For the second time in three years, Governor Kim Reynolds refused to act on a slate of nominees approved by one of Iowa’s regional judicial nominating commissions.

In early November, Reynolds took the “extraordinary step” of returning one candidate to the District 2B Judicial Nominating Commission. She eventually appointed Ashley Sparks to fill the District Court vacancy, but only after the commission held an additional meeting (at the governor’s request) to nominate a second eligible candidate for the judgeship.

The sequence of events raises questions about the governor’s legal authority to intervene when a judicial nominating commission has not adequately discharged its duties.

The situation also raises broader questions about the District 2B Judicial Nominating Commission. In November 2021, Reynolds refused to fill a vacancy in the same district after determining a judge’s “unprofessional” conduct had tainted the selection process. Since then, the District 2B commission—unlike all of its counterparts around the state—has not followed statutory and constitutional provisions that call for the senior judge of a district to chair such bodies.

“IT IS IMPORTANT TO PROTECT THE INTEGRITY OF THE NOMINATION PROCESS”

Iowa’s Judicial District 2B covers thirteen counties: Pocahontas, Humboldt, Wright, Sac, Calhoun, Webster, Hamilton, Hardin, Carroll, Greene, Boone, Story, and Marshall.

The ten members of the District 2B Judicial Nominating Commission met in Boone on November 1 to interview nine candidates seeking to succeed Judge James Ellefson, who will retire next month. After deliberating, the commission submitted two applicants’ names to Reynolds and Iowa Supreme Court Chief Justice Susan Christensen: Bridget Chambers and Ashley Sparks.

The governor’s senior legal counsel Steven Blankinship informed commission members on November 9 that Reynolds would not make an appointment. The problem was that Chambers, born in 1959, would be unable to “serve an initial term and one regular term of office” (as required by law) before reaching the mandatory retirement age of 72.

The only way Reynolds could have legally appointed Chambers would have been to act on her nomination before November 5, so the judge could have stood for retention on the 2024 general election ballot and subsequently completed a six-year term before turning 72. But that would deprive the governor of “a meaningful opportunity to select between two eligible candidates,” Blankinship wrote. The Iowa Constitution and state law give the governor 30 days to make a judicial appointment after receiving a list of finalists from a nominating commission. If 30 days pass with no appointment, the chief justice has the authority to select a judge from the commission’s short list.

After citing the relevant constitutional and statutory provisions, Blankinship wrote that the commission “has either prevented Governor Reynolds from making a meaningful selection” among two eligible candidates “or divested her of her constitutional authority to have thirty days to choose a judge. That is extraordinary and unconscionable.” He further explained that the governor cannot ignore the rules on judicial qualifications.

The upshot was that Reynolds was sending the Chambers nomination back. Blankinship wrote, “The Commission is instructed to reconvene as soon as possible and nominate another candidate” who would be eligible for the judgeship. He added,

Governor Reynolds has a constitutional duty to ensure that all laws are faithfully executed. This is an extraordinary step that rarely occurs but is necessary.

It is important to protect the integrity of the nomination process. To allow a commission to prevent a governor from having thirty days to act or forcing a governor’s hand to pick one candidate over another […] would be improper. In this instance, I suspect that the flawed—but foreseeable—nomination was inadvertent but, irrespective of the reason, it cannot stand.”

The District 2B commission met again on November 11 and forwarded a new set of nominees to the governor and chief justice: Carin Forbes, selected at the November 11 meeting, and Sparks, the eligible candidate selected on November 1.

In a classic late Friday news dump, the governor’s office announced after 6:00 pm on November 17 that Reynolds had appointed Sparks, an attorney in private practice and the Boone County magistrate.

WHY THE GOVERNOR INTERVENED AGAIN IN DISTRICT 2B

Bleeding Heartland sought clarification from the governor’s office after seeing the District 2B commission had met twice and agreed on different sets of finalists. Neither Article V of the state constitution nor Iowa Code Chapter 46 provide for judicial nominating commissions to forward multiple slates to the governor and chief justice, or for the governor to request a second bite at the apple.

Had Reynolds told the commissioners to send her a different nominee? If so, that would appear to be an intrusion onto what is supposed to be an independent deliberation. A cornerstone of Iowa’s merit selection system is that judicial nominating commissions choose the finalists (two for a District Court vacancy, five for an Iowa Court of Appeals vacancy, and three for an Iowa Supreme Court vacancy). The governor is not supposed to unduly influence that process to get a candidate she wants onto the short list.

Blankinship responded by providing a copy of the letter he sent to the District 2B commission members and court personnel (enclosed in full below as Appendix 1). “I am not going to comment further on matters that may reoccur and/or result in potential litigation,” he wrote in a November 19 email.

What potential litigation? In theory, one of the unsuccessful applicants for this District Court vacancy could challenge the irregular selection process.

Alternatively, state lawmakers could try to investigate the matter. After Reynolds rejected the nominees the District 2B commission had selected in November 2021, some Iowa House members launched a probe of alleged misconduct by then commission chair Judge Kurt Stoebe. Commission members went to court to fight a House committee’s subpoenas for relevant records, saying the legislature’s actions violated the separation of powers. The House withdrew the subpoenas before a court could rule on that question.

The circumstances surrounding the latest appointment make Reynolds’ intervention look justified, even if not expressly authorized by state law. Judicial nominating commissions are required to send the governor candidates who meet certain legal requirements. The District 2B commission failed to fulfill that obligation.

What is the governor supposed to do if a commission sends her only one eligible person for a judgeship? Whether District 2B members made an honest mistake or were trying to manipulate the process to get their preferred candidate on the bench, it’s reasonable for the governor to say no. Otherwise the door would be open for other commissions to nominate ineligible applicants, either accidentally or on purpose.

That said, Reynolds’ attempt “to ensure that all laws are faithfully executed” did not address an ongoing problem with how the District 2B commission has been functioning.

“THE JUDGE OF LONGEST SERVICE IN THE DISTRICT SHALL SERVE AS THE CHAIR”

Since Iowans amended the state constitution in 1962 to replace judicial elections with a merit-based selection system, district nominating commissions have had an equal number of elected attorneys and members appointed by the governor, with the senior judge from the area serving as chair. From Article V, Section 16: “The district judge of such district who is senior in length of service shall also be a member of such commission and shall be its chairman.”

From Iowa Code Chapter 46.6: “The judge of longest service in the district shall serve as the chair of a particular district judicial nominating commission.”

From the current version of the judicial branch’s Uniform Rules of Procedure governing the process: “The judge of the longest service in the District shall serve as the Chair of a particular District Judicial Nominating Commission.”

Including a judge on the panel makes sense, because judges have the most in-depth knowledge of what the position entails.

But the District 2B commission has been operating without a judge since late 2021. Stoebe “agreed to step down as chair of future nominating commissions” one day after Reynolds cited his “unprofessional” conduct and “significantly misleading comments” as grounds for rejecting a slate of nominees.

At the time, I assumed some other judge with seniority would take Stoebe’s place. But that never happened. Using the Wayback Machine, Bleeding Heartland reviewed pages archived from the Judicial District 2 website, which show no judge has been listed as a member of the District 2B commission since Stoebe walked away from that role. He remains the longest-serving judge in the district, which prevents another judge from serving on the commission.

Every other district judicial nominating commission lists a judge as the chair. The current page for the District 2A commission is typical:

In contrast, no one is listed as the 2B commission chair.

In reality, the governor’s appointee Garrett Piklapp has chaired the district commission for the past two years. Initially commission documents listed him as “temporary chairperson,” but more recently he has used the title “chairperson.”

Side note: Piklapp has also served on the State Judicial Nominating Commission since Reynolds appointed him to replace another member in September 2022. While it’s unusual for one person to serve on both commissions, that doesn’t appear to be prohibited by law or rule. Brett Roberts is another Reynolds appointee who simultaneously serves on the state commission and the commission for District 5C (Polk County).

I asked Blankinship about the legal basis for the District 2B commission to operate with ten members and no judge, rather than eleven members and a senior judge as chair. The governor’s counsel replied, “As to whether the chief judge or another judge, as a designee, of District 2 has chosen to limit their involvement or recuse themselves with the judicial nomination process, you would need to ask the court about that.”

I sought comment from District Court Judge Colleen Weiland (who chairs the District 2A nominating commission), State Court Administrator Bob Gast, and District Court Administrator Scott Hand. They did not respond, and the judicial branch’s communications director Steve Davis emailed on November 20 to explain,  

The state and district judicial nominating commissions were created and authorized by an amendment to the Iowa Constitution. The commissions are constitutionally independent government bodies and governed by Article V, Sections 15 and 16 of the Iowa Constitution, Chapter 46 of the Iowa Code, and the commissions’ own Uniform Rules of Procedure. It would be inappropriate for employees of the judicial branch to comment on the process to fill a specific judicial vacancy.

Davis did not respond to my follow-up question: “Who is responsible for ensuring that these constitutionally independent bodies follow the Iowa Constitution?”

I reached out to all ten members of the District 2B Nominating Commission with several questions, including “Did your commission intentionally send Governor Reynolds an ineligible candidate in order to force her to select Ashley Sparks, or was the mistake inadvertent?” And “Why does your commission continue to operate without the participation of a judge?”

Only one member replied. Elected attorney Tim Gartin thanked me for my interest but cited the Uniform Rules which require commissioners to keep deliberations confidential. He added, “I will only offer as a general comment that the commission has always acted in good faith to send what it believes are the best two candidates to the Governor.”

Had commissioners followed the membership rules, they might have avoided this mess.

WHY THE PRESENCE OF A JUDGE MATTERS

According to Blankinship’s letter to District 2B commissioners, “It is my understanding that Chief Judge Adria Kester contacted a commission member (Aaron Ahrendsen) expressing concern regarding whether nominee Chambers was eligible based on her age.” In addition, district court administrator Hand provided Piklapp with an Attorney General’s opinion related to age limits for Iowa judges. “Unfortunately, both communications occurred after the nominations” of Sparks and Chambers, Blankinship wrote.

Kester has served as chief judge for Iowa’s second district since February 2023. But she wasn’t involved with filling the latest vacancy. Nor did she participate in September, when the District 2B commission considered applicants for a District Associate Judge position.

Had an experienced jurist interviewed candidates and presided over the commission’s deliberations on November 1, the chair might have flagged the problem with Chambers’ age before commissioners forwarded an ineligible nominee to the governor.

UPDATE/CLARIFICATION: Although Kester is the chief judge for the area, Stoebe remains the longest-serving judge in District 2B. The constitution provides no mechanism to designate another judge to chair the nominating panel.

PROSPECTS FOR LEGISLATION TO ALTER DISTRICT COMMISSIONS

I had reason to suspect a power grab when I learned the latest appointment in Judicial District 2B didn’t go by the book.

Reynolds and top Republican lawmakers sought sweeping changes to increase the governor’s influence over judicial appointments in 2019. Their initial proposal would have removed all elected attorneys from the state and district judicial nominating commissions, giving political appointees total control of the process. A compromise approved on the final day of the 2019 legislative session gave the governor an extra appointee to the State Judicial Nominating Commission and removed from that body the Iowa Supreme Court justice with the most seniority, other than the chief justice. To win over a few House GOP holdouts, that bill left the district nominating commissions unchanged.

Later, after state nominating commission members declined to put the governor’s former senior legal counsel Sam Langholz on the short lists for multiple Iowa Supreme Court and Iowa Court of Appeals vacancies, Reynolds signed a GOP bill in 2022 that required the state commission to submit five nominees—not three—for the Court of Appeals. (The legislature couldn’t expand the number of finalists for each Iowa Supreme Court vacancy without amending Article V, Section 15 of the state constitution, a multi-year process.)

The 2022 change had the intended effect this summer, when the state commission included Langholz among the five nominees to succeed retiring Court of Appeals Judge Anuradha Vaitheswaran. As expected, Reynolds appointed Langholz in August.

Iowa Senate Republicans have tried to extend the 2019 approach to district judicial nominating commissions. In March 2022 and again in February 2023, the Senate voted along party lines to give the governor a sixth appointee on district judicial nomination commissions, and remove district chief judges from those bodies. Attorneys in each district would continue to elect five commission members.

For two years running, the Senate’s bill on district nominating commissions has stalled in the Iowa House Judiciary Committee. Speaking to Bleeding Heartland on November 8, House Judiciary Committee Chair Steven Holt noted that while bills one chamber passed last year will still be alive for the coming legislative session, “in most cases, if it didn’t move in the first year, it’s not likely to move in the second year.”

Holt said there was “a lot of concern on my Judiciary Committee” about removing judges from the commissions that appoint judges. “It would be one of the only commissions in the state” where the particular profession was not represented. For that reason, some of Holt’s Republican colleagues feel “the judge needs to be on this commission.”

Asked why he had floor managed the 2019 bill that eliminated the Iowa Supreme Court justice’s position on the State Judicial Nominating Commission, Holt said “there were other considerations” at play. (The second most senior justice at the time was David Wiggins, a Tom Vilsack appointee whom many Republicans disliked. Most judges who could chair future regional commissions were appointed by Reynolds or her predecessor, Terry Branstad.)

The latest misstep in District 2B strengthens the case for leaving judges on district commissions. A judge would be better placed to prevent errors or mischief during the selection process.

Arguably, the legislature has grounds to make Iowa Code more clear about the governor’s authority to reject an ineligible nominee, or a slate containing only one eligible nominee. Even if a commission didn’t screw up, unfortunate events might keep the governor from having a meaningful choice—for instance, if one candidate for a judgeship died during the 30-day appointment window.

Any such legislation would need to be narrowly construed to prevent the governor from rejecting a valid slate of nominees as a way to force commissioners to send up her preferred candidate. Judicial appointments are not subject to Iowa Senate confirmation, so the commissions present the only real check on the governor’s ability to put her political allies on the bench. Since Reynolds already tried to upend the judicial selection process, the risk of tinkering with Iowa Code Chapter 46 might outweigh the benefits.

UPDATE: A reader notes that Iowa Code section 46.5(4) allows a district commission to operate without a judge as chair:

If a vacancy occurs in the office of chairperson of a district judicial nominating commission or in the absence of the chairperson, the members of the particular commission shall elect a temporary chairperson from their own number.

Piklapp is no longer the “temporary chairperson” here; he has been acting with the title of chairperson for some time. Although I doubt this code section was written with a years-long vacancy in mind, there is apparently no way for another judge to serve on the District 2B nominating commission until Stoebe (the longest-serving judge in the area) retires from the bench.

Before Reynolds rejected the 2B nominees in 2021, only one previous governor had told a judicial nominating commission to go back to the drawing board. In 1982, Governor Robert Ray rejected a slate of candidates on the grounds that the “commission had convened too soon after a judge announced his resignation, which wasn’t effective until several months later,” Jared Strong reported for Iowa Capital Dispatch two years ago.

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Appendix 1: Full text of letter Governor Kim Reynolds’ senior legal counsel Steven Blankinship emailed to members of the District 2B Judicial Nominating Commission on November 9.

Appendix 2: Relevant section of Article V, Section 16 of the Iowa Constitution, as amended in 1962:

There shall be a district judicial nominating commission in each judicial district of the state. Such commissions shall make nominations to fill vacancies in the district court within their respective districts. Until July 4, 1973, and thereafter unless otherwise provided by law, district judicial nominating commissions shall be composed and selected as follows: There shall be not less than three nor more than six appointive members, as provided by law, and an equal number of elective members on each such commission, all of whom shall be electors of the district. The appointive members shall be appointed by the governor. The elective members shall be elected by the resident members of the bar of the district. The district judge of such district who is senior in length of service shall also be a member of such commission and shall be its chairman.

Appendix 3: Relevant section of Iowa Code Chapter 46.6:

2. The judge of longest service in the district shall serve as the chair of a particular district judicial nominating commission. If the judges of longest service in the district are of equal service, the eldest of such judges shall be chairperson of the particular judicial nominating commission.

Top photo: Governor Kim Reynolds speaks to members of the Iowa Association of Christian Schools. Picture originally published on her official Facebook page on November 17.