Government

Iowa Legislature 'ignored the Constitution' with judicial nominating change, lawyer argues

Des Moines attorney passed over for judgeship presses case before appeals court

DES MOINES — An Iowa attorney was wrongfully denied a chance to serve as an appellate judge because of an unconstitutional change in Iowa’s judicial selection process that tilted the balance politically in favor of the governor, his lawyer told an Iowa Court of Appeals panel Wednesday.

Cedar Rapids lawyer Bob Rush urged a five-member appeals panel to uphold a district judge’s ruling that his client, Des Moines attorney Thomas Duff, suffered a “past injury” when he was denied an opportunity to serve on the Court of Appeals. After a 2019 law change that gave the governor nine appointees, the newly configured 17-member State Judicial Nominating Commission did not nominate Duff to fill the vacancy.

Rush asked the judges to grant a temporary injunction while a separate case is litigated challenging the constitutionality of a law he argued was passed “in the middle of the night” by majority Republicans. He said the GOP used a “logrolling” technique that led to a “surprise” amendment being added to Senate File 638, a “catch-all” standing appropriations bill. The amendment gave the governor the power to appoint nine of 17 members of the commission while eight members are elected by Iowa lawyers. The law removed Supreme Court Justice David Wiggins from the “eight-eight-one” commission and allowed Reynolds to replace him with her own appointee.

Polk County District Judge Joseph Seidlin ruled in October that Duff has standing to sue Reynolds because he can argue he was injured by his application being considered by the new commission he claims was unconstitutionally created.

“The fatal mistake of the Legislature here is that they ignored the Constitution,” Rush said during oral arguments Wednesday at the Iowa Judicial Building. “They tried to change the Constitution by legislation. You can’t do that.”

However, David Ranscht, an Iowa assistant attorney general representing the governor, countered that Duff was not injured regardless of the commission’s makeup because he was given the same consideration as other applicants and was not selected as a finalist for the court vacancy.

“No person has an expectation or an entitlement about becoming a nominee for a vacant appellant judgeship,” Ranscht told the appellate panel in asking the judges to reverse the district court ruling that Duff has standing and remand the case for dismissal.

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Duff was among a group of candidates who applied to fill a vacancy created by the July 1 retirement of Iowa Court of Appeals Judge Gayle Vogel. His name was not among the three finalists from which Reynolds chose Julie Schumacher to serve on the appeals panel.

“It’s the decision of the commission. The composition alone does not establish an injury,” Ranscht argued.

“There was no changing of the rules,” he added in defending the law signed by Reynolds earlier this year.

“He did not raise a challenge until after he not nominated,” Ranscht noted. “The past conduct can’t justify future relief because no action the court takes can make him a nominee for the past position for which he applied.”

Rush, a former legislator, said the district judge “got it right” in concluding that Duff was entitled to be interviewed by a correctly constituted commission.

Comments: (515) 243-7220; rod.boshart@thegazette.com

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