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HISTORY OF THE IOWA COURT OF APPEALS
Hon. Rosemary Shaw Sackett*
Hon. Richard H. Doyle**
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
Early History .............................................................................................1 Creation of the Iowa Court of Appeals ..................................................3 The Court in Controversy ......................................................................10 The Early Five-Judge Court ..................................................................12 Changes ....................................................................................................18 The Expansion of the Iowa Court of Appeals .....................................20 Ten-Year Anniversary ............................................................................22 Transitions ...............................................................................................23 Six Judges to Nine ...................................................................................28 Further Transitions .................................................................................31 Current Work of the Iowa Court of Appeals ......................................38 In celebration of the Iowa Court of Appeals’ thirty-fifth anniversary,
we look back on its history.
I. EARLY HISTORY
The organic law of territorial Iowa vested judicial power in “a
supreme court, district courts, probate courts, and in justices of the peace.”1
There was no provision for an intermediate appellate court. The people of
the territory of Iowa later ratified the constitution of 1846,2 which vested
*
Chief Judge, Iowa Court of Appeals; B.A., Buena Vista College, 1960;
J.D., Drake University Law School, 1963; L.L.M., University of Virginia, 1990.
**
Judge, Iowa Court of Appeals; B.A., Drake University, 1971; J.D., Drake
University Law School, 1976. The authors thank University of Iowa College of Law
student Gina Messamer for her research and editing assistance.
1.
Organic Law of Iowa, § 9 (June 12, 1838), in II THE DEBATES OF THE
CONSTITUTIONAL CONVENTION; OF THE STATE OF IOWA, ASSEMBLED AT IOWA CITY
xii (1857) [hereinafter II DEBATES OF THE CONSTITUTIONAL CONVENTION], available
at
http://www.publications.iowa.gov/7313/2/The_Debates_of_the_Constitutional_
Convention_Vol%232.pdf. “This act of Congress constituted the Organic Law, i.e. the
Constitution, of the Territory of Iowa.” I DOCUMENTARY MATERIAL RELATING TO
THE HISTORY OF IOWA 102 n.1 (Benjamin F. Shambaugh ed., 1896) [hereinafter I
HISTORY OF IOWA] (citations omitted).
2.
I HISTORY OF IOWA, supra note 1, at 185.
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judicial power in “a Supreme Court, District Courts, and such inferior
courts, as the General Assembly may from time to time establish.”3
Another constitutional convention was convened in 1857, with the
ostensible objective of removing an unsatisfactory anti-bank provision
from the Iowa constitution of 1846.4 Delegates to the 1857 constitutional
convention debated, among other issues, whether an intermediate
appellate court should be created.5 Ultimately, the delegates chose not to
recommend to the convention that a court of appeals be formed; however,
the Iowa constitution adopted by the convention gave the Iowa general
assembly the power to create additional courts “inferior to the Supreme
Court.”6 This was later ratified by the people of Iowa.7
The legislature formed such an additional court in 1868.8 Designated
the “General Term,” the court functioned between the district court and
supreme court.9 It consisted of a district judge and two circuit judges from
each district.10 But Iowa’s first intermediate appellate court was so shortlived it barely appears as more than a footnote in Iowa’s legal history—in
1870, the legislature inactivated the court.11 There is little history from the
two-year life of this court, except that its decisions, noted for their brevity,
were “usually embraced in one word ‘affirmed’ or ‘reversed.’”12
3.
IOWA CONST. art. VI, § 1 (1846); I HISTORY OF IOWA, supra note 1, at
202–03. This constitution became the supreme law of the State of Iowa upon Iowa’s
admission into the Union on December 28, 1846. See I HISTORY OF IOWA, supra note
1, at 185–86, 217.
4.
See id. at 217–18.
5.
I THE DEBATES OF THE CONSTITUTIONAL CONVENTION; OF THE STATE
OF IOWA, ASSEMBLED AT IOWA CITY 430–46, 461, 467–71 (1857) [hereinafter I
DEBATES OF THE CONSTITUTIONAL CONVENTION], available at http://www.publications
.iowa.gov/7313/1/The_Debates_of_the_Constitutional_Convention_Vol%231.pdf.
6.
II DEBATES OF THE CONSTITUTIONAL CONVENTION, supra note 1, at
1019–20 (“The judicial power shall be vested in a Supreme Court, District Courts, and
such other Courts, inferior to the Supreme Court, as the General Assembly may, from
time to time, establish.”).
7.
See IOWA CONST. art. V, § 1 (“The judicial power shall be vested in a
supreme court, district court, and such other courts, inferior to the supreme court, as
the general assembly may, from time to time, establish.”).
8.
See 1868 Iowa Acts 116–20.
9.
Id. at 116.
10.
Id.
11.
See 1870 Iowa Acts 40 (repealing the very act in 1868 that created the
court).
12.
PIONEER LAWMAKERS’ ASSOCIATION OF IOWA: FIFTEENTH BIENNIAL
SESSION 54–55 (1915) (quoting Letter from Robert Sloan (Feb. 18, 1915)). In his
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II. CREATION OF THE IOWA COURT OF APPEALS
A century later, the Iowa Supreme Court faced an increasing
workload and began to develop a backlog of appeals ready for
submission.13 The number of cases docketed each month more than
doubled between 1958 and 1969.14 Although the backlog had not yet
become overwhelming, various proposals were made to avert a potential
crisis.15 Five years later, despite several procedural changes,16 the backlog
remarks to the Pioneer Lawmakers’ Association of Iowa on March 11, 1915, Secretary
William H. Fleming noted:
There was in our early years an appellate court, between the district and
supreme courts, designated for want of any other appellation, the ‘General
Term.’ It was composed of the district judge and the two circuit judges, with
which each district was furnished. It seemed like a tribunal composed of one
judge and two apprentices. Regarding that court, I have a letter from Judge
Robert Sloan, probably the last survivor of the members of the short-lived
tribunal. It vanished from existence in the next general assembly after the one
that gave it life, its period being covered by 1868-1870. Here is Judge Sloan’s
letter:
....
I remember the ‘General Term’ very well. In our district there were
two sessions held, and then the Legislature met, and it passed away.
There was not enough of it for either history or comment. The
decisions were noted for their brevity, usually embraced in one word
‘affirmed’ or ‘reversed.’
Id. (quoting Letter from Robert Sloan (Feb. 18, 1915)).
13.
ADMINISTRATION OF THE IOWA APPELLATE SYSTEM (1977), in THE NEW
IOWA RULES OF APPELLATE PROCEDURE 1977: A COMPARISON WITH HINTS FOR THE
PRACTITIONER (Emil Trott, Jr. ed., 1983).
14.
William C. Stuart, Iowa Supreme Court Congestion: Can We Avert a
Crisis?, 55 IOWA L. REV. 594, 596 (1970) (footnote omitted).
15.
See, e.g., id. at 597–612 (acknowledging an intermediate court may be
required if the following suggestions did not work: increasing the number of supreme
court justices, sitting in divisions, using court commissioners, creating intermediate
appellate courts, reducing the kinds of appeals allowed as a matter of right, improving
administrative procedures, increasing the number of law clerks, limiting length of the
record, briefs and oral arguments, reducing the number and length of opinions, and
using memorandum opinions and summary affirmances); see also James D. Hopkins,
The Role of an Intermediate Appellate Court, 41 BROOK. L. REV. 459, 461–62 (1975)
(setting forth various alternatives to relieve courts of the burden of increasing appeals).
16.
Mark McCormick, Appellate Congestion in Iowa: Dimensions and
Remedies, 25 DRAKE L. REV. 133, 141–43 (1975) (noting the procedural changes
included the court sitting in divisions, using per curiam and memorandum opinions in
more cases, adopting a screening process, and submitting more cases without oral
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continued to grow, and the court became unable to decide cases in a timely
manner. The Iowa legislature established the Appellate Court Systems
Subcommittee to study the problem.17 As an interim solution, Justice W.
Ward Reynoldson suggested the creation of a commissioner system in
which the court would endorse opinions written by court-attached
commissioners.18 Justice Mark McCormick, also speaking on behalf of
Justices David Harris and Harvey Uhlenhopp, proposed “a solution that
primarily involve[d] increasing the efficiency of the court along with the
legislature providing more staff for the Supreme Court.”19 Chief Justice C.
Edwin Moore, who also spoke on behalf of Justices M. L. (Larry) Mason,
Maurice Rawlings, Clay LeGrand, and Warren Rees, suggested “the
establishment of an intermediate appellate court system.”20
argument); see William Eberline, ‘Plenty of Cases’ Awaiting Start of Appellate Panel,
CEDAR RAPIDS GAZETTE, Sept. 29, 1976, at 3C (“The nine-member high court has
been sitting for the last several years in two panels of five judges each to increase the
number of cases that can be heard. . . . The logjam now is such that it takes an average
of 22 months after a civil case is ready for submission before the supreme court can
decide it.”); NAT’L CTR. FOR STATE COURTS, STATE COURT CASELOAD STATISTICS:
ANNUAL REPORT,
1976,
at
41
(1976)
[hereinafter
STATE COURT
CASELOAD STATISTICS OF 1976], available at http://contentdm.ncsconline.org/cgibin/showfile.exe?CISOROOT=/ctadmin&CISOPTR=228 (reporting the backlog was
1,078 cases, an increase of 7.9% in 1976 over the previous year).
17.
See Minutes, Appellate Court Systems Subcommittee of the House
Standing Committee on Judiciary and Law Enforcement and the Senate Standing
Committee on Judiciary 1–16 (Oct. 24, 1975) [hereinafter Oct. Minutes] (detailing the
recognition of the creation of the subcommittee and summarizing the initial
information they were tasked to work with).
18.
FINAL REPORT OF THE APPELLATE COURT SYSTEMS SUBCOMMITTEE OF
THE HOUSE STANDING COMMITTEE ON JUDICIARY AND LAW ENFORCEMENT AND THE
SENATE STANDING COMMITTEE ON JUDICIARY 2 (Jan. 1976) [hereinafter FINAL
REPORT]; see also Oct. Minutes, supra note 17, at 14–15.
19.
FINAL REPORT, supra note 18; see also Oct. Minutes, supra note 17, at 8–
14; McCormick, supra note 16, at 148–53 (suggesting improved differentiated case
management, improved pre-submission preparation, changes in opinion assignment
methods, and a substantial reduction in the proportion of full opinions rendered by the
court).
20.
FINAL REPORT, supra note 18; see also Oct. Minutes, supra note 17, at 4–
7. The subcommittee also received testimony from Francis Becker, attorney and
former Iowa Supreme Court justice, and Senator James Redmond, who both endorsed
the establishment of some type of intermediate appellate court. Minutes, Appellate
Court Systems Subcommittee of the House Standing Committee on Judiciary and Law
Enforcement and the Senate Standing Committee on Judiciary 2–7 (Nov. 21, 1975)
[hereinafter Nov. Minutes]; see also Should Iowa Establish a Mini-Supreme Court?,
James M. Redmond Yes, Mark McCormick No, DES MOINES REG., Feb. 8, 1976, at 1B–
2B (exploring the debate further).
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At the time, about one-half of the states had intermediate appellate
courts.21 The Iowa legislature was informed of and studied other states’
appellate courts, including those of Kansas, Missouri, Oregon,22
Massachusetts,23 and Oklahoma.24 Oklahoma had a “lateral” system25 that
allowed its supreme court to reserve issues of first impression and
important constitutional questions.26 Chief Justice Moore favored this
system because “‘[i]t enable[d] [the supreme court] to keep control of the
system.’”27 In the end, the subcommittee recommended the following:
1. That the present nine-member composition of the Supreme Court
be maintained;
2. That a five-member intermediate appellate court, sitting at the seat
of government, be established at the earliest possible time;
3. That the Supreme Court be delegated authority to determine how
original appellate and further appellate jurisdiction is distributed
between the intermediate appellate court and the Supreme Court;
4. That all judges of the newly-established court must keep office at
the seat of government;
5. That the newly-established court should use the services and
facilities of the Supreme Court, although each judge of this court
should have access to individual secretarial and law clerk assistance;
6. That if this new court is established, the Supreme Court should not
21.
See STATE COURT CASELOAD STATISTICS OF 1976, supra note 16, at 35–36
(presenting an analysis regarding the intermediate appellate courts in twenty-five
states); Hopkins, supra note 15, at 462 (“At present, twenty-three States have created
intermediate appellate courts; six States have done so in the last ten years.”). Forty
states now have intermediate courts of appeal. 2010 DIRECTORY OF JUDGES OF STATE
COURTS OF APPEAL xix (West 2010).
22.
See Oct. Minutes, supra note 17, at 5–7.
23.
See id. at 14–15.
24.
See Frank Santiago, Appeals Court Celebrates 10th Year, DES MOINES
REG., Nov. 21, 1986, at 1M; Robert G. Allbee, Address at the Iowa Court of Appeals
Twenty-fifth Anniversary 2 (Nov. 1, 2001).
25.
See STATE COURT CASELOAD STATISTICS: ANNUAL REPORT, 1977, at
352 (1977) [hereinafter STATE COURT CASELOAD STATISTICS OF 1977], available at
http://contentdm.ncsconline.org/cgibin/showfile.exe?CISOROOT=/ctadmin&CISOPT
R= 229 (providing a diagram of how this “lateral” system works).
26.
Santiago, supra note 24.
27.
Eberline, supra note 16.
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be given additional staffing.28
Following the recommendation of the subcommittee, the sixty-sixth
general assembly created the Iowa Court of Appeals in 1976.29 Chief Judge
Oxberger later said, “It was [Moore’s] vision which spearheaded the move
to create the court of appeals.”30
The legislature designed the court of appeals to function as a transfer
court, authorized to review all civil and criminal actions, postconviction
remedy proceedings, and small claims actions transferred to it by the
supreme court.31 The act provided for the supreme court to retain original
appellate jurisdiction in cases of chancery.32 The act subjected the court of
appeals “to the supervisory and administrative control of the supreme
court.”33
The legislature also provided for the State Judicial Nominating
Commission to vet applicants for positions on the court of appeals.34 When
the first round of applicants applied in 1976, the applicants conducted a
“letter writing and personal contact campaign,” having “everybody [they]
knew that would have any influence on each individual commissioner
contact [the commissioner] on [their] behalf,” in an attempt to garner a
28.
29.
FINAL REPORT, supra note 18, at 3.
1976 Iowa Acts 525–29 (codified at IOWA CODE §§ 684.31–.55 (1977),
codified as amended at IOWA CODE §§ 602.5101–.5112, .5201–05 (2011)). The
legislation was approved by the governor on May 24, 1976. 1976 Iowa Acts 545. The
law became effective July 1, 1976. IOWA CODE § 3.7 (1977).
30.
Press Release, Iowa Court of Appeals, Iowa Court of Appeals to Host
Tenth Anniversary Ceremony (n.d.) (on file with authors).
31.
See 1976 Iowa Acts 526 (codified at IOWA CODE § 684.35 (1977), codified
as amended at IOWA CODE § 602.5103 (2011)); see also STATE COURT CASELOAD
STATISTICS OF 1977, supra note 25, at 220 (diagramming the transfers allowed in the
new system).
32.
1976 Iowa Acts 540 (codified at IOWA CODE § 684.1 (1977), codified as
amended at IOWA CODE § 602.4102 (2011)).
33.
1976 Iowa Acts 529 (codified at IOWA CODE § 684.55 (1977)). This
provision was not carried over in the 1983 recodification of court statutes. 1983 Iowa
Acts 409–82 (codified at IOWA CODE ch. 602 (1985), current version at IOWA CODE ch.
602 (2011)). The Iowa constitution provides that the supreme court “shall exercise a
supervisory and administrative control over all inferior judicial tribunals throughout
the state.” IOWA CONST. art. V, § 4 (amended 1962).
34.
1976 Iowa Acts 531 (codified at IOWA CODE § 46.15 (1977), codified as
amended at IOWA CODE § 46.14A (2011)). The commission was composed of seven
lawyers, seven laymembers, and the senior justice of the Iowa Supreme Court. DVD:
Interview by H. Richard Smith with Robert G. Allbee, in Des Moines, Iowa (Friends
of the Iowa Judiciary Aug. 25, 2005).
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nomination.35 In late August 1976, the nominating commission, chaired by
Iowa Supreme Court Justice Larry Mason, selected fifteen out of thirtynine applicants for nomination to the Republican Governor Robert Ray.36
35.
Interview by Chuck Montgomery with Leo Oxberger 40 (Sept. 19, 2002)
(on file with authors).
36.
See Richard Doak, 39 Apply for Seat on New Court, DES MOINES TRIB.,
Aug. 17, 1976, at 11. The thirty-nine applicants were:
William E. Adams, district associate judge, Sioux City; Robert G. Allbee,
district judge, Des Moines; Morris L. Allen, Marion; Leslie L. Boomhower,
magistrate, Mason City; Robert W. Brennan, Des Moines; James H. Carter,
district judge, Cedar Rapids; A.M. Critelli, district judge, Des Moines; Thomas
F. Daley, Davenport; Allen L. Donielson, U.S. attorney, Des Moines; Forest
E. Eastman, district associate judge, Cedar Falls; Norman D. Elliott, district
associate judge, Des Moines; John M. Fachman, district associate judge, Sioux
City; George G. Fagg, district judge, Marshalltown; W.J. Giles III, Sioux City;
Luther T. Glanton, [J]r., district associate judge, Des Moines; Robert A.
Gottschald, Indianola; Richard E. Haesemeyer, solicitor general, Des Moines;
Joseph L. Hanson, Emmetsburg.
Edward R. Hayes, Drake University, Des Moines; Richard S. Hudson, Drake
University, Des Moines; Dan L. Johnston, Des Moines; Edward F. Kolker,
Des Moines; Ronald W. Kuntz, Des Moines; Charles W. Larson, public safety
commissioner, Des Moines; Jerry Larson, district judge, Harlan; Walter F.
Maley, West Des Moines; Glenn Metcalf, Moville; David P. Miller, Davenport;
Theodore H. Miller, Des Moines; Kathleen M. Neylan, Elkader; Leo
Oxberger, district judge, Des Moines; Floyd L. Pinder, Des Moines; Oliver
Reeve, Waverly; Thomas A. Renda, district associate judge, Des Moines;
James H. Reynolds, Dubuque; Mark E. Schantz, University of Iowa, Iowa
City; J. Herman Schweiker, Des Moines; Bruce M. Snell, [J]r., Ida Grove;
Howard B. Wenger, Hamburg.
Id.; see also Paul Leavitt & James Flansburg, Ray Appoints 5 Republicans to New
Court, DES MOINES REG., Sept. 24, 1976, at 1A (stating the commission considered
forty-one applicants); Steven Walters, Judges, Officials Apply for Seats on New Court,
DES MOINES TRIB., July 9, 1976, at 3; Interview with Robert G. Allbee, supra note 34.
At the time, the commission was required to provide three nominees to the
governor for each vacancy. 1976 Iowa Acts 531 (codified as amended at IOWA CODE §
46.15 (1977)). Rather than specifying three nominees for each available position, the
nominating commission submitted a list of fifteen nominees from which Governor
Robert Ray was to select the five new judges. Interview with Robert G. Allbee, supra
note 34.
On August 24, 1976 the commission announced the fifteen nominees:
Robert G. Allbee of Des Moines, a District Court Judge; James H. Carter of
Cedar Rapids, a District Court Judge; Anthony M. Critelli of Des Moines, a
District Court Judge; Thomas F. Daley, Jr., of Davenport, an attorney; Allen
L. Donielson of Des Moines, a U.S. Attorney for the Southern District of
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The law allowed the governor thirty days to select the appointments,37 and
in this time the governor conducted interviews with the nominees.38
On September 23, 1976, Governor Ray appointed the first five judges
to the court: Robert G. Allbee and Leo E. Oxberger, Fifth Judicial District
Judges, Des Moines; Allen (Barney) L. Donielson, U.S. Attorney,
Southern District of Iowa, Des Moines; James H. Carter, Sixth Judicial
District Judge, Cedar Rapids; and Bruce M. Snell Jr., attorney, Ida Grove.39
All five appointees were under the age of fifty.40 All five were
Republicans, although Governor Ray stated he did not choose the judges
on the basis of political affiliation.41
The initial term of office for the new judges extended until January 1,
1979, with the legislation that created the court requiring the judges to
stand for retention in the 1978 judicial election.42 After retention, the
Iowa; George G. Fagg of Marshalltown, a District Court Judge; Richard E.
Haesemeyer of Des Moines, Solicitor General of Iowa; Joseph L. Hanson of
Emmetsburg, an attorney; Jerry Larson of Harlan, a District Court Judge;
Theodore H. Miller of West Des Moines, an attorney; Leo Oxberger of Des
Moines, a District Court Judge; James H. Reynolds of Dubuque, an attorney;
L. Vern Robinson of Iowa City, an attorney; Mark E. Schantz of Iowa City,
professor of law at the University of Iowa, and Bruce M. Snell, Jr., of Ida
Grove, an attorney.
Appeals Court Finalists Named, DES MOINES REG., Aug. 25, 1976, at 12A; see also
Leavitt & Flansburg, supra.
37.
See 1976 Iowa Acts 531 (codified at IOWA CODE § 46.15(2) (1977),
current version at IOWA CODE § 46.15(2) (2011)).
38.
Interview with Robert G. Allbee, supra note 34.
39.
Leavitt & Flansburg, supra note 36.
40.
Interview with Robert G. Allbee, supra note 34; see Leavitt & Flansburg,
supra note 36, at 17A.
41.
Ray Defends Appointing Republicans, DES MOINES TRIB., Sept. 24, 1976,
at 1.
42.
1976 Iowa Acts 528 (“Judges of the court of appeals . . . shall stand for
retention in office as provided in chapter forty-six (46) of the Code.”). Iowa Code
section 46.16(1) provided that “[t]he initial term of office shall be for one year after
appointment and until January 1 following the next judicial election after expiration of
such year.” IOWA CODE § 46.16(1) (1977). Original appointees Carter, Donielson,
Oxberger, and Snell were on the 1978 retention ballot. See MELVIN D. SYNHORST,
SEC’Y OF STATE, STATE OF IOWA CANVASS OF THE VOTES, GENERAL ELECTION,
NOVEMBER 7, 1978, at 12 (1978), available at
http://www.sos.state.ia.us/pdfs
/elections/results/70s/1978gencanv.pdf. Having been appointed to the supreme court in
1978, Allbee was not on the 1978 ballot. See Robert G. Allbee (1978–1982), IOWA
JUDICIAL BRANCH, http://www.iowacourtsonline.org/wfdata/frame1773-1463/pressrel90
.asp (last visited Nov. 28, 2011).
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regular term of a court of appeals judge is six years,43 but the legislation
that created the court provided for staggered terms for the initial
appointees—two judges were to serve an irregular term of four years, two
judges were to serve an irregular term of five years, and one judge was to
serve a regular term of six years.44 The judges would serve regular terms
thereafter.
Governor Ray swore in the judges on September 28, 1976,45 just five
days after naming them to the court.46 In a special session of the Iowa
Supreme Court, Governor Ray proclaimed to the standing-room-only
crowd, “This is a very historic moment.”47 In the ceremony, Judge Snell
was given the robe of his father, Iowa Supreme Court Justice Bruce M.
Snell Sr., who had died just hours before his son was named as an appellate
judge.48 Chief Justice Moore expressed confidence that with the new fivejudge appellate court, “‘we will get our docket current within a few
months,’”49 and he surmised that the new court would handle at least a
third of all appeals.50 It was anticipated the new court would begin its work
in November and start hearing cases in January 1977.51
43.
1976 Iowa Acts 532 (codified at IOWA Code § 46.16(2) (1977), codified as
amended at IOWA CODE § 46.16(1)(b) (2011)).
44.
1976 Iowa Acts 532 (codified at IOWA CODE § 46.16(2) (1977)). Judges
Donielson and Oxberger served four-year terms and were on the retention ballot again
in 1982. See MARY JANE ODELL, SEC’Y OF STATE, SUMMARY OF OFFICIAL CANVASS
OF VOTES CAST IN IOWA GENERAL ELECTION, NOVEMBER 2, 1982, at 25 (1982),
available at http://www.sos.state.ia.us/pdfs/elections/results/80s/1982gencanv.pdf. Judge
Snell served a six-year term and was on the retention ballot in 1984. See MARY JANE
ODELL, SEC’Y OF STATE, SUMMARY OF OFFICIAL CANVASS OF VOTES CAST IN IOWA
GENERAL ELECTION, NOVEMBER 6, 1984, at 12 (1984), available at
http://www.sos.state.ia.us/pdfs/elections/results/80s/1984gencanv.pdf.
Having been
appointed to the supreme court before his term on the court of appeals expired, Judge
Carter did not appear on the 1982 ballot for retention on the court of
appeals.
See James H. Carter (1982–2006), IOWA JUDICIAL BRANCH,
http://www.iowacourtsonline.org/wfdata/frame1773-1463/pressrel99.asp (last visited
Nov. 28, 2011).
45.
Paul Leavitt, Iowa’s 5 New Appeals Judges Are Sworn In, DES MOINES
REG., Sept. 29, 1976, at 10A.
46.
Leavitt & Flansburg, supra note 36.
47.
Leavitt, supra note 45.
48.
Id.
49.
Eberline, supra note 16.
50.
Leavitt, supra note 45.
51.
Id.
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III. THE COURT IN CONTROVERSY
No sooner had the judges taken their oaths and donned their robes
than they received a challenge to their positions on the new Iowa Court of
Appeals. Iowa Attorney General Richard Turner was behind the
challenge.52 In an unsolicited, hand-delivered opinion, Turner told
Governor Ray “he felt it was his ‘duty and responsibility to inform [Ray] of
a grave problem which has arisen.’”53 Turner told the governor the
appointments of District Court Judges Allbee, Carter, and Oxberger were
void because the appointments violated the Iowa constitution.54 The
constitutional provision in question stated, “Judges of the supreme court
and district court shall be ineligible to any other office of the state while
serving on said court and for two years thereafter, except that district
judges shall be eligible to the office of supreme court judge.”55
Adopted before a court of appeals existed, “[t]he main purpose of the
amendment was to remove the state’s judicial system from partisan
politics.”56
“Turner himself called the implications of his opinion
‘sickening’ and said it was a ‘tragedy’” for the three district court judges
who had already been sworn in as appellate judges.57
In response to the controversy, Chief Justice Moore told Judges
Allbee, Carter, and Oxberger that before the court began work on
November 1, 1976, they would have to decide “whether to join the
appellate court—and take a chance of being thrown off—or keep their
positions on the district court bench.”58 The newly appointed appellate
judges expressed mixed feelings about their challenged positions. Judge
Carter stated he “‘certainly wouldn’t fault’ Turner for issuing the
52.
John Hyde & Barbara Mack, Turner Says 3 New Judges Not Eligible, DES
MOINES REG., Oct. 19, 1976, at 1A.
53.
Id.
54.
Id.
55.
IOWA CONST. art. V, § 18 (amended 1962).
56.
Editorial, Turner’s Bombshell, DES MOINES REG., Oct. 20, 1976, at 8A.
57.
Hyde & Mack, supra note 52.
58.
John Hyde, 3 Judges Told to Decide on Appeals Post by Nov. 1, DES
MOINES REG., Oct. 20, 1976, at 1; see also Richard Doak, Asks Court Not to Seat Five
Judges, DES MOINES TRIB., Oct. 20, 1976, at 7 (discussing state Senator James
Redmond’s appeal to the Iowa Supreme Court to prevent the newly named Iowa Court
of Appeals judges from taking office in response to the controversy raised by Attorney
General Richard Turner of the possible unconstitutionality of the judges’ appointments
to the court of appeals).
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opinion”59 and indicated “if the controversy [was] not resolved by the Nov.
1 deadline he would probably elect to remain on the district court bench.”60
Judge Oxberger stated that “if he had to make a choice before the question
of his eligibility [was] decided, he would choose to serve on the appellate
court.”61 Judge Allbee stated, “‘There are too many contingencies at the
moment. I’ll have to decide after seeing what happens in the next couple
of weeks.’”62 Of the five new judges, “only [Judge] Donielson said he
would ‘positively’ report for work . . . . ‘I’ve ordered my robe and I’m
quitting my job as (U.S.) attorney effective that date.’”63 Judge Snell said
he would “‘very likely’” join Judge Donielson on November 1.64
In order to obtain judicial resolution of the controversy, State Senator
James Redmond joined the fray by filing a lawsuit challenging the
eligibility of the district court judges for appointment to the court of
appeals.65 Redmond, a Democrat from Cedar Rapids who was a persuasive
advocate for the creation of the court of appeals, asked the Iowa Supreme
Court to exercise original jurisdiction to prohibit the judges from taking
office.66 Explaining his actions, Redmond asserted he was “just providing a
vehicle to get [a quick resolution].”67 Redmond also criticized Turner for
merely issuing an opinion, stating that, in order to resolve the issue quickly,
“Turner himself should have filed legal action to prevent the judges from
taking office.”68
Turner countered with “a two-pronged attack against the
appointment of [the] three district court judges.”69 He petitioned the Polk
County District Court, “asking that the three judges be ‘ousted’ from the
appellate court.”70 In addition, he filed a petition of intervention in
59.
60.
61.
62.
63.
Hyde & Mack, supra note 52, at 3A.
Hyde, supra note 58.
Id.
Id.
Margaret Engel, Supreme Court Will Hear Challenge of Appeals Judges,
DES MOINES REG., Oct. 24, 1976, at 3A.
64.
Id.
65.
See Redmond v. Carter, 247 N.W.2d 268, 269 (Iowa 1976); Doak, supra
note 58.
66.
See Hyde, supra note 58.
67.
Doak, supra note 58.
68.
Id.
69.
John Hyde & David Yepsen, Turner Sues to Void Appellate
Appointments, DES MOINES REG., Oct. 21, 1976, at 8A.
70.
Id.
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Redmond’s supreme court action, arguing that the Polk County District
Court should exercise jurisdiction in the controversy.71 Turner contended
“Redmond had filed a ‘friendly’ action,” and that Redmond would “‘not
pursue and prosecute the case and fully present and argue the merits of the
allegations he makes.’”72 Turner alleged Redmond planned to “‘roll over
and lose this case.’”73 Redmond called the accusations “‘ridiculous and
unfair.’”74 He also said “the fact the governor appointed all Republicans to
the new court had no bearing on his suit.”75
At a special session held on Saturday, October 23, 1976,76 the Iowa
Supreme Court “accepted original jurisdiction of [the] case under [its]
supervisory power,”77 but refused to issue an injunction barring the
appointees from reporting to work on November 1, 1976.78 The court also
allowed Turner to intervene in the suit.79 The Iowa Supreme Court filed its
decision on November 23, 1976, just thirteen days after hearing oral
arguments.80 The court held “that the rights of district judges as a class
under the equal protection clause of the fourteenth amendment to the
United States Constitution would be infringed by application of that
provision [Iowa Constitution article V, section 18] to make them ineligible
for appointment to the court of appeals.”81 Holding that Iowa constitution
article V, section 18 could not be applied to bar the appointment of district
judges to the court of appeals, the court dismissed the petition for
supervisory review and the petition of intervention.82
IV. THE EARLY FIVE-JUDGE COURT
On Monday, November 1, 1976, the newly appointed judges met for
the first time as a court.83 The judges met in the supreme court conference
room, which was filled with stacks of briefs awaiting the court’s
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
Id.
Id.
Engel, supra note 63.
Id.
Id.
See id.
See Redmond v. Carter, 247 N.W.2d 268, 269 (Iowa 1976).
Engel, supra note 63.
Id.
See Redmond, 247 N.W.2d at 268.
Id. at 271.
Id. at 274.
See Allbee, supra note 24, at 1.
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consideration.84 On that day, the judges elected Judge Allbee as the court’s
first chief judge.85
The legislation that created the court provided it would meet and
hear cases only at the seat of the state government,86 with no expense
84.
85.
Id.; Interview with Robert G. Allbee, supra note 34.
Allbee, supra note 24, at 1. After Chief Judge Albee, the order of
precedence of the judges on the original court was: Donielson, Snell, Oxberger, and
Carter. Judges of the court other than the chief judge have precedence according to
the length of time served on the court. Of several judges having equal periods of time
served, the eldest has precedence. 1976 Iowa Acts 526 (codified at IOWA CODE §
684.34(3) (1977), current version at IOWA CODE § 602.5105(4) (2011)).
86.
1976 Iowa Acts 526 (codified at IOWA CODE § 684.33 (1977)). In 1998,
during the renovation of the supreme court courtroom in the capitol, the legislature
granted the court of appeals special permission to travel to locations other than the
seat of the state government to hear oral arguments for a period of time. 1998 Iowa
Acts 869. That summer, the court heard arguments in Ames, Pella, Carroll, Cedar
Falls, and Burlington. See Press Release, Supreme Court of Iowa, Iowa Court of
Appeals to Hold Court in Council Bluffs (Feb. 12, 1999) [hereinafter Press Release
Council Bluffs] (on file with authors); Press Release, Supreme Court of Iowa, Iowa
Court of Appeals to Hold Court in Spencer and Okoboji (May 10, 1999) [hereinafter
Press Release Spencer and Okoboji] (on file with authors). In 1999, the legislature
repealed the statutory requirement that the court only meet in Des Moines. 1999 Iowa
Acts 307 (codified at IOWA CODE § 602.5104 (2001), current version at IOWA CODE §
602.5104 (2011)). That year, the court heard oral arguments “at the Iowa School for
the Deaf (ISD) in Council Bluffs in conjunction with the Second National Law-Related
Education Conference for Deaf and Hard of Hearing Students and Their Teachers.”
See Press Release Council Bluffs, supra. The court used real-time reporting, and the
dialogue was projected on a screen, enabling the students to read what was said. Mike
Whye, Technology Makes Courtroom Action a Little Less Silent for These Students,
DES MOINES REG., Feb. 27, 1999, at 6M. The court also heard oral arguments in
Spencer at the Clay County Courthouse and in Okoboji as part of the Lawyers
Chautauqua Program. Press Release Spencer and Okoboji, supra; Court of Appeals Is
Still on the Go, DES MOINES REG., May 14, 1999, at 8M. Since then, the court has
heard arguments in Waverly (City Hall); Orange City (Northwestern College and
Sioux County Courthouse); Clinton (Clinton County Administration Building);
Decorah (Luther College); Cedar Rapids (Coe College); Sioux Center (Dordt
College); Dubuque (Loras College); Iowa City (University of Iowa College of Law);
and Spirit Lake (Dickinson County Courthouse). Press Release, Supreme Court of
Iowa, Iowa Court of Appeals to Hold Court in Orange City (Oct. 3, 2000) (on file with
authors); Press Release, Supreme Court of Iowa, Iowa Court of Appeals to Hold Court
in Clinton (Oct. 23, 2000) (on file with authors); Press Release, Supreme Court of
Iowa, Iowa Court of Appeals to Hold Court in Decorah (Mar. 16, 2001) (on file with
authors); Press Release, Supreme Court of Iowa, Iowa Court of Appeals to Hold Court
in Sioux Center (Oct. 4, 2001) (on file with authors); News Release, Iowa Judicial
Branch, Court of Appeals Judges to Hold Court in Orange City (Nov. 1, 2004) (on file
with authors); News Release, Iowa Judicial Branch, Court of Appeals Judges to Hold
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money authorized for judges’ travel within the state.87 It was originally
assumed that judges would be required to live in the capital city.88 To the
contrary, some members of the new court maintained their hometown
loyalties. The judges who lived outside Des Moines, Judges Carter and
Snell, traveled to Des Moines at their own expense once a month to hear
cases.89 They spent nights at the homes of friends, hotels, or on couches in
their chambers.90 Judge Carter stated, “We were instrumental in having
the showers installed in the Court of Appeals quarters.”91 Not until 1983
Court in Okoboji (May 26, 2005) (on file with authors) [hereinafter News Release
Okoboji I]; News Release, Iowa Judicial Branch, Court of Appeals Judges to Hold
Court in Okoboji (May 22, 2006) [hereinafter News Release Okoboji II] (on file with
authors); News Release, Iowa Judicial Branch, Court of Appeals to Hear Arguments in
Dubuque (Sept. 6, 2006) (on file with authors); News Release, Iowa Judicial Branch,
Court of Appeals to Hear Arguments in Iowa City (Feb. 27, 2008) (on file with
authors); News Release, Iowa Judicial Branch, Court of Appeals Judges to Hear
Arguments in Okoboji (May 19, 2008) [hereinafter News Release Okoboji III] (on file
with authors); News Release, Iowa Judicial Branch, Iowa Court of Appeals to Hear
Arguments in Spirit Lake (Mar. 24, 2009) (on file with authors); News Release, Iowa
Judicial Branch, Iowa Court of Appeals to Hear Oral Arguments at University of Iowa
College of Law March 8–9 (Mar. 2, 2011) (on file with authors); News Release, Iowa
Judicial Branch, Iowa Court of Appeals to Hear Arguments in Spirit Lake and
Okoboji (May 23, 2011) [hereinafter News Release Spirit Lake and Okoboji] (on file
with authors). Traditionally, the court hears arguments each year at the annual
Lawyers’ Chautauqua in Okoboji. See, e.g., Press Release Spencer and Okoboji, supra;
News Release Okoboji I, supra; News Release Okoboji II, supra; News Release
Okoboji III, supra; News Release Spirit Lake and Okoboji, supra.
87.
See 1976 Iowa Acts 528 (codified at IOWA CODE § 684.45 (1977))
(providing the expenses and office space available to the judges, which did not include
travel expenses).
88.
See Steven Walters, Judges, Officials Apply for Seats on New Court, DES
MOINES TRIB., July 9, 1976, at 3. Iowa Supreme Court Justice M. L. Mason stated,
“[T]he law creating the Court of Appeals requires that those named to the court live in
Des Moines—a requirement that he said has already forced two interested attorneys to
withdraw their applications.” Id.; DVD: Interview by Larry Eisenhauer with Bruce
Snell, Jr., in Des Moines, Iowa (Friends of the Iowa Judiciary Oct. 1, 2009) (stating
legislators were of the view that the judges should live in Des Moines and the
legislature did not want to incur the per diem expense).
89.
Retirement Honorable Bruce M. Snell, Jr., 652 N.W.2d XXVII, XXXII
(2001) (discussing the Honorable James Carter and the Honorable Bruce M. Snell Jr.’s
retirement, as told by Honorable James Carter).
90.
Id.; In Memoriam Honorable Allen L. Donielson, 564 N.W.2d LVII,
LXII (1996) (discussing the Honorable Allen L. Donielson, as told by Honorable
James Carter).
91.
Retirement Honorable Bruce M. Snell, Jr., 652 N.W.2d at XXXII;
Interview with Bruce Snell, Jr., supra note 88 (stating the shower was installed in the
vault in the capitol).
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did legislation authorize the payment of out-of-town judges’ expenses for
traveling to Des Moines for attendance at oral arguments and judicial
conferences.92
In the beginning, the location of space for the court’s operations was a
matter of some dispute, with Chief Justice Moore “lock[ing] horns with
some legislators over space allocation in the Capitol building.”93 For the
first two months, the judges worked out of the state law library in the
capitol94 before moving to “a small frame building located on East 14th
Street at the south boundary of the Des Moines Freeway.”95 After the
move, the judges “commuted” to the capitol to research in the state law
library and for oral hearings.96 When space became available in the capitol
after the secretary of agriculture moved into the Wallace Building, the
court relocated into the capitol,97 against protests from the legislature.98
Judge Oxberger recalled Chief Justice Moore telling the legislature, “‘Well,
gentlemen, you can all argue all you want to, but when the case comes to
court, the court will decide and we’ve decided this space goes to the Court
of Appeals.’”99
In November 1976, the supreme court transferred forty-two cases to
the court of appeals, and an additional twenty-seven in December.100 On
January 17, 1977, the court began hearing cases en banc,101 although it
would later hear cases in panels of three due to an increased need for
production.102 The court heard oral arguments for twenty-five cases in the
span of only three days, and considered an additional fifteen cases
92.
1983 Iowa Acts 428 (codified at IOWA CODE § 602.5205(1) (1985),
codified as amended at IOWA CODE § 602.5205(1) (2011)).
93.
Paul Leavitt, New Appellate Court Reducing Iowa’s Huge Case Backlog,
DES MOINES REG., Jan. 22, 1978, at 23; Interview with Leo Oxberger, supra note 35, at
42.
94.
Interview with Leo Oxberger, supra note 35, at 41.
95.
Allbee, supra note 24, at 4; see also Interview with Leo Oxberger, supra
note 35, at 41.
96.
Allbee, supra note 24, at 4.
97.
Id.
98.
See Interview with Leo Oxberger, supra note 35, at 42–43.
99.
Id. at 43.
100.
Allbee, supra note 24, at 4.
101.
Id. at 5. The court was initially prohibited from sitting in divisions. IOWA
R. APP. OPERATING P. 3 (1977) (“The Court of Appeals shall not sit in divisions.”)
(repealed 1979).
102.
Interview with Leo Oxberger, supra note 35, at 41; Interview with Robert
G. Allbee, supra note 34.
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submitted without oral arguments.103
Cases selected for oral argument were not pre-assigned to authoring
judges.104 Instead, judges drew their writing assignments from an ashtray
after hearing oral arguments.105 Because it required all of the judges to be
prepared to author any given opinion, Chief Judge Allbee called this
system a “hot court” approach to writing opinions.106
On January 28, 1977, the court filed its initial batch of decisions.107
Each opinion was relatively brief.108 Chief Judge Allbee noted the supreme
court strongly encouraged the court of appeals to present decisions as
briefly as possible, while still doing justice to the cause.109 The court filed
many opinions per curiam (without attributing an individual author).110
In total, the court filed 330 decisions in its first full year of existence,
averaging 4.9 written pages per case.111 The court of appeals did not
publish its early opinions, except in the special case of permission from the
supreme court.112 The supreme court did not encourage publication, as the
103.
104.
105.
106.
107.
108.
Allbee, supra note 24, at 5.
Interview with Leo Oxberger, supra note 35, at 42.
Id.; Interview with Robert G. Allbee, supra note 34.
Interview with Robert G. Allbee, supra note 34.
Allbee, supra note 24, at 4–5.
See IOWA R. APP. OPERATING P. 5(a) (1977) (“Memorandum opinions
should be utilized by the Court of Appeals to dispose of most of the cases it decides.”)
(repealed 1979).
109.
Interview with Robert G. Allbee, supra note 34.
110.
Id.
111.
THE IOWA COURT OF APPEALS, ANNUAL STATISTICAL REPORT OF
COURT ADMINISTRATION 15, 17 (1977); see also Leavitt, supra note 93, at 23 (noting
the court filed 327 decisions); Allbee, supra note 24, at 5 (stating the court filed 329
decisions—257 were civil and 72 were criminal).
112.
Allbee, supra note 24, at 5; IOWA R. APP. OPERATING P. 7(a) (1977) (“An
opinion of the Court of Appeals shall be published on upon approval by the Supreme
Court.”) (repealed 1979). During the process of establishing appellate operating rules
for the court of appeals, Marian Opala, Oklahoma State Court Administrator,
contended that there should be no publication of Court of Appeals opinions
and further that they be without “precedent.” He believed that Court of
Appeals’ Justices would seek “immortality” through publication and that if
there were even the slightest opportunity for publication they would constantly
be “manicuring” opinions in hopes of getting them published—thereby
wasting court time and defeating the purpose for which the Court of Appeals
was created.
MINUTES
OF
MEETING, IOWA APPELLATE RULES & PROCEDURES PROJECT 5 (1976).
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court of appeals’ mandate was to expedite dispositions and relieve the
supreme court docket, rather than draft legal literature.113 However, the
supreme court rarely declined a request to publish a court of appeals
opinion because the court of appeals carefully and sparingly requested
publication.114 Chief Judge Allbee estimated that in his twenty months on
the court of appeals, the supreme court authorized the publication of only
three of his approximately one hundred and forty opinions.115
The court’s performance earned accolades from Chief Justice Moore,
who commended the court on “‘a splendid job.’”116 Chief Justice Moore
attested to the fact that the court of appeals cut the time delay for hearing
ordinary civil lawsuit appeals—a low priority prior to the establishment of
the court of appeals—from twenty-one months to ten months.117 Justice
Allbee reviewed the creation of the court of appeals, stating that although
gaining acceptance of the court was an issue, “people were simply relieved
to have something resolved, rather than being in the bowels of the court for
a year.”118 Governor Ray called the court of appeals judges “‘leaders in the
A rule change in 1981 established a new process for authorizing publication. See IOWA
CT. R. 10(c) (1981) (codified as amended at IOWA CT. R. 21.30(3) (2010)). The court,
“by majority vote of its members en banc, shall decide which of its opinions shall be
published.” IOWA CT. R. 21.30(3) (2010). “An opinion may be published only after it
is final.” Id. “A decision of the court of appeals is final . . . except upon the granting
by the supreme court of an application for further review . . . .” IOWA CODE §
602.5106(2) (2010). “When further review is granted, the supreme court shall decide
whether the court of appeals opinion will be published.” IOWA CT. R. 21.30(3) (2010).
In 2010, the court published twenty-three opinions. Archive of Opinions for the Iowa
Court of Appeals, IOWA JUDICIAL BRANCH, http://www.iowacourts.gov/Court
_of_Appeals/Opinions_Archive/index.asp (last visited Nov. 29, 2011).
113.
Allbee, supra note 24, at 5; Interview with Robert G. Allbee, supra note
34; Interview with Bruce Snell, Jr., supra note 88 (“There were those on the supreme
court—justices—who felt that the court of appeals should never publish any of their
cases. There were some that thought that that should not be the rule, that some cases
were worthy of publication, subject to the discretion of the supreme court. And in one
of the early discussions on that subject that we five on the court of appeals had with the
supreme court, the question was proposed by one of the supreme court justices ‘how
many cases do you think the court of appeals should publish?’ and one of the justices
said ‘how about none.’ That made a significant point on us, that it was going to be a
long time before any of our cases would be published.”).
114.
Interview with Robert G. Allbee, supra note 34.
115.
Id.
116.
Leavitt, supra note 93.
117.
Id.
118.
Interview with Robert G. Allbee, supra note 34 (Once when the court of
appeals overturned a district court judge’s opinion, the district court responded by
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field of law (who) are mindful of the importance of people and the rights of
individuals.’”119
V. CHANGES
Changes to the composition of the court followed soon after its
creation. In 1978, Chief Judge Allbee left the court of appeals to join the
supreme court.120 Recalling his tenure on the court of appeals, Chief Judge
Allbee stated that as chief judge, he “came to understand what is meant by
the expression, ‘like herding cats.’”121 Each member of the court was
fiercely independent, and the court’s “rate of non-unanimous decisions was
roughly 15%.”122 When strong differences of opinion arose, Chief Judge
Allbee found “the occasional application of some after hours ‘catnip’ had a
healing effect.”123 Chief Judge Allbee and Judge Snell affirmed that
despite differences of opinion, the court remained congenial.124
Drake University Law School professor Janet A. Johnson filled Chief
Judge Allbee’s vacancy and became the first academic to serve on the court
of appeals.125 Johnson was also the first woman ever nominated for a
calling the court of appeals “the baby court.”).
119.
Leavitt, supra note 93 (alteration in original).
120.
See Letter from Robert G. Allbee, Chief Judge, Iowa Court of Appeals,
to Robert D. Ray, Governor, State of Iowa (July 18, 1978) (on file with authors).
121.
Allbee, supra note 24, at 6; Interview with Robert G. Allbee, supra note
34.
122.
Allbee, supra note 24, at 6.
123.
Id.
124.
Interview with Bruce Snell, Jr., supra note 88 (“I would say it was the
greatest that you could hope for and obtain—both from the original five judges to the
expanded number. We all got along beautifully well. . . . Most of our opinions were
without dissent but dissents were not discouraged. Anybody that wanted to dissent—
just have at it.”). The judges began a tradition of dining together once a month—a
tradition that continues to this day, fostering camaraderie among the court members.
See Retirement Proceedings Honorable Albert L. Habhab, 586 N.W.2d LXV, LXXV
(1997) (noting a funny story from one instance that these dinners were held).
125.
See Debra Kneeland, Events of 1968 Turned Johnson to Law, DES
MOINES REG., Sept. 23, 1978, at 1B. Twenty-two applied for the vacancy:
Norman Bastemeyer, Orange City; Margaret Briles, Davenport; Helen Buckley,
Iowa City; Anthony Critelli, Des Moines; J.P. Denato, Des Moines; Forest Eastman,
Cedar Falls; Karla Fultz, Des Moines; Richard Haesemeyer, Des Moines; Joseph
Hanson, Emmetsburg; Maynard Hayden, Indianola; Mary Hellweg, Altoona; Richard
Hudson, Des Moines; Janet Johnson, Des Moines; Patricia Kamath, Iowa City; Ralph
McCartney, Charles City; Theodore Miller, Des Moines; William Raisch, Des Moines;
Thomas Renda, Des Moines; Anna Shinkle, Des Moines; Richard Strickler, Des
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position on an Iowa appellate court.126
Next to depart the court was Judge Carter, who was appointed to the
supreme court in 1982.127 Governor Ray appointed Eighth Judicial District
Judge Dick R. Schlegel as Carter’s replacement.128 After serving on the
court for five years, Judge Johnson left the court in 1983129 to become Dean
of Pace University School of Law.130 Republican Governor Terry E.
Moines; James Tyler, Newton; and Don Uthus, Des Moines. Letter from Clay
LeGrand, Chairman, State Judicial Nominating Commission, to The Members of the
State Judicial Nominating Commission (Aug. 25, 1978) (on file with authors).
In addition to Johnson, the nominees were District Court Judges Maynard J.V.
Hayden of Indianola and Richard Strickler of Des Moines. David Yepsen & Louise
Swartzwalder, Ray Expected to Name Woman to Court, DES MOINES REG., Sept. 22,
1978, at 7A.
126.
Yepsen & Swartzwalder, supra note 125, at 1A.
127.
Letter from Mary Jane Odell, Secretary of State, State of Iowa, to Clay
LeGrand, Chairperson, Judicial Nominating Committee (Aug. 10, 1982) (on file with
authors); News Release, State Judicial Nominating Commission, State Judicial
Nominating Commission Will Select Three Nominees for a Vacancy on the Iowa Court
of Appeals (Aug. 18, 1982) (on file with authors) (announcing vacancy on court of
appeals as a result of Carter’s appointment to the Supreme Court of Iowa).
128.
Judicial Post to Schlegel, DES MOINES REG., Oct. 23, 1982, at 3A.
Twenty-one applied for the vacancy:
Joseph M. Bauer, Attorney, Des Moines; Anthony M. Critelli, District Court
Judge, Des Moines; Robert M. Fassler, Attorney, Cedar Rapids; Leroy M. Goldblatt,
District Associate Judge, Sioux City; Christine A. Hansen, Attorney, Des Moines;
Maynard Hayden, District Court Judge, Indianola; David A. Hirsch, Attorney,
Burlington; Francis C. Hoyt, Jr., State Appellate Defender, Des Moines; John Edwin
Landess, Attorney, Des Moines; Thomas D. McGrane, Attorney, Des Moines; T.
James McDonough, Attorney, Des Moines; Theodore H. Miller, District Court Judge,
Des Moines; Richard D. Morr, District Court Judge, Chariton; Alan L. Pearson,
District Associate Judge, Dubuque; William F. Raisch, Attorney, Des Moines; Dick R.
Schlegel, District Court Judge, Ottumwa; Donald G. Senneff, Attorney, Clinton; James
C. Smith, District Court Judge, Carroll; Keith E. Stapleton, Attorney, Cedar Rapids;
Richard A. Strickler, District Court Judge, Des Moines; and Emil Trott, Jr., Research
Director, Iowa Supreme Court, Des Moines. News Release, State Judicial Nominating
Commission, List of Candidates for Vacancy on the Iowa Court of Appeals, TwentyOne Candidates (n.d.) (on file with authors).
In addition to Schlegel, the nominees were John Edwin Landess and Richard A.
Strickler.
Letter from Clay LeGrand, Chairman, State Judicial Nominating
Committee, to Robert D. Ray, Governor, State of Iowa, & W.W. Reynoldson, Chief
Justice, Supreme Court of Iowa (Sept. 23, 1982) (on file with authors).
129.
See Letter from Mary Jane Odell, Secretary of State, State of Iowa, to
Clay LeGrand, Chairperson, State Judicial Nominating Commission (Feb. 15, 1983)
(on file with authors).
130.
Ken Fuson, 3 Women Eye Appeals Court, DES MOINES REG., Mar. 30,
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Branstad appointed Fifth Judicial District Judge Maynard J.V. Hayden to
fill the vacancy.131
VI. THE EXPANSION OF THE IOWA COURT OF APPEALS
The 1983 legislature increased the size of the court by one judge.132
The increase to six judges allowed the court to hear and submit cases in
three-judge panels.133 Additionally, the legislature amended a provision
that required the nominating commission to nominate five candidates for
every opening instead of three.134 One of the purposes of this change was
to provide the governor with a larger, more varied pool of candidates from
which to make an appointment.135 Representative Minnette Doderer136 and
1983, at 7M.
131.
Hayden Sworn in for Appeals Court, DES MOINES REG., May 25, 1983, at
7M. Fifteen applied for the vacancy:
Cameron B. Arnold, District Associate Court Judge, Spirit Lake[;] James W.
Brown, District Court Judge, Osceola[;] Anthony M. Critelli, District Court
Judge, Des Moines[;] Charles S. Crook III, Attorney, Des Moines[;] Forest E.
Eastman, District Court Judge, Cedar Falls[;] Patricia Fetzer, Attorney—
Visiting Associate Professor of Law, Cedar Rapids[;] Willie Glanton,
Attorney, Des Moines[;] Joseph L. Hanson, Attorney—Judicial Magistrate,
Emmetsburg[;] M.J.V. Hayden, Chief Judge, Fifth Judicial District,
Indianola[;] Mary G. Hellweg, Attorney, Altoona[;] R. Steven Johnson,
Attorney—Judicial Magistrate, Newton[;] John E. Landess, Attorney, Des
Moines[;] Robert R. Rydell, Attorney, Des Moines[;] Richard A. Strickler,
District Court Judge, Des Moines[;] Emil Trott, Jr., Research Director, Iowa
Supreme Court, Des Moines.
News Release, List of Candidates for Vacancy on the Iowa Court of Appeals, Fifteen
Candidates (n.d.) (on file with authors); see also Fuson, supra note 130. In addition to
Hayden, the nominees by the State Judicial Nominating Commission were James W.
Brown and Patricia Nassit Fetzer. Peter Racher, 3 Nominated for Spot on Iowa
Appeals Court, DES MOINES REG., April 5, 1983, at 6M; Press Release, Supreme Court
of Iowa, Three Nominees Selected for the Vacancy on the Iowa Court of Appeals
(Apr. 4, 1983) (on file with authors).
132.
See 1983 Iowa Acts 613 (codified at IOWA CODE § 602.5102(1) (1985))
(replacing five judges with six in the code).
133.
See id. (codified at IOWA CODE § 602.5102(1) (1985), codified as
amended at IOWA CODE § 602.5102(1) (2011)) (“The court of appeals may be divided
into divisions of three or more . . . .”).
134.
1983 Iowa Acts 456.
135.
See Peter Racher, Law Changes Nomination Process for Appeals Court,
DES MOINES REG., May 24, 1983, at 3A. In 2007, the legislature reduced the number of
nominees back to three. 2007 Iowa Acts 263 (codified at IOWA CODE § 46.14A (2011)).
136.
See generally H.R. RES. 123, IOWA LEGISLATURE, http://search
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several other women in the legislature were instrumental in the passage of
this legislation, as they felt the change would give women a better chance
of being nominated.137 The proposal was opposed because it was feared by
some that increasing the number of nominees would allow less-qualified
applicants to slip through to the governor, thus potentially allowing more
politics into the process.138 In support of the change, Chief Judge Oxberger
commented, “‘I think it helps minorities and women. It’ll encourage them
to put their names in.’”139 He also believed “the change [would] give more
‘clout’ to the governor.”140 For example, “Five nominees, rather than
three, [would] give the governor more discretion in making judicial
appointments . . . and it [would] better distribute control over the selection
process between the commission and the governor,” Chief Judge Oxberger
said.141
In August of 1983, Governor Branstad appointed the Author,
Rosemary Shaw Sackett, an attorney from Spencer, to fill the new
position.142 In October, the court began hearing and deciding cases in
.legis.state.ia.us/nxt/gateway.dll/legarch/78ga-archive/hr/00100/hr00123/current.html?fn
=document-frame.htm$f=templates$3.0 (heralding the achievements and wonderful
work Representative Doderer completed during her time in the Iowa Legislature).
137.
See Racher, supra note 135.
138.
See id.
139.
Id.
140.
Id.
141.
Id.
142.
Dewey Knudson, Lawyer from Spencer Named Appeals Judge, DES
MOINES REG., Aug. 12, 1983, at 1M. Seventeen applied for the new position:
James W. Brown, District Court Judge, Osceola[;] Anthony M. Critelli,
District Court Judge, Des Moines[;] Forest E. Eastman, District Court Judge,
Cedar Falls[;] Patricia N. Fetzer, Attorney-Visiting Associate Professor, Cedar
Rapids[;] Joseph L. Hanson, Attorney-Judicial Magistrate, Emmetsburg[;]
Mary G. Hellweg, Attorney, Altoona[;] August F. Honsell, Jr., District Court
Judge, Cedar Rapids[;] Johne E. Landess, Attorney, Des Moines[;] Gene L.
Needles, District Court Judge, Des Moines[;] Patrick H. Payton, Attorney, Des
Moines [;] Paul E. Pfeffer, Attorney, Clinton[;] Rosemary Shaw Sackett,
Attorney, Spencer[;] Doyle D. Sanders, Attorney, Des Moines[;] Ione G.
Shadduck, Attorney, West Des Moines[;] James C. Smith, District Court
Judge, Carroll[;] Keith E. Stapleton, Attorney, Cedar Rapids[;] Richard
Strickler, District Court Judge, Des Moines[.]
News Release, List of Candidates for Vacancy on the Iowa Court of Appeals,
Seventeen Candidates (n.d.) (on file with authors); 17 Apply for Seat on Appeals Court,
DES MOINES REG., July 10, 1983, at 2B. In addition to Sackett, the nominees were
August F. Honsell, Patricia N. Fetzer, Richard A. Strickler, and John E. Landess.
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three-judge panels but continued to circulate and conference all cases en
banc.143
VII. TEN-YEAR ANNIVERSARY
In the ensuing years, the court’s workload grew, with the number of
cases on appeal increasing by seventy-five percent.144 In 1985 alone, the
court filed a record 628 opinions, averaging a wait time of only five
months.145 Of the 4,616 rulings made by the court of appeals in its first ten
years, the supreme court overturned only 136.146
Although it was initially envisioned that the court of appeals would
handle one-third of all appeals, the court was now handling two-thirds.147
Organized to break up the logjam of appeals in the Iowa Supreme Court,
the court of appeals became “buried under a logjam of its own.”148 Chief
Judge Oxberger commented, “‘I wish we could spend more time on them
than we have. We have reached a saturation point and we don’t believe
that we can take any more than we are handling now.’”149 He suggested the
court could use three more judges, stating, “‘The treadmill is moving, but
it’s slowing down.’”150
Press Release, Supreme Court of Iowa, Five Nominees Selected for the Vacancy on the
Iowa Court of Appeals (July 14, 1983) (on file with authors); 5 Nominated for Appeals
Court, DES MOINES REG., July 15, 1983, at 4M.
143.
See 1983 Iowa Acts 613 (codified at IOWA CODE § 602.5102(4), current
version at IOWA CODE § 602.5102(4) (2011)) (allowing the court of appeals to sit in
divisions or panels of three in this manner).
144.
News Release, Iowa Court of Appeals, Iowa Court of Appeals to Host
Tenth Anniversary Ceremony (Nov. 21, 1986) (on file with authors); Santiago, supra
note 24.
145.
News Release, supra note 144; Santiago, supra note 24.
146.
Santiago, supra note 24.
147.
News Release, supra note 144; Interview with Bruce Snell, Jr., supra note
88 (“There was constant discussion: of the numbers and the amount of work, and who
was doing who’s work, too. [laughs] The court of appeals had a big load but the
supreme court felt that’s the way it’s supposed to be. The numbers were constantly
looked at to see what is an appropriate number of cases each court of appeals judge
could handle adequately without sacrificing quality and just having a rush to judgment.
We were always constantly aware of that and so was the supreme court.”).
148.
Santiago, supra note 24.
149.
Id.
150.
Id.
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VIII. TRANSITIONS
In 1987, Judge Bruce Snell Jr. joined the supreme court,151 and
Governor Branstad appointed Second Judicial District Judge Albert L.
Habhab in his place.152 In March 1994, Chief Judge Oxberger retired153
with plans to sail for the Caribbean.154 Second Judicial District Judge Mark
S. Cady replaced Oxberger on the court.155
Reaching mandatory
151.
Frank Santiago, Snell to Follow Father as Iowa Court Justice, DES
MOINES REG., Oct. 9, 1987, at 1A; Snell Appointed to Supreme Court, IOWA’S THIRD
BRANCH (Iowa Judicial Department, Des Moines, Iowa), Oct.–Nov. 1987, at 1.
152.
Fort Dodge Judge Joins Iowa Court of Appeals, DES MOINES REG., Jan.
9, 1988, at 2A; Habhab Named to Court of Appeals, IOWA’S THIRD BRANCH, (Iowa
Judicial Department, Des Moines, Iowa) Nov.–Dec. 1987, at 2; New Appointee, DES
MOINES REG., Dec. 19, 1987, at 13A. Fourteen applied for the vacancy:
Robert Bates, District Court Judge, Washington[;] James W. Brown, District
Court Judge, Osceola[;] Richard M. Calkins, Dean and Professor of Drake
Law School, Des Moines[;] James C. Davis, Attorney, Des Moines[;] Albert L.
Habhab, District Court Judge, Fort Dodge[;] Charles L. Harrington, Office of
Appellate Defender, Des Moines[;] August F. Honsell, Jr., Chief Judge, Sixth
Judicial District, Cedar Rapids[;] Joseph B. Joyce, Attorney, Des Moines[;]
Gary L. McMinimee, Attorney, Carroll[;] Chris Odell, Office of Citizen
Advocate, Des Moines[;] Marie Prince-Cohen, Attorney, Muscatine[;] James
P. Rielly, District Court Judge, Oskaloosa[;] Roxann M. Ryan, Office of
Attorney General, Des Moines[;] Maynard S. Telpner, Attorney, Council
Bluffs[.]
Press Release, Supreme Court of Iowa, Candidates for Nomination for Court of
Appeals Vacancy (Nov. 10, 1987) (on file with authors); see also 14 Applicants for
Appeals Court, DES MOINES REG., Nov. 11, 1987, at 4M. In addition to Habhab, the
nominees were District Judge James W. Brown, Dean Richard M. Calkins, District
Judge August F. Honsell, Jr., and Attorney Maynard S. Telpner. Press Release,
Supreme Court of Iowa, Nominees for Court of Appeals Vacancy (Nov. 20, 1987) (on
file with authors); Five Finalists Named for Appeals Court, DES MOINES REG., Nov. 21,
1987, at 2A.
153.
Frank Santiago, Appellate Judge Plans to Retire, DES MOINES REG., Nov.
10, 1993, at 1M.
154.
Id. at 6M.
155.
Cady Named to Iowa Court, DES MOINES REG., Jan. 11, 1994, at 2M;
Letter from Terry E. Brandstad, Governor, State of Iowa, to Mark S. Cady, Second
Judicial Dist., State of Iowa (Jan. 10, 1994) (on file with authors). Twenty-one applied
for Oxberger’s seat:
Nancy Shimanek Boyd, Iowa Utilities Board, Des Moines[;] Mark S. Cady,
District Court Judge, Fort Dodge[;] Richard H. Doyle, Attorney, Des
Moines[;] George S. Eichhorn, Attorney, Des Moines[;] James C. Ellefson,
Attorney, Marshalltown[;] Linny C. Emrich, Deputy Supreme Court Clerk,
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retirement age,156 Judge Schlegel reluctantly retired in March 1994.157
Third Judicial District Judge Terry L. Huitink filled the vacancy.158
Des Moines[;] Barbara E.B. Galloway, Attorney, Des Moines[;] Arthur E.
Gamble, District Court Judge, Des Moines[;] Emmit J. George, Jr., Iowa
Utilities Board, Des Moines[;] James M. Heckmann, Attorney, Dubuque[;]
August F. Honsell, Jr., Chief Judge, 6th Judicial District, Cedar Rapids[;]
Terry L. Huitink, District Court Judge, Ireton[;] Joni L. Keith, Attorney,
Ottumwa[;] Richard P. Moore, Attorney, Cedar Rapids[;] Kathy P. Ryman,
Attorney, Des Moines[;] Annette J. Scieszinski, Attorney, Albia[;] Michael J.
Streit, District Court Judge, Chariton[;] Gayle Nelson Vogel, Attorney,
Knoxville[;] Judith A. Whetstine, Attorney, Cedar Rapids[;] J. Patrick White,
Attorney, Iowa City[;] and Richard N. Winders, Attorney, Des Moines.
Press Release, Supreme Court of Iowa, Candidates for Nomination for Iowa Court of
Appeals Vacancy (Dec. 3, 1993) (on file with authors); see also 21 Seek Iowa Court of
Appeals Post, DES MOINES REG., Dec. 7, 1993, at 2M. In addition to Cady, the
nominees were District Judges Arthur E. Gamble, August F. Honsell, Terry L.
Huitink, and Michael J. Streit. Press Release, Supreme Court of Iowa, Nominees for
Iowa Court of Appeals Vacancy (Dec. 14, 1993) (on file with authors); Appeals Court
Field Narrowed to 5, DES MOINES REG., Dec. 15, 1993, at 5M; Frank Santiago, Appeals
Court May Get New Look, DES MOINES REG., Jan. 3, 1994, at 7A.
156.
See IOWA CODE § 602.1610(1)(b) (2011) (setting mandatory retirement
age as seventy-two for supreme court justices, judges of the court of appeals, and
district court judges). The 1990 legislature approved a bill that allowed retired and
senior judges from the district court to volunteer temporarily on the court of appeals.
1990 Iowa Acts 887 (codified at IOWA CODE §§ 602.1612, .9206 (1991), current version
at IOWA CODE §§ 602.1612,.9206 (2011)). Before that time, only former court of
appeals judges or supreme court justices could qualify for assignment of temporary
judicial duties on the court of appeals. See 1990 Iowa Acts 887 (deleting the provision
that limited judges to courts at or below their current level before retirement).
157.
Letter from Elaine Baxter, Sec’y of State, State of Iowa, to David Harris,
Chairperson, State Nominating Comm’n (Nov. 23, 1993) (on file with authors); News
Release, Supreme Court of Iowa (Nov. 29, 1993) (on file with authors); Appeals Court
Judge Announces Retirement, DES MOINES REG., Nov. 30, 1993, at 3M.
158.
Letter from Terry E. Branstad, Governor, State of Iowa, to Terry L.
Huitink, Court Administrator’s Office, State of Iowa (Feb. 16, 1994) (on file with
authors); Frank Santiago, Branstad Picks Huitink for Appeals Court Post, DES MOINES
REG., Feb. 17, 1994, at 6M. The twenty-five applicants for Schlegel’s seat were:
Nancy Shimanek Boyd, Iowa Utilities Board, Des Moines[;] Bruce Butler,
Attorney, Des Moines[;] George Cosson, Attorney, Des Moines[;] Richard H.
Doyle, Attorney, Des Moines[;] George S. Eichhorn, Attorney, Des Moines[;]
James C. Ellefson, Attorney, Marshalltown[;] Linny C. Emrich, Deputy
Supreme Court Clerk, Des Moines[;] Barbara E.B. Galloway, Attorney, Des
Moines[;] Arthur E. Gamble, District Court Judge, Des Moines[;] Emmit J.
George, Jr., Iowa Utilities Board, Des Moines[;] August F. Honsell, Jr., Chief
Judge, 6th Judicial District, Cedar Rapids[;] Terry L. Huitink, District Court
Judge, Ireton[;] Joni L. Keith, Attorney, Ottumwa[;] Nelda B. Mickle,
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Upon Chief Judge Oxberger’s retirement, the court of appeals elected
Judge Donielson—the last remaining original member of the court—as the
new chief judge.159 Despite battling cancer, Chief Judge Donielson
remained on the bench, stating, “‘But, I just couldn’t turn away. The work
is important to me. It has been my life.’”160
In March 1996, after twenty-two years of service to the Iowa judiciary,
Judge Hayden retired.161 Fifth Judicial District Judge Michael J. Streit
succeeded Judge Hayden.162
Attorney, Des Moines[;] Richard P. Moore, Attorney, Cedar Rapids[;] Jill S.
Rolek, Attorney, Des Moines[;] Roxann Ryan, Attorney, Des Moines[;] Kathy
P. Ryman, Attorney, Des Moines[;] Annette J. Scieszinski, Attorney, Albia[;]
Michael J. Streit, District Court Judge, Charlton[;] Richard Vander Mey,
Attorney, Nevada[;] Gayle Nelson Vogel, Attorney, Knoxville[;] Judith A.
Whetstine, Attorney, Cedar Rapids[;] J. Patrick White, Attorney, Iowa City[;]
Richard N. Winders, Attorney, Des Moines[.]
Press Release, Supreme Court of Iowa, Candidates for Nomination for Iowa Court of
Appeals Vacancy (Jan. 10, 1994) (on file with authors); see also Cady Named to Iowa
Court, DES MOINES REG., Jan. 11, 1994, at 2M. In addition to Huitink, the nominees
were Arthur E. Gamble, Roxann Ryan, Michael J. Streit, and Gayle Nelson Vogel.
Letter from David Harris, Chairperson, State Judicial Nominating Comm’n, to Terry
E. Branstad, Governor, State of Iowa & Arthur A. McGiverin, Chief Justice, Supreme
Court of Iowa (Jan. 18, 1994) (on file with authors); Nominees to Court of Appeals,
DES MOINES REG., Jan. 19, 1994, at 2M.
159.
Donielson is Named New Court of Appeals Chief, DES MOINES REG.,
Mar. 17, 1994, at 6M; Frank Santiago, Professional Success Comes at a Time of
Personal Pain, DES MOINES REG., Apr. 4, 1994, at 9A.
160.
Santiago, supra note 159.
161.
See Matter of the Retirement of Judge Maynard J.V. Hayden, 557
N.W.2d XLIX, LII (1996); News Release, Supreme Court of Iowa (Nov. 22, 1995) (on
file with authors); Letter from Maynard J.V. Hayden, Judge, Iowa Court of Appeals, to
Terry E. Branstad, Governor, State of Iowa (Nov. 13, 1995) (on file with authors).
162.
Streit Tapped for Appeals Court, DES MOINES REG., Jan. 30, 1996, at 2M;
Letter from Terry E. Branstad, Governor, State of Iowa, to Michael J. Streit, Judge,
Fifth Judicial Dist. (Jan. 29, 1996) (on file with authors). Twenty-two applied for the
post:
John W. Bernau, Attorney, Manchester[;] Nancy Shimanek Boyd, Iowa
Utilities Board, Des Moines[;] Randal B. Caldwell, Attorney, Newton[;]
George Cosson, Attorney, Des Moines[;] Robert J. Dull, District Associate
Judge, Le[ ]Mars[;] George S. Eichhorn, Attorney, Stratford[;] James C.
Ellefson, Attorney, Ma[r]shalltown[;] Linny C. Emrich, Assistant Attorney
General, Des Moines[;] August F. Honsell, District Court Judge, Cedar
Rapids[;] Thomas A. Lawler, Attorney, Parkersburg[;] David L. Leitner,
Attorney, Johnston[;] Robert E. Mahan, District Court Judge, Waterloo[;]
John C. Miller, District Court Judge, Burlington[;] William W. Mulder,
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Chief Judge Donielson died of cancer in January 1996.163 Gayle
Nelson Vogel, an attorney from Knoxville, filled the vacancy after her
appointment in April 1996.164
The court elected Judge Sackett to serve as chief judge for the
remainder of Judge Donielson’s term165 and, in January 1997, the court
Attorney, Des Moines[;] Kevin A. Parker, Attorney, Indianola[;] Roxann M.
Ryan, Assistant Attorney General, Des Moines[;] Mark C. Smith, Attorney,
Des Moines[;] David J. Stein, Sr., Attorney, Milford[;] Michael J. Streit,
District Court Judge, Chariton[;] Gayle Nelson Vogel, Attorney, Knoxville[;]
J. Patrick White, Attorney, Iowa City[;] Linda Newman Woito, Attorney, Iowa
City[.]
Press Release, Supreme Court of Iowa, Candidates for Nomination for Iowa Court of
Appeals Vacancy (Dec. 27, 1995) (on file with authors); see also 22 Hope to Fill Judicial
Post, DES MOINES REG., Dec. 30, 1995, at 6M. In addition to Streit, the nominees were
Judges August F. Honsell, Robert E. Mahan, John C. Miller, and attorney Gayle
Nelson Vogel. Press Release, Supreme Court of Iowa, Nominees for Court of Appeals
Vacancy (Jan. 5, 1996) (on file with authors); Five Nominated for Appeals Post, DES
MOINES REG., Jan. 6, 1996, at 2M.
163.
Frank Santiago, Judge Allen Donielson Dies, DES MOINES REG., Jan. 29,
1996, at 4M.
164.
Letter from Terry Branstad, Governor, State of Iowa, to Gayle Nelson
Vogel, Attorney, Johnson, Lane & Vogel, (Apr. 26, 1996) (on file with authors);
Knoxville Attorney Named to Appeals Court, DES MOINES REG., Apr. 27, 1996, at 2M.
Fifteen applied for the vacancy:
Nancy Shimanek Boyd, Iowa Utilities Board, Urbandale[;] Robert J. Dull,
District Associate Judge, Le[ ]Mars[;] George S. Eichhorn, Attorney,
Stratford[;] James C. Ellefson, Attorney, Marshalltown[;] Emmit J. George,
Jr., Iowa Utilities Board, West Des Moines[;] Thomas A. Lawler, Attorney,
Parkersburg[;] David J. Leitner, Attorney, Johnston[;] Robert E. Mahan,
District Court Judge, Waterloo[;] John C. Miller, District Court Judge,
Burlington[;] Roxann M. Ryan, Assistant Attorney General, Des Moines[;]
Mark C. Smith, Attorney, West Des Moines[;] Anuradha Vaitheswaran,
Assistant Attorney General, Des Moines[;] Gayle Nelson Vogel, Attorney,
Knoxville[;] J. Patrick White, Attorney, Iowa City[;] Linda Newman Woito,
Attorney, Iowa City[.]
Press Release, Supreme Court of Iowa, Candidates for Nomination for Iowa Court of
Appeals Vacancy (Mar. 18, 1996) (on file with authors); see also 15 Vying for Appeals
Court Appointment, DES MOINES REG., Mar. 20, 1996, at 2M. In addition to Vogel, the
other nominees were Judges Robert E. Mahan and John C. Miller, Assistant Iowa
Attorney General Anuradha Vaitheswaran, and attorney J. Patrick White. Press
Release, Supreme Court of Iowa, Nominees for Iowa Court of Appeals Vacancy (Mar.
29, 1996) (on file with authors); 5 Nominees Chosen for Appeals Court, DES MOINES
REG., Mar. 30, 1996, at 7M.
165.
See Frank Santiago, Sackett New Appeals Court Chief, DES MOINES REG.,
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elected Judge Habhab as chief judge.166 Chief Judge Habhab retired on
September 5, 1997, one day before he reached the mandatory retirement
age of seventy-two.167 Governor Branstad appointed First Judicial District
Judge Robert E. Mahan to replace Judge Habhab on the court.168 Judge
Cady was then elected to serve as chief judge following Judge Habhab’s
retirement.169
In September 1998, Chief Judge Cady was appointed to the supreme
court.170 Governor Branstad appointed Sixth Judicial District Judge Van
D. Zimmer to fill the vacancy.171 In January 1999, the court once again
June 19, 1996, at 2M.
166.
Frank Santiago, Habhab to Head Court of Appeals, DES MOINES REG.,
Jan. 14, 1997, at 6M.
167.
Habhab to Leave Bench, DES MOINES REG., May 21, 1997, at 4M; see also
News Release, Supreme Court of Iowa (May 20, 1997) (on file with authors).
168.
Mahan to Join Appeals Court, DES MOINES REG., Aug. 2, 1997, at 6M.
Twenty candidates applied for the vacancy:
John D. Ackerman, Attorney, Sioux City[;] George S. Eichhorn, Attorney,
Stratford[;] Larry J. Eisenhauer, District Court Judge, Ankeny[;] David M.
Erickson, Attorney, Des Moines[;] Peter J. Grady, Attorney, Marshalltown[;]
Craig F. Graziano, Attorney, Des Moines[;] James E. Kelley, District Court
Judge, Bettendorf[;] Thomas A. Lawler, Attorney, Parkersburg[;] David L.
Leitner, Attorney, Johnston[;] Robert E. Mahan, District Court Judge,
Waterloo[;] Gary L. McMinimee, District Court Judge, Carroll[;] John C.
Miller, District Court Judge, Burlington[;] Martin Ozga, Attorney,
Woodward[;] L. Vern Robinson, District Court Judge, Iowa City[;] Steven T.
Roth, Attorney, Storm Lake[;] Mark C. Smith, Attorney, Des Moines[;]
Wallace L. Taylor, Attorney, Cedar Rapids[;] Anuradha Vaitheswaran,
Assistant Attorney General, Des Moines[;] J. Patrick White, Attorney, Iowa
City[;] Linda Newman Woito, Attorney, Iowa City[.]
Press Release, Supreme Court of Iowa, Candidates for Nomination for Iowa Court of
Appeals Vacancy (July 2, 1997) (on file with authors); see also 20 Applicants Vie for
Appeals Court Seat, DES MOINES REG., July 3, 1997, at 4M. The nominees selected
were District Court Judges Larry J. Eisenhauer, Robert E. Mahan, Gary L.
McMinimee, L. Vern Robinson, and attorney Thomas A. Lawler. Press Release,
Supreme Court of Iowa, Nominees for Iowa Court of Appeals Vacancy (July 11, 1997)
(on file with authors); Panel Picks Four Judges, Lawyer as Finalists for Appeals Court,
DES MOINES REG., July 12, 1997, at 2M.
169.
Frank Santiago, Cady New Appeals Court Chief, DES MOINES REG., Oct.
28, 1997, at 2M.
170.
Frank Santiago, Judge Cady Appointed to Iowa Supreme Court, DES
MOINES REG., Sept. 19, 1998, at 3M.
171.
Letter from Terry E. Branstad, Governor, State of Iowa, to Van D.
Zimmer, Dist. Court Judge, State of Iowa (Dec. 11, 1998) (on file with authors); Press
Release, Office of the Governor, Zimmer Appointed to Court of Appeals (Dec. 10,
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elected Judge Sackett as the new chief judge,172 and a Des Moines Register
editorial took the occasion to recognize Chief Judge Sackett for “the path
she has blazed for women in the law as Iowa’s longest-tenured female
appellate judge.”173
IX. SIX JUDGES TO NINE
After operating for twenty years, the court of appeals had become
overwhelmed with work.174 In order to process the appellate caseload, the
nine-member supreme court retained cases that should have been
transferred to the court of appeals, and it also sat in panels of five to
consider an increased number of cases.175 In 1998, legislation to restructure
the appellate courts was introduced.176 By expanding the court of appeals
from six members to nine,177 the plan permitted shifting more of the
appellate load to a larger court of appeals, which could process a greater
1998) (on file with authors); see also Frank Santiago, New Court of Appeals Judge is
Busy, DES MOINES REG., Dec. 22, 1998, at 8M. Fifteen applied for the vacancy:
Carl D. Baker, District Court Judge, Marshalltown[;] Clair R. Cramer, Chief
Deputy Workers’ Compensation Commission, West Des Moines[;] Michael B.
Devine, Attorney, Des Moines[;] George S. Eichhorn, Attorney, Stratford[;]
Larry J. Eisenhauer, District Court Judge, Ankeny[;] David M. Erickson,
Attorney, Des Moines[;] Craig Graziano, Attorney, Des Moines[;] Thomas A.
Lawler, Attorney, Parkersburg[;] Gary L. McMinimee, District Court Judge,
Carroll[;] Michael R. Mullins, Attorney, Washington[;] Gregory W. Neumeyer,
Attorney, Cedar Rapids[;] Linda R. Reade, District Court Judge, West Des
Moines[;] Mark Schlenker, Attorney, Indianola[;] Frank C. Tenuta, Attorney,
Sioux City[;] Van D. Zimmer, District Court Judge, Vinton.
Press Release, Iowa Judicial Branch, Candidates for Nomination for Iowa Court of
Appeals Vacancy (Nov. 3, 1998) (on file with authors); see also Fifteen Seek Position on
Appeals Court, DES MOINES REG., Nov. 4, 1998, at 6M. In addition to Zimmer, the
nominees were District Judges Carl D. Baker, Gary L. McMinimee, Linda R. Reade,
and attorney Michael R. Mullins. Press Release, Iowa Judicial Branch, Nominees for
Iowa Court of Appeals Vacancy (Nov. 12, 1998) (on file with authors).
172.
Press Release, Iowa Judicial Branch, Sackett Elected Chief Judge of Iowa
Court of Appeals (Jan. 21, 1999) (on file with authors).
173.
Editorial, Recognition for Judge Sackett, DES MOINES REG., Jan. 27, 1999,
at 8A.
174.
See Editorial, Assembly-Line Justice?, DES MOINES REG., Sept. 12, 1997,
at 8A.
175.
Memorandum from the Iowa Judicial Branch on House File 2471 (Mar.
16, 1998) (on file with authors).
176.
H.F. 2471, 77th Gen. Assemb., Reg. Sess. (Iowa 1998).
177.
Id.
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number of cases.178 By reducing the size of the supreme court from nine to
an optimally-sized seven-member state supreme court,179 the plan enabled
the supreme court to sit en banc and limit its consideration to those cases
of “substantial precedential or public policy implication.”180 The legislation
was approved and took effect July 1, 1999.181
In July 1999, the State Judicial Nominating Commission received
fifty-six applications for the three new court of appeals positions,182 and it
178.
Memorandum, supra note 175; Editorial, supra note 174 (“[I]t seems
apparent that the Iowa Supreme Court could defer many more cases to the Court of
Appeals. Although that would require enlarging that six-judge court, which is already
overwhelmed with work, it would be well worth the investment.”). As early as 1991,
lawmakers were asked to provide three new judges for the court. See Frank Santiago,
Judge Isn’t Counting on Larger Court, DES MOINES REG., Jan. 21, 1992 at 6M.
179.
See Iowa H.F. 2471.
180.
See Memorandum, supra note 175.
181.
1998 Iowa Acts 509 (amending the sections to provide for a sevenmember supreme court—transition by attrition—and a nine-member court of appeals).
182.
Press Release, Supreme Court of Iowa, Applicants for Iowa Court of
Appeals Judgeships (July 7, 1999) (on file with authors). The fifty-six applicants were:
Rick Autry, Attorney, Urbandale[;] Carl D. Baker, District Court Judge,
Marshalltown[;] Richard J. Bennett, Assistant Attorney General, Des
Moines[;] Richard K. Betterton, Attorney, Cedar Falls[;] Thomas Bice,
Attorney, Fort Dodge[;] Thomas N. Bower, District Court Judge, Waterloo[;]
Inga Bumbary-Langston, Executive Assistant U.S. Attorney, Des Moines[;]
Dennis Cohen, Assistant Public Defender, Iowa City[;] Frank Comito,
Attorney, Carroll[;] Richard H. Doyle, Attorney, Des Moines[;] Thomas J.
Duff, Attorney, Des Moines[;] Robert J. Dull, District Associate Judge,
Le[ ]Mars[;] Robert K. Du Puy, Attorney, West Des Moines[;] George S.
Eichhorn, Attorney, Stratford[;] Larry J. Eisenhauer, District Court Judge,
Ankeny[;] David M. Erickson, Attorney, Des Moines[;] Christopher J. Farwell,
Attorney, Clinton[;] Thomas J. Fisher, Jr., Attorney, Des Moines[;] Susan J.
Frye, Attorney, Iowa City[;] Ahmet Gonlubol, Assistant Public Defender,
Cedar Rapids[;] Thomas E. Gustafson, Attorney, Denison[;] Charles L.
Harrington, Attorney, Des Moines[;] Daryl Hecht, Attorney, Sioux City[;]
Marion E. James, Attorney, Creston[;] Craig Kelinson, Assistant Attorney
General, Des Moines[;] Bruce Kempkes, Assistant Attorney General, Des
Moines[;] Charles J. Krogmeier, Attorney, Ankeny[;] Eric W. Lam, Attorney,
Cedar Rapids[;] Thomas A. Lawler, Attorney, Parkersburg[;] John D. Lloyd,
Attorney, Osceola[;] Edward M. Mansfield, Attorney, Des Moines[;]
Lawrence P. McLellan, Attorney, Des Moines[;] Gary L. McMinimee, District
Court Judge, Carroll[;] John P. Messina, Assistant Appellate Defender, Des
Moines[;] John C. Miller, District Court Judge, Burlington[;] Thomas W. Mott,
District Associate Judge, Newton[;] Michael R. Mullins, Attorney,
Washington[;] Jeffrey A. Neary, Attorney, Le[ ]Mars[;] Judith Mack
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selected fifteen applicants for nomination to the governor.183 Governor
Tom Vilsack, the first Democratic governor to name judges to the court of
appeals,184 appointed Eighth Judicial District Court Judge John C. Miller,
Sioux City attorney Daryl L. Hecht, and Assistant Iowa Attorney General
Anuradha Vaitheswaran.185
O’Donohoe, Attorney, New Hampton[;] Elizabeth R. Posant, Attorney,
Denver, CO[;] Daniel Rathjen, Attorney, Tama[;] Allan M. Richards,
Attorney, Tama[;] James M. Richardson, District Court Judge, Audubon[;]
Linda J. Robbins, Attorney, Cedar Rapids[;] Robert G. Schlegel, Attorney,
Washington[;] Mark Schlenker, Attorney, Indianola[;] James D. Scott, District
Court Judge, Orange City[;] Angela C. Simon, Attorney, Dubuque[;] Mark C.
Smith, Assistant Public Defender, Des Moines[;] Greg W. Steensland, Public
Defender, Council Bluffs[;] Phil Tabor, County Attorney, Maquoketa[;] Frank
C. Tenuta, Attorney, Sioux City[;] Anuradha Vaitheswaran, Attorney, Iowa
Securities Bureau, Des Moines[;] Michael C. Vance, Attorney, Mount
Pleasant[;] James A. Weaver, District Associate Judge, Muscatine[;] J. Patrick
White, Attorney, Iowa City[.]
Id.; see also Frank Santiago, 56 Apply for Seats on Court of Appeals, DES MOINES
REG., July 8, 1999, at 5M.
183.
Press Release, Supreme Court of Iowa, Nominees for Iowa Court of
Appeals Vacancy: Correction (July 16, 1999) (on file with authors). The nominees
were corrected to include:
Carl D. Baker, District Court Judge, Marshalltown[;] Thomas Bice, Attorney,
Fort Dodge[;] Inga Bumbary-Langston, Executive Assistant U.S. Attorney,
Des Moines[;] Larry J. Eisenhauer, District Court Judge, Ankeny[;] David M.
Erickson, Attorney, Des Moines[;] Daryl Hecht, Attorney, Sioux City[;] Eric
W. Lam, Attorney, Cedar Rapids[;] John D. Lloyd, [Attorney,] Osceola[;]
Edward M. Mansfield, Attorney, Des Moines[;] Gary L. McMinimee, District
Court Judge, Carroll[;] John P. Messina, Assistant Appellate Defender, Des
Moines[;] John C. Miller, District Court Judge, Burlington[;] James D. Scott,
Attorney, Orange City[;] Anuradha Vaitheswaran, Attorney, Des Moines[;]
James A. Weaver, District Associate Judge, Muscatine.
Id.; see also 15 Are in the Running for Iowa Appeals Court, DES MOINES REG., July 18,
1999, at 8B.
184.
See Iowa’s Governors, DES MOINES REG. (Jan. 10, 2008),
http://www.desmoinesregister.com/article/99999999/NEWS10/50103007/Iowa-sGovernors (stating that Robert D. Ray (1969–1983) and Terry Branstad (1983–1999)
were both Republicans).
185.
Press Release, Office of the Governor, State of Iowa, Vilsack Announces
Appointments to Iowa Court of Appeals (Aug. 16, 1999) (on file with authors);
Governor Appoints Three Appeals Judges, DES MOINES REG., Aug. 17, 1999, at 3M;
Three Judges Will Be Sworn In, DES MOINES REG., Sept. 6, 1999, at 3M; Hecht, Miller
and Vaitheswaran Join the Iowa Court of Appeals, IOWA BENCH PRESS (State Court
Adm’r Office, Iowa Judicial Branch, Des Moines, Iowa), Sept.–Oct. 1999, at 10–11.
Their order of precedence on the court was: Miller, Hecht, and Vaitheswaran. See
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31
X. FURTHER TRANSITIONS
In 2001, Judge Streit was appointed to the supreme court,186 and Fifth
Judicial District Judge Larry J. Eisenhauer filled the vacancy.187 Also in
2001, the court marked its twenty-fifth anniversary with a celebration on
November 1.188 Former Chief Judge Allbee shared his memories and
experiences as a member of the court.189
IOWA CODE § 602.5105(4) (1999); see also Three Judges Will Be Sworn In, DES MOINES
REG., Sept. 6, 1999, at 3M.
186.
Jonathan Roos, High Court Appointee is Streit, DES MOINES REG., July
19, 2001, at 1B; Streit Appointed to Supreme Court, IOWA BENCH PRESS (State Court
Adm’r Office, Iowa Judicial Branch, Des Moines, Iowa), July–Aug. 2001, at 1.
187.
Letter from Thomas J. Vilsack, Governor, State of Iowa, to Larry J.
Eisenhauer, Fifth Judicial Dist., State of Iowa (Sept. 21, 2001) (on file with authors);
Eisenhauer Appointed to Court of Appeals, IOWA BENCH PRESS (State Court Adm’r
Office, Iowa Judicial Branch, Des Moines, Iowa), Sept.–Oct. 2001, at 16; Eisenhauer
Elevated to Court of Appeals, IOWA LAW., Oct. 2001, at 11; Press Release, Supreme
Court of Iowa, Governor Vilsack to Swear in Judge Eisenhauer on October 29 (Oct.
23, 2001) (on file with authors). Twenty-five applied for the vacancy:
David Adams, Attorney, Des Moines[;] Gordon Allen, Attorney, Johnston[;]
David Baker, Attorney, Cedar Rapids[;] Richard Bennett, Attorney, Des
Moines[;] Donald Bormann, District Associate Judge, Ruthven[;] Thomas
Bower, District Court Judge, Cedar Falls[;] Anne Clark, Attorney, Norwalk[;]
Richard Doyle, Attorney, Des Moines[;] Larry Eisenhauer, District Court
Judge, Ankeny[;] Dave Erickson, Attorney, West Des Moines[;] Jeffrey
Harris, District Associate Judge, Grundy Center[;] Craig Kelinson, Attorney,
Des Moines[;] Bruce Kempkes, Attorney, Earlham[;] John Lloyd, Attorney,
Osceola[;] John Mackey, District Court Judge, Clear Lake[;] Edward
Mansfield, Attorney, Des Moines[;] Daniel Marvin, Attorney, Johnston[;]
John Messina, Attorney, Des Moines[;] William Pattinson, District Court
Judge, Ames[;] Roxann Ryan, Attorney, Des Moines[;] Carla Schemmel,
Attorney, West Des Moines[;] William Serangeli, Attorney, West Des
Moines[;] Frank Tenuta, Attorney, Sioux City[;] James Weaver, District
Associate Judge, Muscatine[;] Clint Woods, Attorney, Des Moines[.]
Press Release, Supreme Court of Iowa, Nominees for Iowa Court of Appeals Vacancy
(Aug. 15, 2001) (on file with authors); see also 25 Apply for Opening on Court, DES
MOINES REG., Aug. 17, 2001, at 3B. In addition to Eisenhauer, the nominees were
District Court Judge Thomas Bower and attorneys Craig Kelinson, Edward Mansfield,
and Roxann Ryan. Press Release, Supreme Court of Iowa, Nominees for Iowa Court
of Appeals Vacancy (Aug. 24, 2001) (on file with authors); Five Are Nominated for
Appeals Court Post, DES MOINES REG., Aug. 26, 2001, at 2B.
188.
Alison Werner Smith, Court of Appeals Plans 25th Birthday Celebration,
IOWA BENCH PRESS (State Court Adm’r Office, Iowa Judicial Branch, Des Moines,
Iowa), Sept.–Oct. 2001, at 15.
189.
See Allbee, supra note 24.
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In 2003, the court left its crowded offices at the capitol and moved
with the supreme court and state court administration into the newly
completed Judicial Branch Building at 1111 East Court Avenue in Des
Moines.190
In 2006, Governor Vilsak appointed Judge Hecht to the supreme
court191 and chose Sixth Judicial District Judge David L. Baker to replace
Judge Hecht on the court of appeals.192
Three judges departed in 2008. After only two years on the court of
appeals, Judge Baker moved to the supreme court.193 Judges Zimmer194
190.
Press Release, Supreme Court of Iowa, Notice: New Address for
Appellate Courts (Mar. 21, 2003) (on file with authors).
191.
Jeff Eckhoff, Appeals Judge Gets Supreme Court Spot, DES MOINES
REG., Aug. 2, 2006, at 7B; Court of Appeals Judge Daryl Hecht Appointed to Iowa
Supreme Court, IOWA BENCH PRESS (State Court Adm’r Office, Iowa Judicial Branch,
Des Moines, Iowa), July–Aug. 2006, at 2; News Release, Iowa Judicial Branch,
Governor Appoints Appeals Judge Daryl Hecht to Iowa Supreme Court (Aug. 1, 2006)
(on file with author).
192.
Governor Fills Vacancy on Court of Appeals, DES MOINES REG., Nov. 28,
2006, at 2B; David Baker Joins the Court of Appeals, IOWA BENCH PRESS (State Court
Adm’r Office, Iowa Judicial Branch, Des Moines, Iowa), Jan. 2007, at 5; Press Release,
Office of the Governor, State of Iowa, Vilsack, Pederson Announce Appointments to
District Courts, Court of Appeals (Nov. 27, 2006) (on file with author). Twenty
applied for the position:
David Adams, Assistant Appellate Defender, Des Moines; David Baker,
District Court Judge, Cedar Rapids; Thomas Bower, District Court Judge, Cedar Falls;
Susan Christensen, Assistant Shelby County Attorney, Harlan; David Danilson,
District Court Judge, Boone; George Davison, Jr., Attorney, Des Moines; Richard
Doyle, Attorney, Des Moines; Sharon Soorholtz Greer, Attorney, Marshalltown;
Andrew Howie, Attorney, West Des Moines; Bruce Kempkes, Assistant Attorney
General, Earlham; Amy M. Kilpatrick, Judicial Law Clerk, Cedar Rapids; Martha
Mertz, District Court Judge, Columbia; Gary McKenrick, District Court Judge, Low
Moor; Suellen Overton, Attorney, Council Bluffs; William Raisch, Attorney,
Urbandale; Alexander Rhoads, Attorney, Dallas County; David Sallen, Public
Defender, Fort Madison; Andrew Smith, Attorney, Pomeroy; Mary Tabor, Assistant
Attorney General, Des Moines; and Frank Tenuta, Attorney, Sioux City. News
Release, Iowa Judicial Branch, Twenty Iowans Apply for Court of Appeals Vacancy
(Oct. 23, 2006) (on file with author); see also 20 Iowans Vie for Vacancy Left on
Appeals Court, DES MOINES REG., Oct. 24, 2006, at 4B.
In addition to Baker, the nominees were District Court Judge Thomas Bower,
George Davison Jr., Richard Doyle, and Bruce Kempkes. Commission Lists Finalists
to Fill Seat on Appeals Court, DES MOINES REG., Nov. 5, 2006, at 3B; News Release,
Iowa Judicial Branch, Nominees for Iowa Court of Appeals (Nov. 3, 2006) (on file with
author).
193.
Press Release, Office of the Governor, Governor Culver Appoints Judge
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History of the Iowa Court of Appeals
33
and Huitink retired.195 Democratic Governor Chet Culver appointed Sixth
Judicial District Judge Amanda Potterfield to take Judge Baker’s place on
the court of appeals.196 One month later in August, Governor Culver
appointed the Author, Des Moines attorney Richard H. Doyle to replace
David Baker to Iowa Supreme Court (Apr. 4, 2008) (on file with authors); News
Release, Iowa Judicial Branch, Governor Appoints Appeals Judge Baker to Iowa
Supreme Court (Apr. 4, 2008) (on file with authors); Molly Hottle, Baker Appointed to
Fill Supreme Court Slot, DES MOINES REG., Apr. 5, 2008, at 3B.
194.
News Release, Iowa Judicial Branch, Iowa Court of Appeals Judge Van
Zimmer to Retire (May 27, 2008) (on file with authors).
195.
News Release, Iowa Judicial Branch, Iowa Court of Appeals Judge Terry
Huitink to Retire (Oct. 21, 2008) (on file with authors).
196.
Press Release, Office of the Governor, State of Iowa, Governor Culver
Names Amanda Potterfield to Iowa Court of Appeals, Michael Shubatt to Iowa
District Court 1a (July 2, 2008) (on file with authors); News Release, Iowa Judicial
Branch, Governor Appoints Judge Amanda Potterfield to Iowa Court of Appeals (July
3, 2008) (on file with authors); Culver Fills 2 Judicial Vacancies, DES MOINES REG.,
July 3, 2008, at 8B. Thirty-four applied for the position:
Romonda D. Belcher Ford, Prosecutor/Assistant Polk County Attorney, Des
Moines; Carolyn Jeanne Beyer, Attorney, Iowa City; Thomas Nelson Bower, District
Court Judge, Cedar Falls; Mark D. Cleve, District Court Judge, Davenport; David Ray
Danilson, District Court Judge, Boone; George F. Davison, Jr., Attorney, Des Moines;
Richard H. Doyle, Attorney, Des Moines; David M. Erickson, Attorney, West Des
Moines; Michael Evans Gabor, Attorney, Algona; Michael R. Hoffmann, Attorney,
Clive; Bruce Kempkes, Assistant Attorney General, Earlham; Mark O. Lambert,
Administrative Law Judge, Polk City; Kellyann M. Lekar, District Court Judge,
Waterloo; Edward M. Mansfield, Attorney, Des Moines; Gary D. McKenrick, District
Court Judge, Low Moor; Raymond C. Meyer, Attorney, Chariton; Michael L. Mock,
Attorney, West Des Moines; Jeffrey Andrew Neary, District Court Judge, Merrill;
Timothy O’Grady, District Court Judge, Council Bluffs; Suellen Overton, Attorney,
Council Bluffs; William J. Pattinson, District Court Judge, Ames; Ronald R. Pohlman,
Deputy Workers’ Compensation Commissioner, Earlham; Amanda Pierce Potterfield,
District Court Judge, Tiffin; Elisabeth S. Reynoldson, Assistant Iowa Attorney
General, Osceola; Kim M. Riley, District Associate Judge, Marshalltown; Karen A.
Romano, District Court Judge, Johnston; Sabra K. Rosener, Director of Government
Relations, Iowa Health Systems, Des Moines; James D. Scott, District Court Judge,
Rock Valley; Mary Ellen Tabor, Assistant Attorney General, Des Moines; Frank Cal
Tenuta, Attorney, Sioux City; Karen L. Thalacker, Attorney, Waverly; Janece
Valentine, Attorney, Fort Dodge; Jeanie Kunkle Vaudt, Assistant Attorney General,
West Des Moines; and Bruce Burton Zager, District Court Judge, Waterloo. News
Release, Iowa Judicial Branch, Thirty-four Iowans Apply for Court of Appeals (May
22, 2008) (on file with authors).
In addition to Potterfield, the nominees were Richard H. Doyle and Janece
Valentine. News Release, Iowa Judicial Branch, Nominees for Iowa Court of Appeals
(June 3, 2008) (on file with authors); Editorial, Transparency Is Key in Selection of
Judges, DES MOINES REG., June 11, 2008, at 16A.
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Judge Zimmer.197 Des Moines attorney Edward M. Mansfield succeeded
Judge Huitink.198
197.
Press Release, Office of the Governor, State of Iowa, Governor Culver
Names Richard Doyle to Iowa Court of Appeals, Paul Macek to Iowa District Court 7
(Aug. 12, 2008) (on file with authors); News Release, Iowa Judicial Branch, Governor
Appoints Richard H. Doyle to Iowa Court of Appeals (Aug. 13, 2008) (on file with
authors); Doyle Appointed to Iowa Court of Appeals, DES MOINES REG., Aug. 13,
2008, at 2B. Thirty-three applied for the position:
Romonda D. Belcher Ford, Prosecutor/Assistant Polk County Attorney, Des
Moines; Carolyn Jeanne Beyer, Attorney, Iowa City; Thomas Bice, Attorney, Fort
Dodge; Thomas Nelson Bower, District Court Judge, Cedar Falls; William L. Brauch,
Special Assistant Attorney General, Des Moines; Mark D. Cleve, District Court Judge,
Davenport; David Ray Danilson, District Court Judge, Boone; George F. Davison, Jr.,
Attorney, Des Moines; Richard H. Doyle, Attorney, Des Moines; David M. Erickson,
Attorney, West Des Moines; Michael E. Gabor, Attorney, Algona; Michael R.
Hoffmann, Attorney, Clive; Bruce Kempkes, Assistant Attorney General, Earlham;
Mark O. Lambert, Administrative Law Judge, Polk City; Edward M. Mansfield,
Attorney, Des Moines; Gary D. McKenrick, District Court Judge, Low Moor;
Raymond C. Meyer, Attorney, Chariton; Michael L. Mock, Attorney, West Des
Moines; Jeffrey A. Neary, District Court Judge, Merrill; Timothy O’Grady, District
Court Judge, Council Bluffs; William J. Pattinson, District Court Judge, Ames; Ronald
R. Pohlman, Deputy Workers’ Compensation Commissioner, Earlham; Amanda
Pierce Potterfield, District Court Judge (had not yet been appointed before the
deadline to apply), Tiffin; Elisabeth S. Reynoldson, Assistant Iowa Attorney General,
Osceola; Kim M. Riley, District Associate Judge, Marshalltown; Karen A. Romano,
District Court Judge, Johnston; James D. Scott, District Court Judge, Rock Valley;
Brenton D. Soderstrom, Attorney, West Des Moines; Mary E. Tabor, Assistant
Attorney General, Des Moines; Frank Cal Tenuta, Attorney, Sioux City; Karen L.
Thalacker, Attorney, Waverly; Janece Valentine, Attorney, Fort Dodge; and Bruce
Burton Zager, District Court Judge, Waterloo. News Release, Iowa Judicial Branch,
Thirty-three Iowans Apply for Court of Appeals (July 1, 2008) (on file with authors).
In addition to Doyle, the nominees were Mary E. Tabor and Thomas Bice.
News Release, Iowa Judicial Branch, Commission Names Nominees for Iowa Court of
Appeals (July 15, 2008) (on file with authors); Editorial, Applicant Field Shows Keen
Interest in Court, DES MOINES REG., July 28, 2008, at 10A.
198.
Press Release, Office of the Governor, State of Iowa, Governor Culver
Names Edward Mansfield to Iowa Court of Appeals (Jan. 15, 2009) (on file with
authors); Culver Names Mansfield Appeals Court Judge, DES MOINES REG., Jan. 16,
2009, at 2B. Twenty-seven applied for the vacancy:
Kerry K. Anderson, Administrative Law Judge, Urbandale; Romonda D.
Belcher Ford, Prosecutor/Assistant Polk County Attorney, Des Moines; Thomas
Nelson Bower, District Court Judge, Cedar Falls; David Ray Danilson, District Court
Judge, Boone; George F. Davison, Jr., Attorney, Des Moines; David M. Erickson,
Attorney, West Des Moines; Mark V. Hanson, Attorney, Des Moines; Michael R.
Hoffman, Attorney, Clive; Bruce Kempkes, Assistant Attorney General, Earlham;
Mark O. Lambert, Administrative Law Judge, Polk City; Edward M. Mansfield,
Attorney, Des Moines; Thomas A. Mayes, Attorney, Des Moines; Michael L. Mock,
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35
In 2009, Judge Miller retired,199 and Governor Culver appointed
Second District Judge David R. Danilson in his place.200 Judge Mahan also
retired in 2009.201 Judge Mahan’s vacancy was left open for 180 days due to
Attorney, West Des Moines; Jeffrey A. Neary, District Court Judge, Merrill; Timothy
O’Grady, District Court Judge, Council Bluffs; William J. Pattinson, District Court
Judge, Ames; Ronald R. Pohlman, Deputy Workers’ Compensation Commissioner,
Earlham; Darin J. Raymond, Plymouth County Attorney, Le Mars; Elisabeth S.
Reynoldson, Assistant Iowa Attorney General, Osceola; Allan M. Richards, Attorney,
Tama; Karen A. Romano, District Court Judge, Johnston; Brenton D. Soderstrom,
Attorney, West Des Moines; Mary E. Tabor, Assistant Attorney General, Des Moines;
Frank Cal Tenuta, Attorney, Sioux City; Karen L. Thalacker, Attorney, Waverly;
Janece Valentine, Attorney, Fort Dodge; and Bruce Burton Zager, District Court
Judge, Waterloo. News Release, Iowa Judicial Branch, Twenty-seven Iowans Apply
for Court of Appeals (Dec. 9, 2008) (on file with authors).
In addition to Mansfield, the nominees were Janece Valentine and Bruce Zager.
News Release, Iowa Judicial Branch, Commission Names Nominees for Iowa Court of
Appeals (Dec. 17, 2008) (on file with authors); Appeals Court Finalists Named, DES
MOINES REG., Dec. 20, 2008, at 4A; Editorial, Judge-Selection Process Works for Iowa,
DES MOINES REG., Dec. 27, 2008, at 12A.
199.
See News Release, Iowa Judicial Branch, Iowa Court of Appeals Judge
John Miller to Retire (June 15, 2009) (on file with authors).
200.
Danilson Is Named to Appeals Court, DES MOINES REG., Sept. 17, 2009,
at 5B; News Release, Iowa Judicial Branch, Governor Appoints Judge Danilson to
Iowa Court of Appeals (Sept. 17, 2009) (on file with authors); Press Release, Office of
the Governor, State of Iowa, Governor Culver Names Judge Danilson to Iowa Court
of Appeals (Sept. 16, 2009) (on file with authors). Eighteen applied for the vacancy:
Kerry K. Anderson, Administrative Law Judge, Urbandale; Anne L. Clark,
Attorney, Des Moines; David R. Danilson, District Court Judge, Boone; George F.
Davison, Jr., Attorney, Des Moines; Mark V. Hanson, Attorney, Des Moines; Bruce L.
Kempkes, Assistant Attorney General, Earlham; Mark O. Lambert, Administrative
Law Judge, Polk City; Michael L. Mock, Attorney, West Des Moines; Michael R.
Mullins, District Court Judge Washington; Jeffrey A. Neary, District Court Judge,
Merrill; Ronald R. Pohlman, Deputy Workers’ Compensation Commissioner,
Earlham; Elisabeth S. Reynoldson, Assistant Attorney General, Osceola; Allan M.
Richards, Attorney, Tama; Karen A. Romano, District Court Judge, Johnston;
Danielle Shelton, Attorney and Drake University Law School Professor, Urbandale;
Mary E. Tabor, Assistant Attorney General, Des Moines; Frank C. Tenuta, Attorney,
Sioux City; and Bruce Burton Zager, District Court Judge, Waterloo. News Release,
Iowa Judicial Branch, Eighteen Iowans Apply for Court of Appeals (Aug. 6, 2009); see
also Vacant Appeals Court Seat Attracts 18 Applicants, DES MOINES REG., Aug. 7, 2009,
at 2B.
In addition to Danilson, the nominees were Michael R. Mullins and Bruce B.
Zager. News Release, Iowa Judicial Branch, Commission Names Nominees for Iowa
Court of Appeals (Aug. 18, 2009); Editorial, Women, Minorities: Aim for Judiciary,
DES MOINES REG., Aug. 26, 2009 at 16A.
201.
News Release, Iowa Judicial Branch, Iowa Court of Appeals Judge
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a budget shortfall202 before Governor Culver appointed Assistant Iowa
Attorney General Mary E. Tabor in April 2010 as Judge Mahan’s
replacement.203 With Judge Tabor’s appointment, Chief Judge Sackett now
headed a court with a majority of women.204
After Iowa voters chose not to retain supreme court Justices Marsha
Robert Mahan to Retire (July 22, 2009); Appeals Court Judge to Retire This Month,
DES MOINES REG., July 23, 2009, at 7B.
202.
See Letter from Marsha K. Ternus, Chief Justice, Iowa Supreme Court,
to Michael A. Mauro, Sec’y of State, State of Iowa (Jan. 28, 2010) (on file with authors)
(asking Secretary Mauro to notify the nominating commission as the 180-day delay
elapsed). In addition to leaving vacancies open to save money, the court, along with
the rest of the judicial branch, endured furlough days, reduction in staff, and reduction
in staff hours and supplies. See Rod Boshart, Iowa Courts Face More Budget Cuts,
Furlough Days, QUAD-CITY TIMES (Apr. 7, 2009), http://www.qctimes.com/news
/state-and-regional/iowa/article_4280e6c0-23dd-11de-a09d-001cc4c03286.html.
203.
Press Release, Office of the Governor, Governor Culver Names Mary
Tabor to the Iowa Court of Appeals (Apr. 28, 2010) (on file with authors); News
Release, Iowa Judicial Branch, Governor Culver Appoints Mary Tabor to Iowa Court
of Appeals (Apr. 29, 2010) (on file with authors); D.M. Lawyer Named to Iowa
Appeals Court, DES MOINES REG., Apr. 29, 2010, at 2B. Twenty-one applied for the
vacancy:
Kerry K. Anderson, Administrative Law Judge, Urbandale; Anne L. Clark,
Attorney, Norwalk; George F. Davison, Jr., Attorney, Des Moines; Michael Buxton
Devine, Attorney, Lenox; Joel Greer, Attorney, Marshalltown; Mark V. Hanson,
Attorney, Des Moines; Patrick J. Hopkins, Attorney, Urbandale; Bruce L. Kempkes,
Assistant Attorney General, Earlham; Mark O. Lambert, Administrative Law Judge,
Polk City; Thomas Arthur Mayes, Attorney, Des Moines; Michael L. Mock, Attorney,
West Des Moines; Michael R. Mullins, District Court Judge, Washington; Jeffrey A.
Neary, District Court Judge, Merrill; Ronald R. Pohlman, Deputy Workers’
Compensation Commissioner, Earlham; Elisabeth S. Reynoldson, Assistant Attorney
General, Osceola; Allan M. Richards, Attorney, Tama; Brenton D. Soderstrum,
Attorney, West Des Moines; Mary E. Tabor, Assistant Attorney General, Des Moines;
Frank C. Tenuta, Attorney, Sioux City; Theresa R. Wilson, Assistant State Appellate
Defender, Des Moines; and Bruce Burton Zager, District Court Judge, Waterloo.
News Release, Iowa Judicial Branch, Twenty-one Iowans Apply for Court of Appeals
(Mar. 17, 2010) (on file with authors); 21 Apply for Seat on Appeals Court, DES
MOINES REG., Mar. 18, 2010, at 10B.
In addition to Tabor, the nominees were Joel Greer and Michael Mullins. News
Release, Iowa Judicial Branch, Commission Names Nominees for Iowa Court of
Appeals (Mar. 30, 2010) (on file with authors); Grant Schulte, Appeals Court Judge to
Be Tabbed This Week, DES MOINES REG., Apr. 25, 2010, at 5B.
204.
The five women currently on the nine-member court are: Chief Judge
Rosemary Sackett and Judges Gayle Nelson Vogel, Anuradha Vaitheswaran, Amanda
Potterfield, and Mary Tabor. See Judges of the Iowa Court of Appeals, IOWA JUDICIAL
BRANCH, http://www.iowacourtsonline.org/Court_of_Appeals/Judges/ (last visited Nov.
15, 2011).
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37
Ternus, Michael Streit, and David Baker in the November 2010 election,205
recently elected Governor Terry E. Branstad appointed Judge Edward
Mansfield to the supreme court to replace Justice Streit.206 Eighth Judicial
District Judge Michael R. Mullins filled the vacant position on the court of
appeals in June 2011.207
205.
See OFFICIAL RESULTS REPORT, IOWA SEC’Y OF STATE 14–16 (2010),
available at http://www.sos.state.ia.us/pdfs/elections/2010/gensummaryorr.pdf; News
Release, Iowa Judicial Branch, Judicial Nominating Commission Begins Process for
Selecting Nominees for Supreme Court (Dec. 13, 2010) (on file with authors); Grant
Schulte, Same-Sex Marriage Case Stirred Opposition, DES MOINES REG., Nov. 3, 2010,
at 1A & 3A.
206.
Press Release, Office of the Governor, State of Iowa, Branstad Names
Iowa Court of Appeals Judge Edward Mansfield to the Iowa Supreme Court (Feb. 23,
2011) (on file with authors).
207.
Press Release, Office of the Governor, State of Iowa, Branstad Appoints
Michael R. Mullins to the Iowa Court of Appeals (June 9, 2011) (on file with authors);
News Release, Iowa Judicial Branch, Governor Appoints Michael Mullins to Iowa
Court of Appeals (June 9, 2011) (on file with authors); Jeff Eckhoff, District Court’s
Mullins to Join Appeals Court, DES MOINES REG., June 10, 2011, at 2B. Twenty-six
applied for the position:
Craig Charles Ament, Attorney, Cedar Falls; Steven August Berger, Attorney,
Bettendorf; John William Bernau, Delaware County Attorney, Manchester; Nathan
Alden Callahan, District Associate Judge, Cedar Falls; Susan Christensen, District
Associate Judge, Harlan; George F. Davison, Jr., Attorney, Des Moines; Diane Linda
Dornburg, Attorney, Urbandale; Thomas James Duff, Attorney, Des Moines; Sharon
Soorholtz Greer, Attorney, Marshalltown; David James Hanson, Attorney, Fayette;
Peter Christopher Hart, Assistant County Attorney for Dickinson and Emmet
counties, Emmetsburg; Patrick J. Hopkins, Attorney, Urbandale; Michael Ray Keller,
Attorney, Des Moines; Bruce Kempkes, Assistant Attorney General, Earlham; David
L. Leitner, Attorney, Johnston; Kellyann M. Lekar, District Court Judge, Waterloo;
Don Richard McGuire, Jr., Attorney, Algona; James Paul Moriarty, Attorney, Cedar
Rapids; Michael R. Mullins, District Court Judge, Washington; Iris J. Post, Attorney,
Des Moines; Elisabeth S. Reynoldson, Assistant Attorney General, Osceola; Frank Cal
Tenuta, Attorney, Sioux City; Greta Truman, Assistant State Public Defender,
Waukee; Janece Valentine, Attorney, Fort Dodge; Jeanie Kunkle Vaudt, Assistant
Attorney General, West Des Moines; and ConGarry D. Williams, Assistant Public
Defender, West Des Moines. News Release, Iowa Judicial Branch, Twenty-six Iowans
Apply for Court of Appeals (Apr. 27, 2011) (on file with authors); 26 Lawyers to
Interview for Appeals Court Seat, DES MOINES REG., Apr. 29, 2011, at 4B.
Besides Mullins, the nominees were District Associate Judge Susan Christensen
and attorney Bruce Kempkes. News Release, Iowa Judicial Branch, Commission
Names Nominees for Iowa Court of Appeals (May 10, 2011) (on file with authors); 3
Nominated to Fill Appeals Court Job, DES MOINES REG., May 11, 2011, at 3B.
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XI. CURRENT WORK OF THE IOWA COURT OF APPEALS
“The principal role of the court of appeals is to dispose justly of a
high volume of cases.”208 To that end, it is the supreme court’s
responsibility to supervise and administer Iowa’s statewide court system, to
make rules, and to regulate and discipline lawyers,209 meaning the court of
appeals does not saddle itself with these things. In order to deal with the
volume of cases it faces, the court primarily decides cases by three-judge
panels, but occasionally the court will decide a case en banc.210
Upon transfer of a case to the court of appeals, the chief judge
determines whether to grant oral argument.211 Typically, the chief judge
grants oral argument in about twenty percent of the cases. All cases are
then randomly assigned to a judge for opinion writing.212 Cases are
assigned in equal numbers to each judge.
In 2010, the Iowa Supreme Court transferred 1,000 cases to the court
of appeals.213 The court of appeals decided 969 cases by written opinion in
2010.214 Of those, 720 were civil cases and 249 were criminal cases.215 Civil
cases were generally divided equally between family matters—domestic
relations, dissolution of marriage, child custody, termination of parental
rights, child in need of assistance—and ordinary civil actions—
administrative law, contracts, property, taxation, tort, probate.216
On average, each judge on the court authors approximately 100
opinions per year. Each judge also votes on an additional 200 opinions
written by his or her panel members. A judge may also write a
208.
209.
IOWA CT. R. 21.30(1).
See, e.g., IOWA CODE §§ 602.1201–.1207, .1301, .1401, .4102, .4201, .10101
(2001); IOWA CT. R. 22.1, 35.10.
210.
See IOWA CODE § 602.5102(4) (authorizing the court to sit in divisions or
panels); IOWA CT. R. 21.11; see also IOWA CT. R. 21.13 (noting that the divisions of the
court shall not be permanent). Currently, the panels change in composition every
three months.
211.
IOWA CT. R. 21.11.
212.
IOWA CT. R. 21.14. In 1995, the court began pre-assigning cases to a
writer prior to oral argument. Iowa Supreme Court Rule 3.3 (now 21.14) was amended
to so provide on August 1, 1995.
213.
MELINDA ALLEN, IOWA COURT OF APPEALS STATISTICAL REPORT FOR
THE YEAR 2010.
214.
Id.
215.
Id.
216.
See id. (providing exact numbers for each type of work, with the sum of
these areas being about the same).
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39
concurrence, special concurrence, partial concurrence, partial dissent, or
dissent to another authoring judge’s opinion. All opinions are circulated to
the entire court.
In 2010, the average time elapsed from the time the Iowa Supreme
Court transferred a general civil case to the court of appeals until the filing
of an opinion was 2.4 months.217 For priority civil cases involving child
custody and parental rights, the average time was 1.4 months.218 For
criminal cases, it was an even two months.219
The court of appeals files opinions about twice a month.220 The court
posts all of its opinions on the Iowa Judicial Branch website.221
A decision of the court of appeals is final unless accepted by the Iowa
Supreme Court for further review.222 The supreme court grants further
review in very few cases.223 For example, in 2010, out of the 451
applications for further review filed, the supreme court granted further
review in only sixty-seven cases.224 In 2010, the supreme court affirmed
seven court of appeals decisions, vacated forty-nine, and modified six.225
The net result in 2010 was that the court of appeals’ holding was the final
word in approximately eighty-six percent of all appeals decided by formal
opinion.226
In the first six months of 2011, 559 cases were transferred to the court,
compared to 481 transferred during the same period in 2010.227 In 2011, the
court filed 566 opinions through June 30—fifty-six more than were filed in
the first six months of 2010.228
217.
218.
219.
220.
Id.
Id.
Id.
See, e.g., Archive of Opinions for the Iowa Court of Appeals, IOWA JUD.
BRANCH, http://www.iowacourts.gov/Court_of_Appeals/Opinions_Archive/index.asp
(last visited Nov. 29, 2011).
221.
Opinions of the Iowa Court of Appeals, IOWA JUD. BRANCH,
http://www.iowacourts.gov/Court_of_Appeals/Opinions/ (last visited Nov. 29, 2011).
222.
IOWA CODE § 602.5106(2) (2011).
223.
MELINDA ALLEN, IOWA SUPREME COURT STATISTICAL REPORT FOR THE
YEAR 2010 (providing the number of cases affirmed, vacated, and modified in 2010).
224.
Id.
225.
See id.
226.
See id.
227.
MELINDA ALLEN, IOWA COURT OF APPEALS STATISTICAL REPORT (July
2011).
228.
Id.
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And the beat goes on.229
229.
Apologies to Sonny Bono and Cher. SONNY & CHER, The Beat Goes On,
on IN CASE YOU’RE IN LOVE (Atco Records 1967).