Government

Did Gov. Reynolds miss the deadline to appoint a district judge? A Des Moines lawyer will argue Monday in court she did

Sixth Judicial Distirct Senior Judge Nancy A. Baumgartner goes to hug newly sworn-in Judge Jason Besler during Besler’s investiture ceremony at the Linn County Courthouse in Cedar Rapids, Iowa, on Friday, July 27, 2018. Besler, 44, replaces the vacancy left by Judge Marsha Bergan, who retired this past September. Besler was an assistant Linn County attorney for 18 years. (Jim Slosiarek/The Gazette)
Sixth Judicial Distirct Senior Judge Nancy A. Baumgartner goes to hug newly sworn-in Judge Jason Besler during Besler’s investiture ceremony at the Linn County Courthouse in Cedar Rapids, Iowa, on Friday, July 27, 2018. Besler, 44, replaces the vacancy left by Judge Marsha Bergan, who retired this past September. Besler was an assistant Linn County attorney for 18 years. (Jim Slosiarek/The Gazette)
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IOWA CITY — A Des Moines lawyer will argue Monday before a judge that he has the right to challenge the appointment of 6th Judicial District Judge Jason Besler because Gov. Kim Reynolds missed the 30-day deadline required for the appointment.

Gary Dickey, who served as chief of staff for former Democratic Gov. Tom Vilsack, claims he can make the challenge for the state of Iowa, acting as the prosecutor because Johnson County Attorney Janet Lyness and Iowa Attorney General Tom Miller have declined to challenge Besler’s appointment, according to his application filed last month. According to law, “any citizen of the state” can bring a civil action to resolve a dispute over whether a specific person has the legal right to hold a public office.

Dickey, in his application, also claims he has standing to bring the action because he’s an attorney with cases pending in the 6th Judicial District and if Besler lacks the authority to hold this office, then Dickey has suffered injury or at least, risk of injury, different from the public. 

As a taxpayer, he can take action to prevent unlawful acts by public officers which would increase the amount of taxes he is required to pay or “diminish a fund which he has contributed,” Dickey also argues in his application. Besler’s salary as a judge comes from the general fund that Dickey has contributed with his state income taxes, he said.

Dickey said the “standing requirement” or right to bring the claim should be excused or waived because this case involves a question of “great public importance and interest in our system of government."

Assistant Iowa Attorney General Emily Willits, Besler’s attorney, said in her resistance that Dickey cannot challenge Besler’s appointment because he must have a "special interest" and some type of injury different from the general population.

The only people who could “plausibly” say they were injured by Besler’s appointment are Iowa Supreme Court Chief Justice Cady and the other nominee, Ellen Ramsey-Kacena, Willits said.

According to Iowa’s Constitution and laws, if the governor fails to make judicial appointment within 30 days, the remedy is for the chief justice to make the appointment, but Cady through his attorney “respectfully defers to and accepts the decision by Gov. Reynolds that this appointment was made on June 21,” Willits said in her brief.

“The Chief Justice’s decision whether to appoint a judge following the 30-day period is his alone, and this court should not void the appointment after he has declined to do so,” Willits said. 

She also points out, even if Dickey succeeded in his action to remove Besler from office, the court couldn’t force Justice Cady to make the appointment, which could create a situation where it would be left open indefinitely, which why there is a 30-day requirement.     

There are no allegations Gov. Reynolds intentionally delayed the appointment or didn’t select one of the two nominees forwarded by the district nominating commission, Willits said.

“Removal from office is an extreme remedy, even where there are specific and egregious allegations of wrongdoing on the part of the officeholder,” Willits said.

This action is inappropriate in this case where there has been no allegations of wrongdoing on Besler’s part, she added. 

Dickey said Friday his purpose in filing a lawsuit is to remove the “legal uncertainty arising from Governor Reynolds’ untimely appointment. It would be my hope that he continues to serve on the bench once the cloud is removed.”

Last November, Justice Mark Cady said that he wouldn’t “confirm or ratify” Besler’s appointment because the governor’s office failed to meet the deadline for the appointment. Because of that, he said, he had no authority under the state Constitution to confirm the judge.

Then Lyness and Miller declined to file a petition challenging Besler’s judgeship.

The questions on the appointment surfaced he wasn’t contacted by Reynolds about his appointment until June 25, four days past the deadline.

The 6th Judicial District Nominating Commission selected him and Ramsey-Kacena on May 21. The governor then had 30 days to appoint, according to Iowa law.

Reynolds, in a June 25 news release, said she made the appointment June 21. But Besler, 6th Judicial District Chief Judge Patrick Grady and the Iowa Supreme Court were not told until June 25.

Reynolds spokeswoman Brenna Smith told The Gazette in a June 25 email that the governor planned to contact Besler when she appointed him June 21, but “attention to flooding and other matters” delayed the call.

Fifth Judicial District Judge Robert Hanson will preside over the hearing on Monday and make a ruling on whether Dickey can file his civil petition. l Comments: (319) 398-8318; trish.mehaffey@thegazette.com

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