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February 27th, 2011

Unless Otherwise Provided

By Nathan Tucker

Despite the Governor’s disappointing lack of leadership on this issue, it appears that some state lawmakers are tired of the elitist, cloistered, and undemocratic commission process that produces activist judges.  While many of the various proposals have their strengths, HF 343, proposed by Rep. Chris Hagenow, shows promise to not only enact fundamental change into the process, but to actually make it out of both houses of the legislature.

While Article V of the Iowa Constitution governs the judicial selection process, Section 16 gives the General Assembly the ability to change the membership of the nominating commission by statute without the need for a constitutional amendment.  Section 16 of Article V reads in part:

Until July 4, 1973, and thereafter unless otherwise provided by law, the state judicial nominating commission shall be composed and selected as follows: There shall be not less than three nor more than eight appointive members, as provided by law, and an equal number of elective members of such commission, all of whom shall be electors of the state. (emphasis added)

Perhaps the most glaring defect in the current makeup of the commission is that the vetting and de facto selection of judges is done by fifteen people, eight of whom where chosen in elections limited to practicing attorneys.  The State Judicial Nominating 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.  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.

HF 343 seeks to return the franchise to the people of Iowa by making the attorney-elected members merely “nonvoting advisory members of the commission.”  They would be free to ask questions during interviews and participate in deliberations, but they would no longer make up half of the voting members of the Commission.

Oddly, however, HF 343 guarantees that attorneys will make up at least two-thirds of the Commission.  With redistricting, the bill increases the number of governor-appointed seats from one per 1965 congressional district (of which there were seven), to two per the four new congressional districts.  It also mandates that:  “At least one appointive member from each congressional district shall be a member, in good standing, of the bar.”

While unremarkable in itself, the bill also increases the number of bar elected seats from one per each of the seven 1965 congressional districts, to two per the four new congressional districts.  As a result, HF 343 would require that attorneys make up twelve of the sixteen seats on the Commission, not including the justice as chairperson.

While eight of these twelve attorneys would be nonvoting, sheer numbers guarantee that together the voting and nonvoting attorneys would exercise an undue influence and sway on the remaining four lay members of the Commission.  It also makes no sense to pay the out-of-pocket expenses of excess advisory attorneys if they do not have a vote to cast.  Consequently, HF 343 should limit the number of bar elected commissioners to four—one from each congressional district.

While returning the franchise to Iowans at the statewide commission level, the bill inexplicably fails to make the same necessary changes to the trial court nominating commission.  It is important to restore public control over these commissions as well, especially since today’s trial judge is often tomorrow’s appellate judge.

Another important aspect of HF 343 is that, by extending the application process, it prevents a lame-duck governor from filling vacancies on the court due to a successful anti-retention campaign.  It also prevents an unretained judge from applying for a judgeship within two years of the election.

HF 343 requires that the statewide nominating commission provide information online for the public to view.  Though the Commission voluntarily provided much of this information during the recent nominating process, under current law it can always revert to secrecy in the future.  Furthermore, the bill requires two things that the Commission did not make available online—its internal rules of procedure and the number of votes each applicant received.  These are important changes, and should not only be required of the appellate nominating commission, but also of the trial nominating commissions.

Finally, HF 343 would make the lieutenant governor the nonvoting chairperson of the State Nominating Commission, as well as make the president of the senate, the speaker of the house, the minority leader of the senate, and the minority leader of the house voting members.  This almost assuredly runs afoul the Constitution’s prohibition against commissioners (i) holding public office of profit; and (ii) being chosen with regard to party affiliation.  It would be constitutionally easier to allow the governor to appoint the chair of both appellate and trial nominating commissions, a position that would only have a vote in the event of a tie.

While certainly not perfect, a modified HF 343 could enact some real and fundamental change in the judicial selection process.  Unfortunately, it has to make it out of the House Judiciary Committee by Friday, March 4th in order to have a chance of being passed this session.  This gives the three-member Republican majority on the Committee a week to demonstrate to Iowans that they are serious about preventing activist judges from making it onto the bench in the first place.

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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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