Challenged commissioners to stay on Supreme Court selection panel while vacancy is filled

Three members of Iowa's statewide judicial nominating commission will continue their terms into the new year as the group works to fill a state supreme court vacancy.

That's despite a challenge from a Des Moines lawyer who argued those members' terms should expire Dec. 31 under the Iowa Constitution.

In a news release, the Iowa Judicial Branch said the commission will begin accepting applications Thursday for the vacancy created by the resignation of Justice Daryl Hecht, which is effective Thursday.

Hecht is resigning due to his skin cancer.

The commission has 60 days from Dec. 4 to send three nominees to Gov. Kim Reynolds, who will select one of the three to be the state's newest supreme court justice.

The announcement comes as attorney Bill Gustoff has argued the state constitution requires the terms of commissioners Connie Diekema of Des Moines, Martin Diaz of Swisher and Suzan Boden of Sioux City to expire on Dec. 31.

The release included legal guidance from the Iowa Attorney General's Office, which said the three commissioners will hold office until their successor is elected. Although the three will serve as "holdover officers" the length of the commissioners' six-year terms will not change in the future, wrote Emily Willits, an assistant attorney general.

A longstanding state law says the attorney members of the commission serve six-year terms that begin July 1 after elections are held in January. The Iowa Judicial Branch continues to follow that practice and holds the three commissioners' terms should expire June 30, 2019. The commissioners have been planning to participate in interviewing candidates and selecting finalists for the looming vacancies.

In a letter to State Court Administrator Todd Nuccio earlier this month, Gustoff argues that their terms actually expire Jan. 1 due to a conflicting law approved in 2008. That law changed the makeup of the commission to comply with upcoming redistricting and declared all existing terms would end Dec. 31, 2012. Diekema, Diaz and Boden's terms began on Jan. 1, 2013.

Willits wrote back to Nuccio that the Iowa Supreme Court has previously analyzed the holdover doctrine in the context of the state judicial nominating commission, so the doctrine does apply to the commissioners.

"Fortunately, the gap between terms is a one-time event that should not recur," Willits wrote.

Gustoff is the treasurer of the Republican Party of Iowa, a member of the state party's central committee and the former law partner of acting U.S. Attorney General Matt Whitaker.

He previously told the Register he would consider filing a lawsuit if the Attorney General's office said the commissioners' terms could continue beyond the end of the year. He could not immediately be reached for comment Thursday.

Diekema, Diaz and Boden are attorneys who were elected from among Iowa lawyers by the Iowa State Bar Association to serve one six-year term on the state judicial nominating commission, which sends the names of judicial finalists to the governor for final consideration.

The commission has 17 members, including eight elected lawyers and eight non-lawyers appointed by Reynolds, a Republican. Iowa Supreme Court Justice David Wiggins chairs the commission.

Reynolds recently expressed openness to changing the nonpartisan nominating commission.

The deadline for applications to fill Hecht's seat is Jan. 16 and the commission plans to meet Jan. 30 and 31 to interview applicants. Attorneys who applied to fill retired Justice Bruce Zager's seat over the summer do not need to resubmit a full application or sit for a new interview, the release said.