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HISTORY OF THE IOWA COURT OF APPEALS

Hon. Rosemary Shaw Sackett*

Hon. Richard H. Doyle**

I. Early History ...... 1 II. Creation of the Iowa Court of Appeals ...... 3 III. The Court in Controversy ...... 10 IV. The Early Five-Judge Court ...... 12 V. Changes ...... 18 VI. The Expansion of the Iowa Court of Appeals ...... 20 VII. Ten-Year Anniversary ...... 22 VIII. Transitions ...... 23 IX. Six Judges to Nine ...... 28 X. Further Transitions ...... 31 XI. 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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2 Drake Law Review [Vol. 60 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 short- lived 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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2011] History of the Iowa Court of Appeals 3

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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4 Drake Law Review [Vol. 60 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/cgi- bin/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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2011] History of the Iowa Court of Appeals 5

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. FINAL REPORT, supra note 18, at 3. 29. 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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2011] History of the Iowa Court of Appeals 7 nomination.35 In late August 1976, the nominating commission, chaired by Iowa Supreme Court Justice Larry Mason, selected fifteen out of thirty- nine 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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2011] History of the Iowa Court of Appeals 9 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 five- judge 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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2011] History of the Iowa Court of Appeals 11 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. Hyde & Mack, supra note 52, at 3A. 60. Hyde, supra note 58. 61. Id. 62. Id. 63. 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. Id. 72. Id. 73. Engel, supra note 63. 74. Id. 75. Id. 76. See id. 77. See Redmond v. Carter, 247 N.W.2d 268, 269 (Iowa 1976). 78. Engel, supra note 63. 79. Id. 80. See Redmond, 247 N.W.2d at 268. 81. Id. at 271. 82. Id. at 274. 83. See Allbee, supra note 24, at 1.

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2011] History of the Iowa Court of Appeals 13 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. Id.; Interview with Robert G. Allbee, supra note 34. 85. 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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14 Drake Law Review [Vol. 60 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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2011] History of the Iowa Court of Appeals 15 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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16 Drake Law Review [Vol. 60 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. Allbee, supra note 24, at 5. 104. Interview with Leo Oxberger, supra note 35, at 42. 105. Id.; Interview with Robert G. Allbee, supra note 34. 106. Interview with Robert G. Allbee, supra note 34. 107. Allbee, supra note 24, at 4–5. 108. 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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2011] History of the Iowa Court of Appeals 17 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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18 Drake Law Review [Vol. 60 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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2011] History of the Iowa Court of Appeals 19 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, Twenty- One 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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20 Drake Law Review [Vol. 60

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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2011] History of the Iowa Court of Appeals 21 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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22 Drake Law Review [Vol. 60 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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2011] History of the Iowa Court of Appeals 23

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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24 Drake Law Review [Vol. 60 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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2011] History of the Iowa Court of Appeals 25

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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26 Drake Law Review [Vol. 60

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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2011] History of the Iowa Court of Appeals 27 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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28 Drake Law Review [Vol. 60 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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2011] History of the Iowa Court of Appeals 29 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 seven- member 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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30 Drake Law Review [Vol. 60 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-s- Governors (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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2011] History of the Iowa Court of Appeals 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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32 Drake Law Review [Vol. 60

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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2011] 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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34 Drake Law Review [Vol. 60

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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2011] History of the Iowa Court of Appeals 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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36 Drake Law Review [Vol. 60 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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2011] History of the Iowa Court of Appeals 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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38 Drake Law Review [Vol. 60

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. IOWA CT. R. 21.30(1). 209. 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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2011] History of the Iowa Court of Appeals 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. Id. 218. Id. 219. Id. 220. 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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40 Drake Law Review [Vol. 60

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).