News Center

February 11th, 2011

Answering FOIA

By Nathan Tucker

In response to Freedom of Information Act (FOIA) requests made by Iowa Judicial Watch (IJW), some of which were made back in December, the State Judicial Nominating Commission has finally seen fit to provide some of the requested documents, including the Commission’s internal correspondence and minutes.  Though largely mundane, they do provide some insight into the procedures the Commission adopted.

The Commission first met by telephone conference on November 15th to discuss how to proceed with the process, though no decisions were finalized.   In preparation for its next meeting on November 29, David Boyd, the Court Administrator and Secretary of the Commission, forwarded to all commissioners copies of material prepared by Iowa-based American Judicature Society (AJS).

AJS, which has received $1.0938 million from George Soros’ Open Society Institute and its affiliated Justice at Stake campaign, is a member of the Justice, Not Politics pro-retention group.  Though AJS supports the Missouri Plan, its Director of Research has recently admitted that:  “This review of social scientific research on merit selection systems does not lend much credence to proponents’ claims that merit selection insulates judicial selection from political forces, makes judges accountable to the public, and identifies judges who are substantially different from judges chosen through other systems…”

At its November 29th meeting, the Commission discussed forming a public relations committee to do outreach.  Boyd’s handwritten notes indicate that the Commission had initially planned on holding the interviews in the Capital Building, providing for live-streaming over the Internet but closing the spectator galleries to the public.  Two of the commissioners opposed this idea, though their names and reasons are not recorded.

At this meeting, the Commission also discussed releasing the application material submitted by those seeking a position on the Supreme Court.  The Commission decided to only release the bare-bones Applicant Summary Resume, opting to “deal with the fallout over the questionnaire if, and when, such a request is received.”

The Commission quickly changed its mind and decided to release both documents after learning of IJW’s FOIA request for material from the 3B Judicial District Nominating Commission concerning a vacancy in the Sioux City area.  However, in anticipation of making the Questionnaire public, the Commission modified it to protect against identity theft.

Though most of the changes to the Questionnaire were minor, the Commission used this opportunity to make overly-broad changes to the final question.  This question used to ask applicants for any additional information the Commission should be aware of that would reflect either positively or negatively on the applicant.  This question was divided so that only the positive material would be on the Questionnaire while the negative information would be listed on the nonpublic confidential form.

The internal correspondence reveals that at least one commissioner wanted to complete the entire interview/voting process in three days rather then the four it actually took.  Commissioners David Cochran, Madalin Williams, and Justice Wiggins wanted to discuss the merits of the candidates in the evenings during the week of the interviews, but from the Commission’s minutes this idea appears to have been vetoed.  Consequently, it appears that the only time the commissioners deliberated on the sixty applicants was for a six-hour period on Thursday afternoon after concluding the final interview at noon.

Two of the sixty applicants, Court of Appeals Judge Gayle Vogel and Loraine May, filed their application material after the deadline set by the Commission “to be most favorably considered for balloting.”  Advising the commissioners, David Boyd cited Rule 2 of the Commission’s Internal Rules for the proposition that they were not “limited to those [applicants] who actually apply, timely or not.”  Rule 2 simply states:

Responsibility of Commission:  It is the duty of the Commission to nominate the most qualified persons available for appointment to the Supreme Court of Iowa or the Iowa Court of Appeals.  In carrying out this duty the members of the Commission shall not limit their consideration to persons who have been suggested by others or to persons who are known to be available for appointment to the Supreme Court or Court of Appeals.  The members should always keep in mind that often the persons with the highest qualifications do not actively seek judicial appointment.  Thus it is incumbent upon the members to seek out well-qualified persons and to encourage them to agree to accept nomination.

Though there is nothing in Rule 2 that prohibits the Commission from establishing a deadline by which applications must be filed, the internal rules are apparently a “living document” whose meaning evolves over time and from one reader to the next.

Finally, among the documents released by the Commission is state representative Richard Anderson’s letter formally withdrawing his name as an applicant.  Though two other applicants also withdrew their names, it doesn’t appear that they did so in writing.  Anderson’s letter is as follows:

My prior service as a judicial law clerk for Iowa Supreme Court Justice Jerry Larson of Harlan, Iowa remains one of the highlights of my professional career.  I was deeply touched by the wisdom which came from his rural Iowa values.  When I clerked, the justices of the Iowa Supreme Court were distributed throughout the state and broadly reflected the different legal practice perspectives and judicial philosophies found in Iowa.  I think that was good for the court.

I believe remaining in the legislature as chairman of the House Judiciary Committee at this time allows me to better serve the people of the State of Iowa.  As such I will not be submitting my final application.

I filed the letter of intent and preliminary application for the Iowa Supreme Court to ensure that there was an applicant from rural Iowa who shared Justice Larson’s perspective, philosophy and values.  After reviewing the list of applicants I see that there are several well qualified applicants who do.  I trust they will be given a fair review.

The original documents can be found by clicking here. While certainly informative, none of these memorandum and letters reveal how the Commission defined ”merit” or why the nine nominees it chose are supposed to be the very best of the best of the best of the sixty applicants.

Those decisions took place behind closed doors and, even if released, minutes of those meetings will likely be purposefully bare-boned and uneventful.  It is imperative, therefore, that this essentially political process be made transparent from start to finish by subjecting it to the state’s Open Meeting laws.  As the Des Moines Register recently editorialized:  “Of course the public should be able to witness [public hiring] from beginning to end.”

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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