Attorney Thomas Duff has standing to challenge Iowa’s new law giving the governor an extra appointee on the State Judicial Nominating Commission, a Polk County District Court has determined. However, the court dismissed Duff’s challenge to the provisions of the law shortening the Iowa Supreme Court chief justice’s term.

A different Polk County judge tossed an earlier lawsuit, on the grounds that the attorneys, state legislators, and judicial commission members who filed were not injured by Senate File 638. The Iowa Court of Appeals will consider the appeal of that dismissal.

Duff is asserting the same constitutional violations as the first lawsuit, and the state had asked the court to dismiss Duff’s case for lack of standing. But this plaintiff is differently situated, as an attorney who applied this summer to serve on the Court of Appeals.

In an October 22 order, Polk County District Court Judge Joseph Seidlin declined to “confer standing solely based on Duff’s profession as an Iowa lawyer.” However, he found that Duff has a “special interest in the challenged action.”

Duff alleges an actual injury, that as an applicant for the Iowa Court of Appeals, he was deprived of a full and fair consideration by a Nominating Commission made up of a Supreme Court Justice, and an equal number of elected and Governor-appointed members. Such an injury would demonstrate his interest as one with a direct stake in the outcome of this litigation rather than a generalized interest that legislation comply with the State’s constitution.

The state had argued that Duff cannot prove he would have been a finalist for the Court of Appeals, if not for passage of Senate File 638.

This argument misses the point. Duff’s injury stems from the alleged unconstitutional passage of the provisions of SF 638 that changed the make-up of the Nominating Commission. But for this alleged unconstitutional act, Duff’s application would have been considered by a Nominating Commission made up of different members than the one that did consider it. His argument is that he interviewed with the wrong commission. It doesn’t matter what votes he received or didn’t receive from that commission. His injury comes from the deprivation of his opportunity to interview with and be considered by the right commission. The court believes that is enough to show a sufficient specific personal stake in the controversy to obtain a judicial resolution.

A third point of Duff’s lawsuit asserted that the new law violates the separation of powers by limiting the chief justice’s term to two years. Judge Seidlin dismissed that claim, because “Duff has no different interest than any other citizen regarding the election and term of office served by the Chief Justice. The changes do not impact him directly, as he is neither a justice of the Iowa Supreme Court nor the Chief Justice. He is not a party injured by the change.”

The plaintiff had also asked the court to put the challenged provisions of Senate File 638 on hold. But the judge denied the request for a temporary injunction, saying any potential harm to Duff “would be greatly outweighed” by the fact that if he issued a temporary injunction, “no openings for State-wide judicial office could be filled while Duff’s suit is pending.”

This would include a recently announced opening on the Iowa Court of Appeals. As Duff has sued only as a party injured in his past application, enjoining the nomination of applicants while his suit is pending would serve no purpose other than to prevent the Iowa Court of Appeals or Supreme Court from having its full complement of judges or justices. The court shouldn’t issue an injunction based on speculation as to what dominoes may fall in the future or with future claims if Duff is ultimately successful in having the changes to the Nominating Commission invalidated under Article III, section 29. Its focus is on the only plaintiff here, Duff, who can obtain the same relief he seeks with or without out a temporary injunction.

I will update this post as needed with any relevant comments or legal actions. As things stand, a court can consider the plaintiff’s claims that when Republican lawmakers passed Senate File 638, they violated the constitutional requirements that laws “embrace but one subject” and accurately describe the subject matter in the bill title.

Full text of October 22 order from Polk County District Court Judge Joseph Seidlin: