Study: State could keep better tabs on special interests

Iowa's judicial branch flunked a recent public accountability and transparency study because of its barriers to information, lack of legal requirements for judicial evaluations and concerns over potential conflicts.

Those concerns include the public's limited access to judicial officers' asset disclosures — which can reveal potential conflicts of interest but aren't audited for accuracy — and a lack of restrictions on judges returning to the private sector after serving on the bench.

The failing grade came despite a recent milestone in the judicial branch, which completed a statewide rollout of its Electronic Document Management System earlier this year. The system makes public court records available online. But full access still is restricted to judges, lawyers, court administrators, aggregators and those involved in cases.

The State Integrity Investigation, released last month by the non-profits Center for Public Integrity and Global Integrity, examined various measures of transparency and accountability in state government across 13 categories. IowaWatch was involved in conducting the survey of Iowa government.

The judicial branch was one of two categories that earned a failing grade for Iowa. The other was lobbying regulation.

Multiple efforts by IowaWatch to reach out to the judicial branch for a comment on its failing grade were turned down by Steve Davis, communications director for the judicial branch. However, Davis responded to questions for the survey earlier in the year.

The survey examined accessibility both in law and in practice. In some cases, actions of a single judge can cut off access to the court despite laws protecting it.

District Judge James Richardson was able to derail coverage of a May 2013 vehicular homicide trial in Audubon County by forbidding note-taking by a newspaper reporter for the Daily Times Herald in Carroll.

'The reporter was writing in a notepad and the judge said he couldn't. If jurors saw him writing it would bias the jurors because they would think what was being said was more important,' said Jared Strong, a reporter at the Herald.

Note taking is common in court coverage. In fact, court rules allow liveblogging, video and still cameras in the courtroom. However, provisions within the expanded news media coverage law allow magistrates and judges to attach conditions or limit coverage for reasons including protection of rights to a fair trial.

The Herald reported the note-taking ban in its coverage and the ban was picked up by national media blogger Jim Romenesko.

Judge Richardson stuck to the decision despite attempts by the chief district judge, Jeffrey Larson, to reverse it. Strong said the paper eventually had to threaten to sue before Richardson agreed to allow the reporter, an intern who had just started at the paper, to take notes in the courtroom as long as members of the jury couldn't see him.

Media coverage of court cases can provide useful insights to the public that can't be accomplished by reading records, said Zack Kucharski, executive editor of The Gazette, who serves as expanded media coordinator for the 6th Judicial District in Eastern Iowa.

'People can understand the courts at a much better level if they watch a case unfold,' he said. 'You're able to watch interactions, you're able to watch emotions, you're able to understand the variety of challenges that are going on in the courtroom at any given time.'

Earning confidence

Questions about disclosure of judges' assets racked up the most low scores in the Center for Public Integrity and Global Integrity survey because of barriers to public access to reports about those assets and lack of auditing.

Asset disclosures are annual forms filed by judges and magistrates containing a list of businesses, outside occupations or professions and any sources of income they have greater than $1,000.

The disclosures can reveal potential conflicts of interest, showing what financial stakes a judge or magistrate might have in a case.

The disclosures in Iowa did not meet the survey's requirements for easy access. The documents are not available for free online — requesters must contact the Iowa Supreme Court clerk's office and copied documents can incur a printing fee — and do not meet requirements for open data formats, which includes things like machine readability.

Additionally, the forms are not audited for accuracy although staff verifies that the forms are turned in, Davis, the judicial branch's spokesperson, said in an email.

For those who fail to submit the document, the Judicial Qualifications Commission sends an email warning noting that failure to respond could result in action, including possible discipline.

Johannes Tonn, a research manager with Global Integrity who worked on developing the survey, said the focus on asset disclosures, both within the judicial branch and in other areas of government, is a key part of evaluating trust in government.

'Making sure that judges are clear about where their financial interests lie and making people see that they are impartial and they aren't deciding in favor of particular interest or entity is definitely important so people can have trust in the impartiality of judges,' Tonn said.

A judge is responsible for recusing him or herself when a conflict of interest arises. However, it could be beneficial for lawyers to have easier access to those documents, said Maura Strass­berg, a law professor at Drake University.

'Lawyers do have the ability to request that a judge recuse themselves and the more information you have the better,' she said.

Returning to the private sector

Once a judge leaves the bench, he or she is free to return to the private sector.

The integrity survey required a cooling-off period for state-level judges before taking a private sector position that could present a conflict of interest, like trying to influence former colleagues. Work in an unrelated field did not require restrictions.

Iowa law does not limit a judge's post-bench work in the private sector, unlike the situation facing state officials and employees in the legislative and executive branches who are prohibited from entering into certain lobbying jobs for two years after leaving a government position.

In an interview for the survey, former Iowa Supreme Court Justice David L. Baker said judges are restricted from practicing while on the bench, but he didn't see an issue with judges returning to law practice afterward.

'I don't think if I go argue a case in front of a judge that I have any influence over that judge,' Baker said.

He said judges don't work alongside members of the executive or legislative branches so they do not have influence over members of those branches that could be abused if a former judge takes up a lobbying position.

Every two years, the Iowa State Bar Association publishes evaluations of judges standing for retention. The association has conducted the reviews since 1964. However, Iowa Code does not require that evaluations take place or be made public.

'What we are saying is that everyone needs to see in black and white, in a legal format, what are the rules that we play by,' Tonn said. 'The way we measure accountability is by being very clear. You could still do better by actually having it codified in the law.'

Bruce Walker, current bar association president, said the survey does what it is intended to do: provide voters with credible information. Although the evaluation is not legally mandated, Walker said he saw no reason why the association would stop producing the reports.

Evaluations are filed by member lawyers who appear frequently before the judge. Results are published on the bar association's website.

In an interview for the survey, past bar association president Joe Feller said the evaluation isn't influenced by outside factors because the association is independent from state entities.

'The public can have the assurance that the evaluations that we do are truly reflective of the opinions and sentiments of the members of our bar association that work with these judges,' he said.

Online system evolving

The court's Electronic Document Management System was implemented county-by-county beginning in 2010 and reached the final counties — Allamakee, Chickasaw, Howard and Winneshiek — this year. The system makes court documents more accessible to those within the court system by putting them online.

But online access is restricted to judges, lawyers, court administrators, aggregators and those involved in a case. The public still needs to visit a kiosk in the courthouse in the county that originated the document.

Rox Laird, retired editorial writer at the Des Moines Register and past president of the Iowa Freedom of Information Council, said the court was concerned about security and privacy issues by putting so much information online.

From the time e-filing was established in Plymouth County in 2010 to the point at which the final counties came on board this summer, nearly 2 million cases had been filed, including 6.5 million documents, by almost 88,000 users, according to a news release.

'It's one thing to say you can go to Sac County and ask for a court record or maybe a divorce case or a lawsuit that involves financial records,' Laird said. 'You'd have to drive to the courthouse in Sac County and ask for the record and look at it there and make copies. If this is all online, for all 99 counties, the court is worried about these records being scraped by different entities — businesses, scammers, you name it.'

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