Multiple Iowa Supreme Court justices spoke with Iowa House Republicans shortly before GOP lawmakers approved a bill that gave the governor more influence over the judicial selection process and shortened the chief justice’s term.

But only Chief Justice Mark Cady disqualified himself from considering the legal challenge to that law’s validity, and only Cady has been transparent about his communications on the issue with legislators and staff for Governor Kim Reynolds.

Justice Thomas Waterman and Justice Edward Mansfield appear to have pushed for the bill’s passage and stand to benefit from electing a new chief justice in 2021. Yet neither recused himself from hearing the case. Nor have they revealed their contacts with Republican legislators or the governor’s legal counsel Sam Langholz, despite a judicial rule calling for disclosure of information relevant to a recusal motion.

THE LEGAL CONTEXT

The Supreme Court will soon consider a lawsuit brought by Cedar Rapids attorney Bob Rush, a group of Democratic state legislators, and two lawyers who have served on the State Judicial Nominating Commission. The law they are challenging gives the governor nine appointments to the State Judicial Nominating Commission (outnumbering the eight members elected by attorneys) and requires the Iowa Supreme Court to elect the chief justice at the beginning of every odd-numbered year.

Under previous Iowa law, a chief justice served in that role through the end of his or her term. Cady’s peers re-elected him in 2017 to a term running through 2024. The new law forces another chief justice election in 2021, allowing the seven justices (including at minimum two Reynolds appointees, perhaps more by then) to elect a more conservative leader.

The plaintiffs maintain that Republican lawmakers failed to follow the state constitution’s provisions on bill titles and subject matter when they added the judicial changes to an appropriations bill. They also claim the legislature violated the separation of powers by dictating rules on the selection and term of office for the head of the judicial branch.

Polk County District Court Judge Sarah Crane (a Reynolds appointee) dismissed the lawsuit in June, on the grounds that their status as residents of Iowa, attorneys, state legislators, or members of the State Judicial Nominating Commission did not give the plaintiffs standing to challenge the law. The initial court filing and the District Court’s dismissal order are enclosed at the end of this post.

The plaintiffs appealed and filed a motion seeking recusal of any Iowa Supreme Court justice who “has, in a nonadministrative capacity, consulted with, advocated with and/or encouraged” any defendant, staff member of any defendant, or member of the Iowa legislature to support passage of the bill in question, Senate File 638.

The recusal motion reflected widespread rumors that one or more conservative justices had coordinated with the governor’s legal counsel and spoken or texted with some reluctant House Republicans, in order to get the judicial changes to Reynolds’ desk.

THE POLITICAL CONTEXT

Efforts to give Reynolds more control over judicial appointments became a high-profile battle of this year’s legislative session, even though the governor did not raise the issue during the 2018 campaign or in her address to state lawmakers in January.

Iowa’s constitution has defined most aspects of merit-based judicial selection since 1962, but a little-noticed loophole allowed the composition of judicial nominating commissions to be changed through passage of an ordinary law, rather than the years-long constitutional amendment process. A bill to remove elected attorneys from the commissions, letting those bodies be dominated by the governor’s political party, cleared the Iowa Senate along party lines in March, then stalled in the Iowa House.

According to legislators and other sources who closely followed the matter, seven of the 54 House Republicans opposed the judicial bill: State Representatives Jon Jacobsen, Megan Jones, Dave Maxwell, Andy McKean, Ann Meyer, Gary Mohr, and Jon Thorup. As late as April 25, lobbyists and other statehouse observers widely believed House leaders did not have 51 votes behind the judicial selection bill.

Reynolds and GOP leaders didn’t want the legislature to adjourn for the year without addressing the issue. The bill’s floor manager, State Representative Steven Holt, floated a new proposal on April 26, which Bleeding Heartland described in more detail here.

Republicans added Holt’s amendment to the “standings” appropriations bill, one of the last approved before lawmakers went home on April 27. Five of the GOP holdouts (Jacobsen, Maxwell, Meyer, Mohr, and Thorup) voted for the final deal. Jones was the only Republican to vote against the judicial changes. McKean was not involved in the last-minute negotiations, having joined the Democratic caucus a few days earlier. He voted against the bill after giving a speech slamming the “blatantly partisan” and “desperate” attempt to politicize Iowa courts, as well as what McKean called a “tawdry process” of backroom dealing.

WHAT THE CHIEF JUSTICE REVEALED

In orders filed on September 13, Cady explained that he will not hear the case “because a reasonable person could conclude that I have a personal interest and financial interest in the outcome.” The law in question shortened his current term and would lower his salary if someone else were elected to lead the court in 2021. The annual salary of the chief justice is $186,661, about $8,000 higher than what associate justices earn.

Cady concluded that he did not need to disqualify himself for the reasons plaintiffs raised in their recusal motion. But in the interest of transparency, he devoted eight pages to a narrative of his relevant contacts with state legislators, the governor and her staff, and others. In so doing, he shed new light on the intrigue surrounding the judicial bill’s passage.

The chief justice was attending a board meeting in Virginia when the ground shifted in the Iowa House. After his counsel Molly Kottmeyer informed him a state representative “had some questions about the bill and wanted to speak to me,” Cady called that lawmaker on the morning of April 26.

Her questions were directed to the two-year Chief Justice provision of the bill and its impact on me and the ability of future Chief Justices to assume future leadership roles in the Conference of Chief Justices if Iowa changed the term of Chief Justice to two years. I answered her questions and discussed some issues I felt she might want to consider about the proposal to change the term of the Chief Justice to two years. I concluded the conversation by telling her that the decision was for the Legislature, and the Supreme Court would defer to its judgment. At the same time, I concluded the conversation with the a clear understanding from her questions and comments that she was no longer aligned with her prior, consistent public opposition to the bill.

The passage clearly refers to Meyer, the only woman in the Iowa House who had publicly opposed the bill but switched her position on April 26. (Jones remained opposed to the end.) It’s logical that Meyer would want to discuss the matter with the chief justice, who is among her Fort Dodge constituents. Meyer did not respond to multiple e-mails and phone messages from Bleeding Heartland seeking comment or confirmation. UPDATE: Appearing on Michael Devine’s radio program on September 23, Meyer acknowledged she spoke with Cady that morning.

After conferring with Kottmeyer, Cady called another legislator who had spoken out against the bill. “As with the first conversation, his questions and comments led me to believe he too no longer opposed the two-year Chief Justice term in the bill.” I have not been able to establish who took part in that call. Maxwell, Mohr, Jacobsen, and Thorup all told Bleeding Heartland via e-mail or telephone between September 14 and 16 that they hadn’t spoken with the chief justice on April 26.

Cady then reached out to a third Republican lawmaker (unnamed, but fitting Gary Worthan’s description) and couldn’t get through. Shortly thereafter,

I received a phone call from an attorney. He told me that he had just concluded a phone call with the first representative I had called that morning. He said she told him that current justices on the Supreme Court are telling legislators that they think the bill is good policy and should vote for it.

I immediately called Molly Kottmeyer to report this conversation. She said it was consistent with what she was starting to hear from Capitol observers. We decided I needed to promptly address this matter with the Supreme Court. I then called a justice on the Supreme Court and reported what I had heard. He generally confirmed the report.

UPDATE: During his September 23 radio interview, Devine didn’t ask Meyer whether other Supreme Court justices had contacted her to encourage a vote for the bill.

CORROBORATING EVIDENCE

Cady’s account tracks with what numerous statehouse sources told me around the time the bill passed: Waterman and possibly also Mansfield had encouraged House Republicans to support the bill. Jones alluded to such phone calls when explaining her no vote in an interview The Iowa Standard published on April 28.

“My problem with that bill came down to that they made the chief justice run for that spot every two years.” […]

“There’s already some discussions going on about how calls are being made and things are already becoming politicized and the bill hasn’t even been signed yet,” Jones said. “People are making phone calls and trying to advocate for that position and the bill hasn’t even been signed yet. That two-year turnaround is very quick.”

Jones said the judiciary is an entity that needs to be “very stable and very consistent.” […]

House members are familiar with having to run for election every two years.

“Basically you’re always running for election,” she said. “I worry could (the court) be trading? ‘I’ll vote for you if you vote for this order.’ It just really is unsettling. I think we need to do some more research there before we start down the road of two years.”

Waterman, Mansfield, and other Supreme Court justices did not respond to Bleeding Heartland’s inquiries in May about their communications with state lawmakers. But in a telephone interview on May 21, Holt acknowledged, “My understanding is that several Supreme Court justices including Justice Cady called into the legislature to talk to various legislators” about the bill on April 26. Holt later repeated that justices “on both sides of the issue” called lawmakers. Here’s the pertinent clip from that interview:

Holt told me he wasn’t facilitating phone calls between the justices and Republican holdouts. Was the governor’s legal counsel Langholz handling that? “I don’t know […] there were phone calls made from both sides.” Asked how the justices would have known which GOP lawmakers to call, Holt said, “That’s an excellent question.”

Should justices who discussed the bill with lawmakers recuse themselves from considering the pending case? Holt told me he hadn’t read the court’s ethics rules, and “I do not know enough about what their standards and requirements are to make a comment on that.”

Holt told me in May that he did not speak with Waterman during the final days of the legislative session. His comments to the Des Moines Register’s Stephen Gruber-Miller on September 16 indicate that he and Waterman communicated about the issue at some point.

“I had a conversation with him about judicial nomination reform — just sort of in terms of how the system currently works and that sort of thing. It certainly wasn’t a lobbying call, like, ‘You need to support this’ or ‘Don’t support this,’ or what have you,” Holt said.

Writing in Des Moines Cityview in June, Michael Gartner called the law “an uncalled-for poke at Justice David Wiggins, an unconscionable coup against Chief Justice Mark Cady and an unseemly power grab by Justice Tom Waterman.” The governor’s extra appointee to the State Judicial Nominating Commission replaced the Supreme Court justice with the second-most seniority (Wiggins). But Gartner argued that the judicial selection changes were “meaningless,” in contrast to language that “ousts Cady from the leadership seat.”

The conservatives, not happy just with a majority of justices and not happy just with turning the Court into a subsidiary of the Federalist Society, wanted to cement their power by having one of their own as Chief.

They wanted Waterman — and Waterman wanted Waterman — to replace the moderate and even-handed Cady, who had been brought into the court system by Republican Terry Branstad and appointed to the Supreme Court by him as well but who, as the years passed, had increasingly been siding with the more liberal [Daryl] Hecht, Wiggins and Brent Appel. […]

People in Davenport, Waterman’s home town, say he was planning for weeks to topple Cady and seemed sure that the bill would pass. He had the four votes he needed to be elected Chief, he told at least one friend in Davenport well before the legislation that would allow that came up for a vote. […]

The switches came after top conservatives — apparently including Justice Waterman — made some highly unusual calls to legislators saying the Republicans on the Court wanted that bill passed.

Gartner speculated that “if Waterman or any other Justice called or met with legislators or the Governor’s office about the bill, they may well have violated the Code of Judicial Conduct of the state.” Under Rule 51.3.2, an Iowa judge shall not “consult with an executive or a legislative body or official,” with a few exceptions that don’t include lobbying for a bill.

Discussing a pending bill with state lawmakers may or may not violate the judicial code. Holt told the Des Moines Register any judge “has the absolute right to speak to us about legislation that could impact the judiciary and give us their insight and perspective.” Democratic State Representative Rick Olson offered a slightly different view: it’s appropriate for justices to talk with lawmakers about bills “As long as they don’t advocate a position.”

One thing is clear: Waterman and Mansfield have not followed the judicial code’s disclosure requirements.

“THE JUDGE MUST MAKE A RECORD THAT DISCLOSES ALL RELEVANT FACTS AND CIRCUMSTANCES”

Cady’s September 13 order begins as follows.

A judge presented with the motion for recusal based on specific claims of judicial conduct has two basic obligations. First, the judge must make a record that discloses all relevant facts and circumstances relating to the claim of disqualification. See State v. Smith, 242 N.W.2d 320, 323–24 (Iowa 1976). This disclosure requirement not only relates to the need to maintain public trust and confidence in the court system, but also goes to the basic guarantee of a fair trial. See In re Howes, 880 N.W.2d 184, 193–94 (Iowa 2016). It also recognizes recusal is self-enforcing, and a judge has a duty to consider any circumstances that would justify disqualification, not just those known to a party. See Iowa Code of Judicial Conduct Rule 51:2.11 cmt. 2; Forsmark v. State, 349 N.W.2d 763, 767–68 (Iowa 1984).

Second, the judge must then consider whether a reasonable person with knowledge of all the facts and circumstances would conclude that the judge’s impartiality could reasonably be questioned.

Rule 51.2.11 of the Iowa Code of Judicial Conduct states, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned.” The rule goes on to provide a non-exhaustive list of situations that would require recusal.

A comment under this rule clarifies, “A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.” (emphasis added)

That requirement was important in the 2016 case Cady mentioned. In a unanimous opinion authored by Wiggins, the Supreme Court admonished District Court Judge Mary Howes. She didn’t disclose to all parties that an attorney had recently represented her in a personal matter when she granted that attorney’s application for a temporary injunction.

Cady noted,

The motion plainly asks if any justice was involved with the Governor’s Office or the Legislature in the planning or efforts to secure passage of the bill. Conversely, however recusal must also address conduct in opposition to the bill. Therefore, with respect to the claim of recusal, I will first disclose my conduct relevant to the bill at the center of this litigation, then determine if recusal is needed to protect public trust and confidence in the judicial system.

Following the lengthy exposition of his conversations regarding this bill, Cady wrote, “Whether recusal is required in the case comes down to the facts, and a judge who is called upon to account for those facts has an obligation to make a full and complete record so the decision can be understood with transparency and the trust and confidence of the court system can be preserved.” (emphasis added)

Some of his colleagues fell short in that regard.

NO DISCLOSURE BY JUSTICES WHOSE IMPARTIALITY COULD BE QUESTIONED

The other six Iowa Supreme Court justices filed brief statements confirming that they will hear the appeal. Only two directly addressed the question raised in the recusal motion.

Justice Brent Appel wrote, “I did not engage in any such communications. I decline to recuse in this case.”

Wiggins wrote, “In a nonadministrative capacity, I did not consult with, advocate with, and/or encourage any 1) defendant, 2) staff member of any defendant, or 3) member of the Iowa legislature to support passage of Senate File 638. Accordingly, the undersigned will not recuse himself from hearing this matter.” Following Cady’s example, Wiggins could have recused on grounds not mentioned in the plaintiffs’ motion, because the law booted him from the State Judicial Nominating Commission. But losing that responsibility is less significant than having to relinquish the office of chief justice.

The other four justices denied the motion for recusal without clarifying whether they had promoted passage of the law. Here’s the full text of the order signed by Reynolds’ first appointee to the high court, Susan Christensen: “Appellants’ motion for recusal and Appellees’ response have been reviewed and considered by the undersigned justice. Motion for recusal is denied.”

From Reynolds’ latest appointee Christopher McDonald: “Pending before the undersigned is Appellants’ Motion for Recusal and Appellees’ Response to the Motion for Recusal. Upon consideration, the motion is denied.”

Waterman’s order struck a defensive tone. Full text:

Upon review of the appellants’ motion for recusal and the appellees’ response, after due consideration, I decline to recuse and will sit on this case. I have not said or done anything that requires my recusal. I will therefore exercise my duty under Rule 51:2.7 of our Judicial Code to hear this matter including participating in the decision whether to retain or transfer the case to the court of appeals.

Mansfield was even more brief: “Having reviewed the appellants’ motion, the appellees’ response, and the applicable law, I plan to take part in this case.”

Comment 5 under the Iowa Code of Judicial Conduct’s Rule 51.2.11 states, “A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.”

Any reasonable person would consider it relevant that Waterman spoke with Holt, the House floor manager of a bill seeking to drastically change judicial selection. If any justices discussed the bill with Senate floor manager Julian Garrett or other lawmakers in the upper chamber, those communications would also be material.

Any reasonable person would consider it relevant that a Supreme Court justice called, texted, or met with Republican lawmakers to encourage passage of a bill affecting the judiciary. Cady wrote that one of his high court colleagues “generally confirmed the report” from an attorney who heard from Meyer “that current justices on the Supreme Court are telling legislators that they think the bill is good policy and should vote for it.” Current and former lawmakers and legislative staff have uniformly told me it is highly irregular for associate Supreme Court justices to weigh in on any pending bill. The chief justice or director of government affairs for the judicial branch (currently Caitlin Jarzen) would be the usual points of contact between state lawmakers and the judiciary.

Any reasonable person would consider it relevant if a Supreme Court justice coordinated with legislative leaders, the governor’s legal counsel, or Reynolds’ former chief of staff Ryan Koopmans (who was also involved with the judicial changes) to find out which House Republicans still needed persuading in late April.

Any reasonable person would consider it relevant if a Supreme Court justice has told acquaintances he has the votes lined up to be chief justice, as Gartner reported, and promoted a law that would allow him to ascend to that role in 2021 rather than 2025. Not only does the chief justice earn $8,000 more than an associate justice, the job would greatly increase Waterman’s stature and responsibilities.

No litigant can force a recusal in Iowa. That decision rests with the judge. But if Waterman and Mansfield believe their communication with key players does not prevent them from giving fair consideration to this case, they should explain that determination after disclosing all of the facts, as the code of judicial conduct requires. Alternatively, if they deny having advocated for the law being challenged, they should put that assertion in writing and sign their names.

UPDATE: Rush filed a motion for Waterman to reconsider, in light of “this unique set of facts and circumstances” that could make a reasonable person “question this justice’s fairness and impartiality.” However, on September 24 Waterman again refused to recuse or disclose his relevant contacts with policy-makers.

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Appendix 1: Initial court filing by plaintiffs challenging the validity of Senate File 638 (Martin Diaz and Leon Spies were later added to the case as plaintiffs)

Appendix 2: Order granting motion to dismiss a lawsuit challenging the validity of Senate File 638

Top image: Iowa Supreme Court photo, from the Iowa Judicial Branch website. Front row, from left: Justice David Wiggins, Chief Justice Mark Cady, Justice Brent Appel. Back row, from left: Justice Susan Christensen, Justice Thomas Waterman, Justice Edward Mansfield, Justice Christopher McDonald.