Des Moines attorney Gary Dickey has asked Johnson County Attorney Janet Lyness to take legal action challenging Jason Besler’s position as a District Court judge. As Bleeding Heartland reported last month, Governor Kim Reynolds named Besler to fill a vacancy four days after her constitutional authority to make the appointment had lapsed. Johnson County is part of Iowa’s Sixth Judicial District, where Besler has been presiding over cases.

Iowa’s Rules of Civil Procedure allow any citizen to file a quo warranto civil action charging that a defendant unlawfully holds a public office, if a county attorney fails to act. Dickey says he will proceed if Lyness declines to do so.

Dickey is familiar with the judicial selection process, having served as chief legal counsel to Governor Tom Vilsack. In his October 9 letter, enclosed in full below, Dickey noted that Article V, Section 15 of the Iowa Constitution stipulates, “If the governor fails for thirty days to make the appointment, it shall be made from such nominees by the chief justice of the supreme court.”

“Applying the most liberal construction to article V, section 15,” Dickey continued, the governor could have met the constitutional deadline by notifying Besler, the judicial nominating commission, Iowa Supreme Court Chief Justice Mark Cady, or the general public of Besler’s appointment by June 21, or by “contemporaneously memorializing the appointment in writing.” Since Reynolds did none of those things before June 25, Dickey asked Lyness to “file a civil action in the nature of quo warranto in the state against Jason Besler alleging that he is unlawfully holding the office of district court judge in the Sixth Judicial District.”

Lyness did not respond to phone or e-mail messages seeking comment. I will update this post as needed. UPDATE: Lyness replied by e-mail on October 10, confirming that she received Dickey’s letter and is reviewing the rules and the law but has not further comment.

On a related note, former Iowa Supreme Court Justice Michael Streit discussed the controversy in a guest column for the Des Moines Register. “A judicial appointment requires more than just a thought,” Streit observed. Besler’s disputed status could have adverse “legal consequences,” such as a higher court ordering a retrial of a defendant Besler sentenced. (Other attorneys have expressed similar concerns about problems in civil or criminal matters that come before Besler.)

Streit commented,

As a judge who served for almost 28 years on the bench – nine years on Iowa’s Supreme Court – I’ve wrestled with a constitutional question or two. I’m also familiar with how our judicial nomination process works. Deadlines and time limits permeate our laws. These deadlines are not meant to be arbitrary, but instead are established to create procedures to ensure our government is conducted according to a rule of law.

By any standards or criteria, Judge Besler is a fine appointment to our bench. While there is no ulterior motive to why Judge Besler or the judicial branch was not notified properly within the 30 days required, the fact of the matter is the ball was dropped. When it comes to our legal system, there is no room for this sort of ambiguity. We owe that much to Judge Besler. We owe more than that to our system of justice.

Although Chief Justice Mark Cady may appoint from either of the two nominees [Besler or Ellen Ramsey-Kacena], it seems a reasonable solution for the Chief Justice to properly make the selection of Judge Besler to the 6th Judicial District. A prominent Iowa attorney is preparing a document for Justice Cady to accept the governor’s statement that she made the appointment after she made up her mind. If I can humbly suggest, the document may be written in this way but should, by its end, contain a simple clause declaring the chief justice makes the appointment. Problem solved.

Gov. Reynolds and her staff appear to have made a mistake. There is a simple remedy: Comply with the Constitution.

I welcome tips on which “prominent Iowa attorney” is working up a document justifying the governor’s appointment. Sources can contact me confidentially.

Appendix 1: Gary Dickey’s October 9, 2018 letter to Johnson County Attorney Janet Lyness, requesting that she “file a Petition for Writ of Quo Warranto against Jason Besler for unlawfully holding the public office of district court judge in the Sixth Judicial District.”

Appendix 2: Relevant language from the Iowa Rules of Civil Procedure

DIVISION XIII
QUO WARRANTO

Rule 1.1301 For what causes. A civil action in the nature of quo warranto, triable by equitable proceedings, may be brought in the name of the state against any defendant who is any of the following:
1.1301(1) Unlawfully holding or exercising any public office or franchise in Iowa, or an office in any Iowa corporation. […]

Rule 1.1302 By whom brought.
1.1302(1) The county attorney of the county where the action lies has discretion to bring the action, but must do so when directed by the governor, general assembly or the supreme or district court, unless the county attorney may be a defendant, in which event the attorney general may, and shall when so directed, bring the action.

1.1302(2) If on demand of any citizen of the state, the county attorney fails to bring the action, the attorney general may do so, or such citizen may apply to the court where the action lies for leave to bring it. On leave so granted, and after filing bond for costs in an amount fixed by the court, with sureties approved by the clerk, the citizen may bring the action and prosecute it to completion. [Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002]