cady said.

A question that has come up during retention forums or discussions is if the three justices aren't retained could they be reappointed or renominated.

Former Justice Linda Neuman, on the bench from 1986-2003, said no but there's nothing in the state constitution to prohibit any of the justices from reapplying and going through the process again. However, “it's highly unlikely” anyone would put themselves through it, she said.

“The likelihood of a governor appointing them again (if they went through the process)…well, I couldn't speculate but it would be hard to imagine,” she said.

John Whiston, University of Iowa College of Law professor, agreed with Neuman's interpretation of the constitution that the justices would be eligible to reapply but he seriously doubts they would go through the process after being rejected.

“No governor would do it (appoint them again),” Whiston said.