CEDAR RAPIDS — After the GOP-controlled Iowa Legislature this year approved changes in Iowa’s 57-year-old judicial nominating procedure, Democrats challenged the constitutionality of the new law.
Eight Democratic lawmakers, a Cedar Rapids attorney and members of the judicial nominating commission asked the Supreme Court to overturn Senate File 638.
In challenging the law, the plaintiffs said lawmakers violated rules against “logrolling” by including unrelated matters in one bill and violated the requirement that the title of a bill contain the subject matter. In this case, the title included no mention of the judicial nominating commission.
They also called the portion of SF 638 dealing with judicial nominating procedures a violation of the constitutional establishment of coequal branches of government. Previously, the judicial commission had eight attorneys and eight gubernatorial appointees. The senior Supreme Court justice was the 17th member. SF 638 eliminated that role and gave the governor nine appointees. The bill also directed the court to elect a chief justice every two years. The term and selection of the chief justice is a matter for the court, not the Legislature, according to the lawsuit filed in Polk County District Court.
What’s happened since
So far, there have been no rulings on the issues raised in the lawsuit, according to Cedar Rapids attorney Bob Rush, a plaintiff in the original case. All the action has been on procedural issues.
The district court ruled the lawmakers and Rush didn’t have standing to bring their case. That was appealed to the Supreme Court, which typically hears constitutional questions. The justices transferred the case to the appeals court.
However, a second lawsuit was filed by Des Moines attorney Thomas Duff, who argued he was denied an opportunity to serve on the Court of Appeals when the nominating commission with nine governor appointees did not nominate him to fill the vacancy. The court agreed with that argument that “the presence of a past injury is enough to confer constitutional standing.”
Rush, a former legislator, is preparing to argue Duff’s case before the five Court of Appeals judges Dec. 11. The state, represented by the Attorney General’s Office, had asked that the Supreme Court’s nine justices heard arguments.
The state also sought to have the original case and Duff’s consolidated. Rush argued that the new judicial nominating commission already has made recommendations to fill vacancies, so a delay in a court ruling could result in more appointments under what plaintiffs consider an unconstitutional process.
“We don’t want to delay a decision because there is a vacancy on the Court of Appeals,” Rush explained.
The appeals court agreed with the plaintiffs, but has not ruled on their appeal of the lower court decision that they didn’t have standing to bring their challenge,
Rush would like to get that ruling before the Dec. 11 Duff hearing.
In the Duff case, Rush will argue that the constitutional questions are of “great public importance” and should be heard by the court.
SF 638 “changed nearly 60 years of choosing judges on merit to appointing them based on a political process,” Rush said.
In explaining the case, Rush referred to a 1958 recommendation from the Supreme Court calling for merit-based selection of judges and for a nominating commission with equal numbers of attorneys and appointed members.
That recommendation became part of the Iowa Constitution after being approved by two successive sessions of the Legislature and by Iowa voters.
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