Foxhoven's lawyer interviews for governor-appointed appeals court seat: 'My timing is not very good'

Attorney Thomas Duff applied to fill vacancy before taking on ousted DHS chief as client

Former Iowa DHS Director Jerry Foxhoven and his attorney, Thomas Duff, at a news conference in West Des Moines on August
Former Iowa DHS Director Jerry Foxhoven and his attorney, Thomas Duff, at a news conference in West Des Moines on August 1, 2019 (Michaela Ramm/The Gazette)

DES MOINES — Talk about bad timing.

West Des Moines attorney Thomas Duff applied as a candidate for Gov. Kim Reynolds to consider for a vacant Iowa Court of Appeals judgeship days before he agreed to represent ousted Department of Human Services Director Jerry Foxhoven in a wrongful termination claim under applicable whistleblower laws against the Reynolds administration.

“I will tell you my timing is not very good,” Duff told the 17-member State Judicial Nominating Commission who conducted interviews of 20 minutes each Monday for nine men and seven women who applied to replace Judge Gayle Vogel on the state appellate panel. Vogel retired on July 1.

Duff said he filed his application “before Mr. Foxhoven ended up at my doorstep” and felt an obligation to “get that out of the way first” in making his sales pitch to the commission to consider him for the judicial-branch position.

“I would say to you I’m in the business of filing lawsuits and representing people, and I don’t turn away what I believe to be good cases with good clients,” said Duff, who has been practicing private law both for plaintiffs and defendants for 30 years. “I have every confidence that if I were honored enough to get to have an interview in front of the governor that she would be able to put that aside and realize that I am doing what lawyers do and that is represent their clients.”

Duff’s fate became a moot point when the commission chose Ames attorney Timothy Gartin, District Judge Myron Gookin of Fairfield and District Judge Julie Schumacher of Schleswig as the three candidates whose names were submitted to the governor for consideration.

Foxhoven and Duff held a news conference last week in which the attorney said he plans to file a legal claim on Foxhoven’s behalf with the State Appeal Board before moving forward with a lawsuit against the state. He expected the process would span 18 months to two years to resolve unless a settlement can be worked out to Foxhoven’s liking.

In announcing his intention to sue the state of Iowa over his forced resignation, Foxhoven said he questioned the legality of the funding of a staff position for a person within the Governor’s Office whom he believed no longer was furthering the department’s goals. However, he said before he could consult with the Iowa Attorney General’s Office on the matter, he was told by an official in Reynolds’ administration to sign a letter of resignation, turn in his phone and leave a state job he’d held for two years.


In a statement issued last week, Reynolds said, “As I have consistently shared with Iowans, many factors went into my decision to ask for Jerry Foxhoven’s resignation. Foxhoven never raised concerns with me or my staff about the salary agreements in question, and he never asked my staff for a legal opinion or said he would be reaching out to the Attorney General’s Office for one.

“I would never ask anyone to do something they thought was illegal. My focus remains on the many Iowans that DHS serves, and I am committed to selecting a new director who will take this agency to the next level,” the governor added.

During Monday’s appellate court interviews, Duff told the commission he would bring a sense of fairness to the appellate court and believed he could draw on his experience as a statewide plaintiff and defense attorney who also worked as mediator and arbitrator, and handled complicated areas of the law dealing with medical negligence, personal injury, product liability, civil rights and employment discrimination cases.

Asked during his commission interview if there was an area where Duff was concerned the public is losing confidence in the court system, he replied “I do have a belief that, particularly at the national level, that the court system is becoming politicized and unfortunately I see that creeping into our system, the Iowa system, which I think for years has had a reputation of being not a political system. I’m afraid that that’s been creeping into our system and I think that undermines people’s confidence in the court.”

Sioux City attorney Joel Vos said he viewed the Iowa Court of Appeals as “the work horse court in terms of cases.”

The list of applicants seeking to fill the vacancy created by Vogel’s retirement included one assistant U.S. attorney, three assistant Iowa attorneys general, seven state judges and five private attorneys.

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