Lawsuit: Change panel for selecting Iowa justices

Seven of the 15 members of a commission that will recommend finalists to replace three Iowa Supreme Court justices ousted after legalizing gay marriage should be disqualified from participating, a conservative lawyer argued last week.

Four Iowa residents filed a federal lawsuit Wednesday that notes since they are not attorneys they have no role in selecting the seven commissioners, who are lawyers elected through the Iowa State Bar Association. The lawsuit claims the selection system gives lawyers too much influence and is unconstitutional as a result.

“This restricted election denies the citizens of Iowa the right to vote and the right to participate equally in the selection of justices and judges in Iowa,” the lawsuit says.

The lawsuit asks a judge to issue a restraining order to stop the seven members from recommending finalists to the governor to replace Chief Justice Marsha Ternus and justices David Baker and Michael Streit.

Lead attorney James Bopp Jr., an influential conservative lawyer from Indiana, said in a statement Thursday that the lawsuit aims to change a system that “gives attorneys a stranglehold on the judiciary.” He said the process should continue without their participation.

“Lawyers in Iowa have enormous influence over who the state judges are, while the ordinary voter is denied the right to an equal voice,” he said.

Voters removed the justices from office last month in a retention election after conservatives accused them of overstepping their bounds by participating in a 7-0 ruling last year that legalized gay marriage. Justices found the state constitution did not permit the law to exclude gays and lesbians from marriage rights.

Steve Davis, a spokesman for the Iowa judicial branch, said he could not comment on the lawsuit. Republican Gov.-elect Terry Branstad, who has criticized the panel for having too many Democrats, also declined comment through a spokesman.

Besides the members selected through state bar elections, the nominating panel includes seven members appointed by the governor with state Senate confirmation, and the longest-serving justice, who serves as chair. Other than the justice, each serves a six-year term. The commission was created by Iowa voters in 1962 as part of a constitutional amendment adopting a merit-selection system for judges.

The panel will interview applicants and recommend three finalists for each opening to the governor. It’s possible the commission will choose potential replacements before Democratic Gov. Chet Culver’s term ends, but it’s likely that selecting them will be left to Branstad, who will be sworn into office on Jan. 14.

The same lawyer filed a similar lawsuit earlier this year in Kansas. U.S. District Judge Monti Belot dismissed the case in November. Belot cited the outcome of a case from Alaska, also filed by Bopp, in which the 9th Circuit found no evidence that Alaska’s judicial selection system wasn’t working. Belot’s decision is now on appeal.

—Scott Lauck of Missouri Lawyers Media contributed to this report.