Hobbled Iowa Supreme Court Slow To Act

From The Des Moines Register:

Hobbled Iowa Supreme Court slow to act




By GRANT SCHULTE • gschulte@dmreg.com • January 16, 2011




The Iowa Supreme Court's four justices, who face an increased workload after voters ousted three colleagues, will release their first batch of opinions in 2011 in February.



In a typical January, the court releases between eight and 10 rulings, said Iowa state courts spokesman Steve Davis. The court is scheduled to release a round of opinions on Feb. 3.









The temporary slowdown is the result of the November election in which voters booted former Chief Justice Marsha Ternus and Justices David Baker and Michael Streit from the bench, largely based on their 2009 ruling that permitted gay marriage in Iowa.



The justices heard oral arguments last week on three cases and discussed four attorney discipline cases at the Iowa Judicial Branch building in Des Moines.



"Decision production has slowed down because there are fewer members of the court to write decisions," Davis said. "The four justices have altered their schedules slightly but will continue to hear cases, make decisions and move forward working on the functions of the court as they have in the past."



A unanimous decision by four justices generally has the same legal force as a unanimous ruling by all seven, said Drake University law professor Mark Kende, a constitutional scholar. The Iowa Supreme Court can operate with as few as three justices.



He said courts in general may delay hearing cases when their membership is short, to allow a hearing before the full body. Kende said the Iowa Supreme Court usually tries to reach a consensus in its opinions, with few dissenting decisions.



But University of Iowa political science professor Tim Hagle, who studies judicial selection, said the court may want to postpone any large-scale opinions until three new justices join the ranks.



"It's probably better to have a full court, or at least a fuller court," Hagle said. "You're often going to have a situation where maybe one justice has to recuse him or herself, for financial reasons or for knowing someone in the case."



Hagle pointed to new U.S. Supreme Court Justice Elena Kagan, a former U.S. solicitor general. Kagan will likely have to remove herself from cases that involve the United States because of the perception of a conflict, he said.



"You might have some decisions, and especially decisions where the remaining four justices might split," Hagle said. "It might make a difference what three new justices do, and so I think for anything that might be considered controversial, they're probably wise to just hold off a bit and wait."



Interviews to replace the three ousted justices will begin Jan. 24 in a public forum before the Iowa Judicial Nominating Commission.



Sixty-one Iowans applied for a seat; one candidate, State Rep. Richard Anderson, R-Clarinda, has since withdrawn his name.



The 15-member judicial nominating commission will talk to each applicant and submit one list of nine finalists for Republican Gov. Terry Branstad to appoint.



Branstad must appoint three from the list, without legislative confirmation, within 30 days. If Branstad rejects the list, the decision would fall to Iowa Supreme Court Chief Justice Mark Cady.



The court's current docket includes 55 cases that have been heard but not decided, Davis said. As of Friday, there were 19 cases that needed to be heard.



The court will continue to work at the fastest pace possible with its four members, Cady told The Des Moines Register and other reporters on Friday.



"There's a lot of cases to be heard, and we are taking on all the work possible," Cady said after a taped interview on the public affairs show "Iowa Press." "The work that we can't do, we always have the option of transferring to the Court of Appeals."



Cady, of Fort Dodge, said the justices hope to have some opinions written by the end of this week. Cady said he is working at the Iowa Judicial Branch building and in Webster County. Justices who live outside the Des Moines area often work in the county in which they reside.



The Iowa Supreme Court heard 115 cases last year, according to judicial branch statistics. The court considered 106 cases in 2009 and 148 cases in 2008.



The slowdown in rulings is "not something that was unforeseeable," said Kende, the Drake law professor. "It's a distressful situation. Without perhaps realizing it, this is actually the fault of Iowans themselves by removing the justices. It's not the fault of the court that they're missing half of their body."



Even before the ouster of the three justices, Iowa courts were struggling to process cases because of state budget cuts, court administrators and judges say. Case filings have increased 66 percent since 1987, according to court statistics released last week. Judicial branch staff was reduced to 1,753 people in last year's cost-cutting, the lowest total since 1987.