In State of Iowa ex rel. Dickey v. Besler, an opinion issued in February 2021, the Iowa Supreme Court was confronted with a lawsuit by a private citizen challenging the appointment of and Iowa District Court judge as invalid under state law. The Supreme Court held that a private citizen does possess standing to bring a quo warranto action against an individual’s right to hold public office, but this particular action, challenging a judicial appointment, was a nonjusticiable political question not properly presented to the judicial branch.
In May 2018, the Iowa judicial nominating commission for the sixth judicial district interviewed fifteen candidates for a district judge vacancy in that district. The top two candidates were sent to the Governor on May 22 to be selected for appointment. Iowa law specified that the governor had thirty days to appoint one of the nominees. If the governor failed to appoint a candidate, the chief justice was required to make the appointment.
On the thirtieth day, which was a Thursday, the Governor told her staff who she had selected for nomination. However, she did not tell the nominees or the secretary of state. The next Monday, the Governor told Jason Besler he had been selected and signed his commission. The chief justice’s legal counsel confirmed the appointment in writing a week and a half later and accepted that it was timely.
In October of 2018, a private citizen, Gary Dickey, wrote and requested that the Johnson County Attorney pursue a quo warranto action against Besler’s appointment pursuant to Iowa Rule of Civil Procedure 1.1302(1). The county attorney responded that she would not be filing an action and Dickey himself filed an action in district court alleging that the Governor had failed to appoint Besler by the deadline, and that as a consequence Besler was unlawfully holding office. The district court denied Dickey’s application, finding that Besler had been properly appointed.
The Iowa Supreme Court decided two issues on appeal: (1) whether Dickey had standing to bring a quo warranto action and (2) whether Dickey’s claim was justiciable.
The Court ruled that Dickey did have standing to bring a quo warranto action. Under Iowa Rule of Civil Procedure 1.1302(2), “any” citizen may make a demand on the county attorney, and if the county attorney fails to bring the action, the citizen may apply to the court where the action lies for leave to bring the action. Besler argued that the Court should apply traditional standing doctrine, which requires an injury in fact. But the Court ultimately concluded that the required interest in quo warranto actions is “something less than the injury in fact required in other contexts.” A private citizen bringing a claim quo warranto, on behalf of the state, must merely articulate a “colorable interest in the subject matter.” In this case, Dickey satisfied this standard because he was a practicing attorney in the sixth judicial district.
Besler next urged the Court to find that Dickey’s challenge to his appointment was nonjusticiable. He argued that the quo warranto action is not available to challenge the timeliness of an appointment by the governor when the only other official with appointment authority—the Chief Justice—accepts the governor’s appointment as timely. The Court agreed and found that judicial relief is unavailable in these circumstances.
The Court outlined that the appointment power is assigned by the Iowa Constitution and Iowa Code to two people – the Governor and the Chief Justice. Because both of those individuals agreed on the appointment, there was no legal issue for the Court to decide.
The Court explained:
“Additionally, our intervening in this matter would demonstrate a lack of respect for the Governor’s and the late chief justice’s display of comity toward each other. We would be saying, as a court, that their amicable resolution of a question as to who between the two of them gets to make an appointment was not worthy of our recognition.”
The Court decided that Dickey’s challenge to Besler’s appointment raised a nonjusticiable political question, not a legal question, because it is not susceptible to a neat legal answer and there is a need for adherence to the political decision already made by the chief justice.
Justice Appel dissented. He argued that “courts cannot simply refuse to consider matters brought before it by citizens because the matter is controversial or unpleasant.” He concluded that the political question doctrine should have no application in this case because, applying a classical model, there is no textual commitment of the specific question in this case. The constitutional provision “does not provide a textually demonstrable power to determine whether the thirty-day time limit has been met with any branch of government. That presents a question for judicial resolution.” Justice Appel concluded that Dickey’s claim was justiciable because the matter of timeliness is a simple one for the Court to decide.
Allison Adams is a student at the University of Iowa College of Law.
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