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March 13th, 2011

The Des Moines Register’s Journalistic Malpractice

By Nathan Tucker

Clark Kauffman, the Des Moines Register’s investigative reporter who was a 2005 Pulitzer Prize finalist, authored a front page, above-the-fold story Thursday that was so misleading and inaccurate that it amounted to little more than a political smear piece.  This isn’t the first time, nor likely the last, that Kauffman has written a “hit piece that belongs in the opinion section of the paper, not the front page.”

Entitled “Des Moines lawyer is named to panel he’s suing by Branstad,” the article opines that the governor’s appointment of William Gustoff to the State Judicial Nominating Commission is ill-advised, at best.   As the title indicates, Kauffman argues throughout the story that Gustoff has a conflict of interest in serving on a Commission that he is in the process of suing.

But Gustoff is not suing the Commission; rather, he is an attorney representing several Iowans who are challenging their inability to vote in the elections which determine half of the Commission’s membership.  It is an important and vital aspect of the legal profession that a client’s actions are not attributed to their attorneys.

For instance, no responsible reporter would write that Commissioner Guy Cook was convicted of 86 counts of financial fraud in the Sholom Rubaskin case, or that Commissioner H. Daniel Holm sued the Red Lion Inns, or that Commissioner Joseph Fitzgibbons cheated a mentally retarded man out of his crops.  Attorneys have an ethical obligation to represent clients, regardless of their personal opinion of them or their case.

Additionally, Gustoff simply served as local counsel on the case at the trial court level because the lead attorneys were not admitted to practice before the court.  Now that the case is pending before the 8th Circuit Court of Appeals, a court in which Gustoff is not admitted to practice, he is no longer an attorney with the case.

His representation, such as it was, ended when the trial portion of the case ended.  Gustoff has told The Iowa Republican that, in the event the 8th Circuit remands the case back to the trial court, he will file a formal withdrawal from the case.  As explained to Kauffman, but apparently forgotten, there is currently nothing for Gustoff to withdraw from.

Kauffman also insinuates that Gustoff’s appointment violates the Iowa Constitution’s prohibition against selecting Commission members by party affiliation.  His sole grounds for this accusation, however, is his contention that Tim Albrecht, Branstad’s spokesman, told him Gustoff was selected “because of his conservative leanings.”

If Kaufmann would reference the email Albrecht sent him, he would find that Albrecht instead wrote that: “Gov. Branstad chose these two individuals because he felt the commission needed strong, articulate conservatives.”  When asked by The Iowa Republican if this was a reference to a judicial philosophy or party affiliation, Albrecht responded that it was a reference to “philosophy” because the administration believes “the commission needs balance.”

Continuing in his attack, Kauffman argues that Gustoff’s appointment violates the spirit, if not the letter, of the Iowa Constitution because, “[h]istorically, governors have appointed only nonlawyers to the panel, while Iowa lawyers elect an equal number of lawyers to the commission to ensure balance in its composition.”

There is nothing, however, in either the Constitution or the Iowa Code, that requires the governor-appointed members to be nonlawyers and the lawyer-elected members to be lawyers.  Kauffman also failed to disclose that two of the current appointed members of the Commission are married to attorneys–Coleen A. Denefe and Dr. Margaret Redenbaugh.  Additionally, Carolyn Braley, wife of attorney and Congressman Bruce Braley, had recently served on a trial court nominating commission.

Kauffman’s piece is a sad excuse for objective journalism by one of the Register’s most prized reporters, and it is likely too much to hope that the Register will issue a correction, much less do it on the front page.

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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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