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February 20th, 2011

Meet Your New Commissioners

By Nathan Tucker

The election for three seats on the State Judicial Nominating Commission is now over and Iowa Judicial Watch (IJW) has learned, through yet another Freedom of Information Act (FOIA) request, who the new commissioners are.  There are also nineteen new district court nominating commissioners who, though all but one appear to have been unlawfully appointed, led to the appointment of fourteen new trial judges, of which there is only one registered Republican.

State Judicial Nominating Commissioners:

The state nominating commission reviews applicants for the Supreme Court and Court of Appeals and forwards the names of three finalists per vacancy to the governor for appointment.  The governor must appoint one of the three finalists forwarded to him by the commission and, if the governor fails to make an appointment within 30 days, the decision falls to the chief justice of the Supreme Court.

The commission currently consists of fifteen members.  Seven are selected by the governor (and confirmed by the Senate), and seven are lawyers elected by resident attorneys practicing in the state.  Appointed and elected commissioners serve for staggered six-year terms.  The final seat is reserved for the chair of the commission, who is the most senior Supreme Court justice who is not the chief justice.  The current chair of the commission is Justice Wiggins.

The terms of three of the seven elected attorneys will expire June 30th of this year.  The election cycle began when the State Court Administrator sent out a Notice of Election dated November 15, 2010, to all eligible attorneys.  In order to have one’s name placed on the ballot, an attorney had to have a nominating petition signed by at least 50 resident members of the bar in his congressional district.  Nominating petitions had to be filed by January 1, 2011.

Seven candidates filed nominating papers and, on January 6, 2011, ballots were sent out to eligible voters which had to be returned to the Court Administrator by January 31, 2011.  The ballots were then tallied and certified on February 9, 2011.  The results are as follows:

1st Congressional District:

Despite a close race, Martin Diaz pulled off a victory to represent the 1st Congressional District, which in 1965 encompassed Cedar, Des Moines, Henry, Iowa, Jefferson, Johnson, Lee, Louisa, Muscatine, Scott, Van Buren, and Washington counties.

Diaz is an Iowa City trial attorney and registered Democrat.  Altogether, he has given $500 to Democrat Roxanne Conlin’s senate campaign, $2,000 to Democratic Congressman David Loebsack, $7,650 to Democratic Congressman Bruce Braley, $1,750 to Democratic Congressman Leonard Boswell, $500 to Democratic President Barack Obama, $2,500 to Democratic Governor Chet Culver, $1,500 to the Iowa Democratic Party, and $750 to the Johnson County Democratic Central Committee.

Diaz received 175 votes, narrowly holding off Davenport attorney Kent Simmons who received 166 votes.  Robert McMonagle came in third with 95 votes, Darwin Bunger garnered 87, and there were 2 write-in candidates.

2nd Congressional District:

Christine Conover also squeaked out a narrow victory to represent the 2nd Congressional District, which in 1965 included Allamakee, Buchanan, Clayton, Clinton, Delaware, Dubuque, Fayette, Jackson, Jones, Linn, and Winnershiek counties.

Conover is a Cedar Rapids attorney who primarily defends corporations from personal injury lawsuits.  She is a registered Democrat who has given $100 to Attorney General Tom Miller (D), $150 to Democratic Governor Chet Culver, $150 to Democratic State Senator Rob Hogg, and $25 to the Iowa Democratic Party.

She received 173 votes, while 163 attorneys voted for Mary Chicchelly.  There were also 5 write-in candidates.

6th Congressional District:

Susan Boden coasted to an easy victory to represent the 6th Congressional District, which in 1965 encompassed the following counties:  Buena Vista, Calhoun, Cherokee, Clay, Dickinson, Emmet, Humboldt, Ida, Kossouth, Lyon, O’Brien, Osceola, Palo Alto, Plymouth, Pocahontas, Sac, Sioux, and Woodbury.

Boden is a Sioux City attorney who practices in the areas of adoption, civil litigation, and worker’s compensation.  She is a registered Democrat who has contributed a total of $670 to the Iowa Trial Lawyers Association’s Political Action Committee (PAC).  She was a commissioner on the local trial court nominating commission, as well as a former Department of Transportation Commissioner.

Boden ran unopposed and received 162 of the votes cast.  There were, however, 17 write-in candidates.

District Judicial Nominating Commissioners:

There are fourteen trial court districts, each of which has its own nominating commission which reviews applicants for judicial vacancies and forwards the names of two finalists per vacancy to the governor for appointment.  The governor must appoint one of the two finalists forwarded to him by the commission and, if the governor fails to make an appointment within 30 days, the decision falls to the chief justice of the Supreme Court.

Each commission consists of eleven members.  Five are selected by the governor without confirmation by the Senate, and five are lawyers elected by resident attorneys practicing in the state.  Appointed and elected commissioners serve for staggered six-year terms.  The final seat is reserved for the chair of the commission, who is the most senior judge in the district who is not the chief.

The terms of nineteen appointed commissioners expired January 31st, 2010, but, in violation of Iowa law, are still in the process of being filled.  Chapter 46.3 of the Iowa Code requires that:  “Appointments shall be…made in the month of January for terms commencing February 1 of even-numbered years.”

Though all of the positions should have been filled by February 1, 2010, only one of them was.  Instead, it appears that Governor Culver had a nasty little habit of stacking the commissions when it came time for the commission to select nominees.  This intentional disregard for the law produced the desired results, for only one of the fourteen judges appointed was a Republican.

District 1A:

Wintlett Taylor-Browne and Adam Moore were appointed to the nominating commission for Judicial District 1A on November 4, 2010, just in time to help nominate Thomas Bitter, who Governor Culver appointed on December 9, 2010.  Both Commissioners Taylor-Browne and Moore are registered Democrats, as is Judge Bitter.

District 1B:

Governor Culver appointed Deborah Nagle and Nancy Witt to the nominating commission for Judicial District 1B on July 16, 2010.  Their appointment came right as the commission was about to fill a vacancy and helped lead to the governor’s appointment of David Staudt to the bench on September 10, 2010.  Nagle is a registered Democrat who has given several hundred dollars to local candidates and, while Witt is a registered Independent, she had previously voted Democrat.  Judge Staudt is a registered Democrat.

District 2A:

Culver appointed Fredric Waldstein and Dan Mallaro to the nominating commission for Judicial District 2A on July 30, 2010, and, like clockwork, Culver appointed Rustin Davenport to the bench on September 19, 2010.  Both Waldstein and Mallaro are registered Democrats who have contributed to Democratic candidates, including Culver.  Judge Davenport is also a registered Democrat who has given to the Cerro Gordo County Democratic Central Committee.

District 2B:

According to the Open Up Iowa website, which is rarely updated, there still remains one unfulfilled vacancy on the nominating commission for Judicial District 2B.  IJW has tried to confirm the status of this vacancy with both the local and state nominating commissions, but without success.

Governor Culver did, however, appoint Judge Brown to the commission on December 3, 2010, and, shortly thereafter, Culver appointed Kurt Stoebe to the bench on January 4, 2011.  Commissioner Brown and Judge Stoebe are both registered Democrats.

District 3A:

If Culver had not been denied a second term on Election Day, there would likely still be two vacancies on the nominating commission for Judicial District 3A due to lack of judicial vacancies to fill.  As it is, on his way out the door he appointed John Goede to the commission.  Goede, a registered Democrat, has given $170 to the Clay County Democratic Central Committee.

According to Open Up Iowa, there still remains one unfulfilled vacancy on the nominating commission, though IJW has been unable to confirm this.

District 3B:

The only commissioner Culver lawfully appointed last year is Leslie Lewis, a registered Democrat.  Culver also appointed David Somsky to the commission on September 17, 2010, just as the commission was preparing to fill a vacancy.  Somsky, also a registered Democrat, has given hundreds of dollars to Democratic candidates, including Culver.  Despite his best efforts, Culver ended up appointing Jeffrey Poulson, a registered Republican, to the bench on November 30, 2010.

District 4:

Culver appointed William Hillman and Gina Primmer to the nominating commission on July 19, 2010, and, like clockwork, he appointed Mark Eveloff to the bench on October 10, 2010.  Judge Eveloff and Commissioners Hillman and Primmer are all, unsurprisingly, registered Democrats.

District 5A:

Again, Culver stacked the nominating commission for Judicial District 5A when he appointed William Freeman and Karen Miller, both registered Democrats, to it on March 29, 2010.  Shortly thereafter, Culver appointed Brad McCall to the bench on June 4, 2010.  Judge McCall has given $400 to Democratic Congressman Bruce Braley and $2,000 to the Iowa Trial Lawyers Association PAC.

Several months later, Culver also had the opportunity to appoint Terry Rickers, a registered Democrat, to the bench on September 19, 2010.  Then on December 9, 2010, Culver also appointed Randy Hefner to the court.  A registered Democrat, Hefner has given a total of $1,200 to Democratic Congressman Leonard Boswell, $350 to Congressman David Loebsack (D), $700 to Democratic Congressman Bruce Braley, $250 to Senator Tom Harkin (D), $750 to Governor Chet Culver (D), $2,350 to the Iowa Democratic Party, and $1,500 to the American Trial Lawyers Association PAC.

District 5B:

Once again, Culver left the two open positions on the nominating commission for Judicial District 5B open until he was about to leave office due to a lack of judicial vacancies in front of it.  On January 5, 2011, Culver appointed Mary Jane Weisshaar, a registered Democrat and contributor to the Iowa Democratic Party, to fill one of the positions.

According to Open Up Iowa, there still remains one unfulfilled vacancy on the nominating commission, though IJW has been unable to confirm this.

District 5C:

According to Open Up Iowa, it appears that Culver, in his haste to leave Terrance Hill, neglected to fill a position on the nominating commission for District 5C.  This nominating commission did not consider any judicial vacancies in the past year.

District 6

Culver appointed Michael Peebler and Jean Oxley to the nominating commission for the 6th Judicial District.  Though a registered Republican, Michael Peebler appears to be connected with the One Iowa Coalition, also known as Justice, Not Politics.  A registered Democrat, Oxley has given $400 to Governor Chet Culver (D), $375 to the Iowa Democratic Party, and several hundred dollars to Democratic candidates.

IJW has been unable to confirm when Peebler and Oxley were appointed, and Open Up Iowa still claims their seats are vacant.  The local nominating commission has no record of when they were appointed by Culver, and the state nominating commission has yet to respond to our requests.

However, if past practice is any guide, the commissioners were probably appointed around April or May of last year, in time for Culver to appoint Paul Miller to the bench on June 6, 2010.  Judge Miller, a registered Democrat, has given a total of $1,600 to Democratic Congressman Bruce Braley, $1,000 to Congressman David Loebsack (D), $350 to Democrat Roxanne Conlin’s unsuccessful bid for the U.S. Senate, $500 to Governor Chet Culver (D), and several hundred dollars to the Iowa Trial Lawyers Association PAC.

Culver also had the opportunity to appoint Stephen Jackson to the bench on October 13, 2010.  A registered Democrat, Jackson has given a total of $250 to Congressman Leonard Boswell, $1,000 to Democratic Congressman Bruce Braley, $3,500 to U.S. Senator Tom Harkin (D), $1,250 to Democrat Roxanne Conlin’s unsuccessful bid for the U.S. Senate, $8,050 to Congressman David Loebsack (D), $1,000 to Governor Chet Culver (D), and thousands of dollars each to the Iowa Democratic Party and the Iowa Trial Lawyers Association PAC.

District 7:

In a surprising move, Culver did not fill the two vacancies on the nominating commission for the 7th Judicial District before it considered a vacant judgeship in December.  Turns out he didn’t need to, as the commission produced two Democratic nominees, Mark Lawson and Thomas Reidel, who had given to local candidates.  Culver appointed Reidel to the bench on his last day in office.

Also on his way out the door, Culver took the time to appoint Robert Osterhaus and Tom Schueller to the nominating commission.  Both are registered Democrats who have given to various Democratic candidates.  In particular, Osterhaus has given $250 to President Barack Obama (D), $2,300 to Democrat Tom Vilsack’s bid for president, $250 to Congressman Bruce Braley (D), and $14,350 to the Iowa Democratic Party.  Despite Culver’s efforts, the commission recently nominated two nominal Republicans.

District 8A:

On July 7, 2010, Culver appointed Laurie Schooley and Justine Heffron to serve on the nominating committee for Judicial District 8A and, on September 3, 2010, Culver appointed Lucy Gamon to the bench.  While Schooley is a registered Independent, Judge Gamon and Commissioner Heffron are registered Democrats, the later giving to Governor Culver and several other Democratic candidates.

District 8B:

Culver appointed Janet Fife-LaFrenz and David Helman to the nominating commission for Judicial District 8B on July 30, 2010, and, shortly thereafter, Culver appointed John Wright to the bench on September 24, 2010.  Both Commissioners Fife-LaFrenz and Helman are registered Democrats who have given to local Democratic candidates.  Though Judge Wright’s party affiliation could not be determined, he has given $500 to Democratic Congressman Bruce Braley and several hundred dollars to the Iowa State Bar Association’s PAC.

Conclusion:

As has long been apparent, it is time to stop glorifying the Missouri Plan as nonpartisan and recognize it for what it clearly is—the dominance of one party, the Democrats, behind closed doors.  All three of the newly-elected attorney commissioners on the State Nominating Commission are Democrats, as is all but one of the nineteen newly-appointed district nominating commissioners.  The result—fourteen new trial judges, of which there is only one Republican.

It is long past due to bring the process out into the open and turn it over to those directly accountable to the people.  While politics cannot be entirely removed from the process, at least the process can be entrusted to those whose values and judgments have been vetted by the people at the ballot box.

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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 nathanwt@juno.com.




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