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The Iowa State Constitution, 2nd Edition by Pettys, Todd E (9th February 2018)

Part Two The Iowa Constitution and Commentary, Art.V Judicial Department

From: The Iowa State Constitution (2nd Edition)

Todd E. Pettys

(p. 215) Article V  Judicial Department

Section 1.  Courts.

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.

Section 1, which vests the State of Iowa’s judicial power in a network of courts, continues to read largely as it did in Iowa’s 1846 constitution. At the 1857 convention, a majority of the Committee on the Judiciary Department proposed creating “superior courts” to serve within each of the state’s judicial districts as intermediate tribunals with appellate jurisdiction, but a minority of the committee objected to that plan.1 The disagreement between the two camps provoked a lengthy debate, during which the precise contents of the competing proposals changed many times.2 Led by Henry County’s Rufus Clarke and Des Moines (p. 216) County’s Jonathan Hall, proponents of the superior courts argued that these intermediate appellate courts would reduce the burden on the Iowa Supreme Court, make appellate litigation more geographically convenient, help the growing state manage its burgeoning caseload, and increase the quality of judicial decision-making. Led by Johnson County’s William Penn Clarke, opponents contended that the added appellate layer would unjustifiably increase costs for the state and litigants alike. By a vote of 15 to 10, the delegates opted to leave the General Assembly free to decide for itself whether intermediate appellate courts should be created.3 Albeit on a model different from what Rufus Clarke and Jonathan Hall envisioned, the General Assembly established the Iowa Court of Appeals in 1976 to serve as an intermediate appellate court, adjudicating appeals referred to it by the Iowa Supreme Court.4

The historical record suggests that the delegates to the 1846 and 1857 conventions did not publicly debate the contours of “[t]‌he judicial power” that the state’s courts would wield. As the Iowa Supreme Court observed in 1916’s Hutchins v. City of Des Moines, “[w]hile the Constitution created the courts, it has not undertaken to specify in detail their functions nor to define their power, save plainly to indicate that the entire judicial power has been conferred on them.” The court subsequently explained that the “[j]udicial power vested in the courts by the Iowa Constitution is the power to decide and pronounce a judgment and carry it into effect” (Klouda v. Sixth Judicial District Department of Correctional Services, 2002). The Klouda court concluded that, although the legislature has the power to define crimes and to prescribe the penalties for those who commit them, sentencing functions “are clearly reserved to the judiciary” because they are the means by which courts implement their judgments. This component of the judicial power also underlay a portion of the court’s ruling in Cedar Rapids Human Rights Commission v. Cedar Rapids Community School District (1974), in which the justices ruled that a municipal human rights commission was an administrative entity—and not a court exercising the judicial power—because the commission could not enforce its own orders, but instead had to invoke the aid of a district court.

Section 1 helps to explain why the state’s “supreme” court figures so prominently in a book of this kind: sitting atop the state’s judicial hierarchy, the (p. 217) Iowa Supreme Court is “the final arbiter” of the Iowa Constitution’s meaning (Kruidenier v. McColloch, 1966). Section 1 also gives the Iowa Supreme Court the authority to license and regulate those who practice law in the state (Rowen v. Le Mars Mutual Insurance Co., 1975). In Rowen, for example, the court held that it had the power to adjudicate a motion to disqualify (on conflict-of-interest grounds) two attorneys representing the defendants in an appeal pending before the court.

When interpreting Section 1, the court has focused most of its attention on the judiciary’s relationship with the legislative and executive branches. This book’s commentary on Article III, Section 1, discusses separation-of-powers principles in greater detail—principles that are not repeated here but are nevertheless important for anyone studying the scope of the judicial power.

Section 2.  Supreme court.

The Supreme Court shall consist of three Judges, two of whom shall constitute a quorum to hold Court.

Iowa’s 1846 constitution stated that the supreme court would “consist of a Chief Justice and two Associates, two of whom shall be a quorum to hold court.”5 The delegates to the 1857 convention changed the language to what one sees above. Under proposals initially submitted by members of that convention’s Committee on the Judiciary Department, the court was to have four members, with one justice elected in each of four judicial districts.6 The convention nevertheless settled upon a court of three members, reasoning that the existing supreme court rarely produced dissenting opinions (and that there thus was no reason to believe the court needed additional perspectives or wisdom) and that, when there was a dissent in a given case, it was better to have a precedent-setting ruling by a 2–1 majority than to risk having a non-precedent-setting 2–2 tie.7 In Section 10 of this article, however, the delegates opted to allow the General Assembly to increase or decrease the total number of justices. Today, by virtue of legislation, seven justices sit on the Iowa Supreme Court.8

(p. 218) Section 3.  Election of judges—term.


In 1962, Iowa voters made substantial changes to Article V. Prior to 1962, Section 3 provided for the selection of supreme court justices, each of whom served a six-year term; Section 5 provided for the selection of district court judges, each of whom served a four-year term; Section 9 set the salaries of both categories of judges up to the year 1860, after which the General Assembly was authorized to establish new rates of compensation; and Section 11 declared that both categories of judges would be “chosen at the general election” and would take office on the first day of the ensuing January. In 1962, Iowans repealed all four of those sections and replaced them with Sections 15, 16, 17, and 18 of this article.

As background to the changes that Iowans made in 1962, a brief word is in order regarding the ways in which the state selected its judges prior to that time. Under the state’s first constitution, ratified in 1846, the General Assembly chose the members of the state’s highest court, while voters within each judicial district chose their district court judges.9 By the time of the 1857 constitutional convention, the tide had turned against allowing the legislature to select the Iowa Supreme Court’s members. So far as one can discern from the historical record, no one at the 1857 convention pushed hard for leaving this portion of the 1846 constitution unchanged. Instead, the delegates debated whether supreme court justices should be chosen in statewide elections or by voters within each judicial district. Johnson County’s William Penn Clarke argued in favor of electing justices on a district-by-district basis, reasoning that this would increase the likelihood that voters could make their decisions based upon firsthand knowledge of the candidates rather than upon the candidates’ partisan affiliations. Jefferson County’s James Wilson and Scott County’s George Ells urged the delegates to embrace statewide elections, so that each voter could play a role in selecting all of the state’s justices and so that the state would not lose the services of any extraordinarily well-qualified candidate who happened to live in the same district as an equally well-qualified candidate. The proponents of statewide elections prevailed.10 That is where matters stood until 1962. The changes implemented that year are chronicled in Part I of this book.

(p. 219) Section 4.  Jurisdiction of supreme court.

The Supreme Court shall have appellate jurisdiction only in cases in chancery, and shall constitute a Court for the correction of errors at law, under such restrictions as the General Assembly may, by law, prescribe; and shall have power to issue all writs and process necessary to secure justice to parties, and shall exercise a supervisory and administrative control over all inferior judicial tribunals throughout the state.

Section 4, which outlines the Iowa Supreme Court’s core powers, generally tracks the corresponding text of Iowa’s 1846 constitution,11 with one exception: today, Section 4 gives the supreme court “supervisory and administrative control over” the state’s lower courts. Iowa voters made that addition in 1962. So far as one can discern from the convention records, the delegates to the 1846 and 1857 conventions did not significantly debate the jurisdiction and powers of the Iowa Supreme Court. As this book discusses in its commentary on Sections 2 and 3 of this article, the delegates focused instead on how the court’s members should be chosen and how many members there should be.

The opening lines of Section 4 indicate that, as a general matter, the Iowa Supreme Court is not a court of original jurisdiction—that is, it is not a court in which one can launch a new lawsuit (Lampson v. Platt, 1855; McGregor v. Gardner, 1864). Rather, it is a court to which one turns when one believes a lower court has made a mistake affecting the outcome of one’s litigation. As we shall see, however, the court does sometimes take jurisdiction of original petitions asking the court to wield its Section 4 power to supervise the state’s lower courts. Also, Section 36 of Article III gives the court original jurisdiction for all litigation regarding the apportionment of the General Assembly.

Chancery and law.

The first half of Section 4 distinguishes between equity (“chancery”) and law. The reference to chancery points toward principles and practices that trace their roots to England’s Court of Chancery—a court that endeavored to fill some of the justice-hindering gaps in the English common-law system. The jurisdiction conferred by the chancery provision “is that possessed by chancery courts at the time of the adoption of the constitution” (Lessenich v. Sellers, 1903).

Like England, some of the Union’s early states maintained separate equity and law courts. By the late 1860s, however, most states—like Iowa—had unified judiciaries, though some of them—again, like Iowa—continued to maintain law (p. 220) and equity as separate jurisdictional categories.12 In 1937’s Ontjes v. McNider, the Iowa Supreme Court explained:

Prior to the adoption of our Constitution and the enactment of statutes authorizing appeals to this court, there were many differences between obtaining a review in an appellate court in an action in equity, and a correction of errors in an action at law. Under the old English system, courts of law and courts of equity were entirely distinct, and a review in an equity case was by a different tribunal than that in which a review could be had in an action at law. Now [in Iowa] the same tribunal, the supreme court, entertains appeals from and reviews both actions in equity and those at law. The procedure followed in removing actions from the trial court to an appellate court was likewise different, actions at law being removed by a writ of error, and actions in equity by appeal. Writs of error are now dispensed with and the same method, notice of appeal, is pursued in transferring cases to the supreme court in both actions in equity and those at law.

Although some of the institutional differences between law and equity have thus been discarded, the law-equity distinction remains meaningful in Iowa today.13 In law cases, the “court can only act as a court for the correction of such errors as are specifically pointed out” (Ontjes v. McNider, 1937) and the court is bound by the lower court’s factual findings if those findings are supported by substantial evidence (Midwest Recovery Services v. Wolfe, 1990). Equity cases are different. As the Iowa Supreme Court explained early in the state’s history, “[u]‌nder the appellate jurisdiction of a chancery case, that court is authorized to investigate it in all its merits and equities, while, in an action at law, that court can only correct errors which are patent of record” (Claussen v. Lafrenz, 1854). When taking an appeal in equity, the supreme court may review both the law and the facts de novo (In re Marriage of Smiley, 1994; Gibson v. Deuth, 1978), although the court does give some “weight” to the district court’s factual findings (Hyler v. Garner, 1996; Hayne v. Cook, 1961) and is “especially deferential to the [district] court’s assessment of the credibility of witnesses” (Wellmark, Inc. v. Polk County Board of Review, 2016).14 Nevertheless, the supreme court in equity cases does not venture off in a freewheeling search for matters requiring adjustment; rather, the scope of the court’s review is typically limited to the specific factual and legal issues raised by the appellant (Richardson v. Neppl, 1970).

(p. 221) Because the law-equity distinction remains significant, Section 4 requires those appearing before the Iowa Supreme Court to know on which side of the line their cases fall. Examples of equity actions include (among many others) actions for injunctive relief (State ex rel. Miller v. Midwest Pork, L.C., 2001),15 specific performance of contractual obligations (Janssen v. North Iowa Conference Pensions, Inc., 1969), and dissolution of marriage (In re Marriage of Geil, 1993). Examples of law actions include (among many others) actions for money damages (Mosebach v. Blythe, 1979), breach of contract (Knudsen v. Andreasen, 1990), and garnishment (Ellefson v. Centech Corp., 2000).16 As a general matter, the supreme court’s practice is to follow the trial court’s lead when deciding whether to treat a case as legal or equitable in nature (Citizens Savings Bank v. Sac City State Bank, 1982). When determining how an action for declaratory judgment was tried below, the court pays particular attention to “[t]‌he pleadings, relief sought, and nature of the case” (Nelson v. Agro Globe Engineering, 1998). If there are doubts about how to treat a case in any given instance, the supreme court might resolve its uncertainty by determining whether the trial court excluded evidence in response to evidentiary objections. If evidence was indeed excluded in the proceedings below, the case might best be treated as legal in nature, since the exclusion could frustrate the justices’ effort to conduct the de novo review that is appropriate in equity proceedings (Sille v. Shaffer, 1980).

Under such restrictions as the general assembly may, by law, prescribe.

Under Section 4’s “restrictions” clause, the General Assembly can “set terms and conditions for appeal[s]‌” and restrict the Iowa Supreme Court’s jurisdiction, but it cannot enlarge that jurisdiction beyond the boundaries that the constitution sets (Western International v. Kirkpatrick, 1986). In Western International, for example, the court reiterated that “the original jurisdiction of this court is limited to the supervision of inferior judicial tribunals”—and because administrative agencies are not such tribunals, legislation that authorized the court to hear appeals directly from an agency amounted to an unconstitutional expansion of the court’s original jurisdiction. Parties to a case cannot themselves confer jurisdiction on the court by mutually agreeing to appear there (Rosmann v. Lawler, 1965).

(p. 222) Power to issue all writs and process necessary to secure justice to parties.

Section 4 authorizes the Iowa Supreme Court “to issue all the common-law writs” (State ex rel. O’Connor v. District Court in Shelby County, 1935). In State ex rel. O’Connor, for example, the court stated that—if it were justified by the merits—it could issue a writ of prohibition barring a district court from proceeding with a case that challenged the governor’s power to temporarily declare martial law in an Iowa county. The writ of certiorari is among those that the court may issue when justice so requires (Hadjis v. Iowa District Court, 1979), especially as a device for “avoid[ing] unnecessary and costly litigation” (Steinbeck v. Iowa District Court, 1974). Certiorari may be warranted when the lower court “is alleged to have exceeded its jurisdiction or to have acted illegally” (State Public Defender v. Iowa District Court, 1999). The court has “interpreted this standard liberally, stating that illegality exists when the [lower] court’s ruling lacks substantial evidentiary support or when the court has not applied the proper rule of law” (Bousman v. Iowa District Court, 2001). In City of Okoboji v. Iowa District Court (2008), for example, the court used certiorari as the vehicle for correcting a district court’s failure to issue an injunction in accordance with the supreme court’s prior mandate in the case. The court’s use of the writ in City of Okoboji is closely tied to the court’s power to supervise the state’s lower courts, considered next.

Supervisory and administrative control over inferior judicial tribunals.

Section 4 grants the Iowa Supreme Court broad power to supervise and administer the state’s judicial system. As the court observed in both Warren County v. Judges of the Fifth Judicial District (1976) and Welty v. McMahon (1982),

[t]‌he superintending control is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur it will be found able to cope with them.

The provision empowers the court to admonish or censure judges, for example, when they commit ethical infractions (In re Howes, 2016). In 2017, the court invoked its Section 4 powers to “prohibit[] all weapons from courtrooms, court-controlled spaces, and public areas of courthouses and other justice centers,” except those weapons carried by “peace officers . . . while performing law enforcement duties.”17 The supervisory powers granted by Section 4 are not, (p. 223) however, wholly unrestricted. In 2013’s Root v. Toney, for example, the court concluded that Section 4 authorized the court “to set the office hours of the clerks of court” (such as by reducing those hours in order to reduce the judiciary’s annual operating costs), but not—absent legislative authorization—to “reduce the time allowed to file a notice of appeal.” In 1971’s In re Municipal Court of Cedar Rapids, the court stated that Section 4 did not authorize the court to remove judges from office. (That particular shortcoming was remedied in 1972, when Iowans amended Article V by adding Section 19.18)

The writ of certiorari provides the Iowa Supreme Court with an important (but not the exclusive19) means of exercising these powers.20 Although the court has said that it possesses “original jurisdiction” to adjudicate certiorari petitions (Western International v. Kirkpatrick, 1986), it often is jurisdiction of a derivative sort. The court explained in 1935’s Independent School District v. Samuelson:

Applications to this court for writs of certiorari are sometimes referred to as original proceedings, but that is not the equivalent of saying that in the granting of said writs the court exercises original jurisdiction. The granting of writs of certiorari by this court are original proceedings only in a very limited sense inasmuch as the function of the writ is to bring before this court for review in a particular manner a limited class of errors alleged to have been committed by inferior judicial tribunals, namely, those which result from such tribunals exceeding their jurisdiction or otherwise acting illegally. The only purpose which the writ serves is to annul proceedings of such inferior judicial tribunals. No other relief can be granted. What is accomplished, therefore, by means of the writ is the correction of a particular class of errors at law committed by inferior judicial tribunals. Moreover, this court has power to issue the writ only to carry out the constitutional mandate of exercising “a supervisory control over inferior judicial tribunals.” To afford a means of exercising such supervisory control is one of the chief offices of the writ.

In Samuelson itself, the court held that, because the State Superintendent of Public Instruction was not a judicial officer under the court’s supervision, the (p. 224) writ of certiorari could not be used as a vehicle for reviewing that official’s alleged illegal behavior.21

Although Section 4 does impose upon the Iowa Supreme Court the task of supervising the state’s lower courts (In re Judges of the Cedar Rapids Municipal Court, 1964), it does not require the court to entertain all original petitions asking the court to wield that power. The court has explained that, if a district court is empowered to provide a suitable remedy, the supreme court’s usual preference is to require the complainant to file its petition there, deferring any review until an appeal has been filed (Iowa Civil Liberties Union v. Critelli, 1976; Warren County v. Judges of the Fifth Judicial District, 1976). Nevertheless, in In re Judges of the Cedar Rapids Municipal Court, Iowa Civil Liberties Union, and Warren County, as well as in Welty v. McMahon (1982), the court took jurisdiction of original petitions due to the public importance of the issues they presented. In Judges of Cedar Rapids, for example, two municipal court judges had appeared to run their courts “according to their personal whims and predilections,” such as by unduly delaying their rulings and by dismissing criminal and civil cases without giving the initiating parties an opportunity to be heard.

This same clause also empowers the court to “implement protocols to protect the rights of criminal defendants” (State v. Dahl, 2016). In Dahl, the court fashioned “a protocol to balance the statutory right of an indigent defendant to the appointment of a private investigator . . . against his or her burden to present sufficient information to the trial court to support the granting of an application for appointment of a private investigator at state expense.”

Section 5.  District court and judge.


For a brief explanation of Section 5 and its repeal, see the commentary on Article V, Section 3.

Section 6.  Jurisdiction of district court.

The District Court shall be a court of law and equity, which shall be distinct and separate jurisdictions, and have jurisdiction in civil and criminal matters arising in their respective districts, in such manner as shall be prescribed by law.

Section 6, which sketches the expansive jurisdictional boundaries of Iowa’s district courts, continues to be framed in the language adopted by the delegates (p. 225) to the state’s 1857 constitutional convention. That text differs in two notable ways from the corresponding passage of the state’s first constitution, ratified in 1846. First, the 1846 text declared that the district courts had “jurisdiction in all civil and criminal matters arising in their respective districts.”22 The delegates in 1857 opted to strike the word “all” after Des Moines County’s Jonathan Hall pointed out that the Iowa Supreme Court had concluded that the 1846 text did not allow the General Assembly to place limits on the district courts’ jurisdiction.23 In a pair of separate cases concerning a horse and a debt—Hutton v. Drebilbis (1850) and Nelson v. Gray (1850), respectively—the court had indeed held that, due to the breadth of the district courts’ constitutional authority under the 1846 text, the state’s justices of the peace could not be given the exclusive power to hear civil suits for small sums. The 1857 delegates believed the General Assembly should have greater power to tailor the judicial system to particular circumstances.

Second, the delegates in 1857 added the phrase “which shall be distinct and separate jurisdictions.” Three years earlier—in a case in which the plaintiff had “so blended and confounded” the principles of law and equity that the case could not “be designated as belonging to either”—the Iowa Supreme Court had insisted that the distinction between law and equity is as significant as the distinction between civil and criminal proceedings (Claussen v. Lafrenz, 1854).24 Johnson County’s William Penn Clarke proposed adding the “distinct and separate” language in order to ensure “that law and equity could not be mixed up together” in a single case.25 With that same objective evidently in mind, the General Assembly soon enacted legislation barring litigants from joining legal and equitable causes of action in the same petition.26 That is where matters stood until 1943, when—in keeping with a national movement toward easing the law-equity divide—Iowa adopted a rule of civil procedure permitting a plaintiff to “join in the same petition as many causes of action, legal or equitable,” as he or she has against a given defendant.27 Without explanatory discussion, the Iowa Supreme Court has concluded that Section 6 does not bar such joinders (First National Bank v. Curran, 1973). If a plaintiff separates his or her legal and equitable claims (p. 226) into two separate proceedings, the two proceedings may be consolidated (for an example, see Knigge v. Dencker, 1955). For further discussion of the distinction between law and equity, see the commentary on Article V, Section 4.

Iowa’s district courts are courts of general jurisdiction, authorized to hear all matters of law and equity arising within their respective districts (Schott v. Schott, 2008).28 Even if a district court’s judges opt to split the cases between them along law-equity lines, any judge on that court retains jurisdiction to adjudicate any case falling within Section 6’s broad description (Foley v. Utterback, 1923). The provision’s geographic restriction is reminiscent of the Vicinage Clause in the Sixth Amendment to the U.S. Constitution, which states that a criminal defendant is entitled to trial “by an impartial jury of the State and district wherein the crime shall have been committed.” In State v. Rimmer (2016), noting that the defendants had not sought to distinguish between the requirements of the Vicinage Clause and Section 6, the Iowa Supreme Court held that Section 6’s “arising in” requirement was satisfied so long as at least part of the charged crime was committed in the district where the prosecution had been brought.

The General Assembly cannot strip district courts of their broad jurisdictional reach, but it can regulate the manner in which the courts’ jurisdiction is exercised (In re Guardianship of Matejski, 1988; Laird Bros. v. Dickerson, 1875). In Schrier v. State (1997), for example, the court noted that the General Assembly may impose statutes of limitations on petitions for postconviction relief; such statutes restrict a district court’s authority to act, but they do not unconstitutionally strip the court of jurisdiction. The distinction between authority and jurisdiction is important more generally because “a defect in the court’s authority to hear a particular case may be waived, whereas any defect in its subject matter jurisdiction is not subject to waiver” (State v. Emery, 2001).

Section 7.  Conservators of the peace.

The Judges of the Supreme and District Courts shall be conservators of the peace throughout the State.

This rarely noted provision imposes upon Iowa judges the duty to help preserve public peace. When framing the text that one sees here, the delegates to the 1857 constitutional convention pulled together provisions that had appeared in two separate sections of the 1846 constitution.29 The records of Iowa’s 1846 and 1857 conventions do not contain any indication that these provisions were (p. 227) publicly debated. Rather, they appear simply to have been copied from a handful of other states’ constitutions.30

The Iowa Supreme Court’s only significant ruling on Section 7 is half a century old. In Newby v. District Court of Woodbury County (1967), a state judge had heard four young men carousing on the street near the judge’s house. The judge went outside, identified himself as a judge, and told the troublemakers that he was ordering them to disperse. After some of the youths physically assaulted him, the judge initiated contempt proceedings against them, arguing that he had a judicial duty under Section 7 to conserve the peace and that the young men had interfered with his exercise of that duty. The Iowa Supreme Court agreed with the judge, observing that Section 7 does not “specif[y]‌ the manner in which judges of this court or of the district courts shall discharge their duties as conservators of the peace,” but that the judge was plainly trying to put an end to a public disturbance. That outcome is consistent with the court’s brief observation in Reed v. Murphy (1850) that when judges act as conservators of the peace, they may be acting individually as judges, rather than as a court.

Section 8.  Style of process.

The style of all process shall be, “The State of Iowa,” and all prosecutions shall be conducted in the name and by the authority of the same.

Section 8 requires that all “process” be denominated as coming from the State of Iowa and that all prosecutions be conducted under the State of Iowa’s name and authority. The term “process” refers to any document (such as a warrant or a summons) that the state uses to notify a person that he or she is required to appear in court (City of Davenport v. Bird, 1872). Section 8 still reads as it did in the corresponding provision of Iowa’s 1846 constitution.31 The historical record does not provide any indication that the provision was publicly debated at any of the state’s constitutional conventions.

The Iowa Supreme Court first encountered this provision’s requirements during the period between the state’s 1846 and 1857 constitutions. In Rogers v. Alexander (1850), the treasurer of Van Buren County had commenced a criminal prosecution in his own name for the defendant’s alleged violation of certain liquor laws. A statute had appeared to direct the treasurer to style the action in this way, but the court vacated the conviction, ruling that the prosecution was fatally defective because it had not been designated as proceeding in the name and by the authority of the State of Iowa. In 1855’s Wrocklege v. State, however, (p. 228) the court explained that papers launching a prosecution need not recite Section 8’s precise language. The court held that it was permissible for the indictment to say merely that the prosecution was being brought “in behalf of” the state.

After the 1857 constitution’s ratification, the court continued to develop the flexible interpretation of Section 8 that Wrocklege had signaled. In State v. Gurlock (1863), for example, the court held that a criminal indictment was not rendered ineffective by being brought in the name of the State of “Sowa,” rather than the State of Iowa. In City of Davenport v. Bird (1872), the court concluded that Section 8’s requirements do not apply to criminal prosecutions brought by municipalities for violations of city ordinances. And if the city in such a case does provide the name of the state in addition to the name of the city, the paperwork does not violate Section 8 (City of Des Moines v. Pugh, 1942; State v. Wilson, 1899; State v. Smouse, 1878).

Section 9.  Salaries.


For a brief explanation of Section 9 and its repeal, see the commentary on Article V, Section 3.

Section 10.  Judicial districts.

The General Assembly may re-organize the Judicial Districts and increase or diminish the number of Districts, or the number of Judges of the said Court, and may increase the number of Judges of the Supreme Court; but such increase or diminution shall not be more than one District, or one Judge of either Court, at any one session; and no re-organization of the Districts, or diminution of the number of Judges, shall have the effect of removing a Judge from office. Such re-organization of the districts, or any change in the boundaries thereof, or increase or diminution of the number of Judges, shall take place every four years thereafter, if necessary, and at no other time.

At any regular session of the general assembly, the state may be divided into the necessary judicial districts for district court purposes, or the said districts may be reorganized and the number of the districts and the judges of said courts increased or diminished; but no reorganization of the districts or diminution of the judges shall have the effect of removing a judge from office.

Section 10 gives the General Assembly broad (but not limitless) freedom to change the judicial districts’ boundaries and to adjust the number of the state’s judges and district courts. It is this provision, for example, that gives the legislature the power to enlarge the Iowa Supreme Court beyond the three-member tribunal that Section 2 of this article would otherwise prescribe. Iowa’s first constitution directed the General Assembly to divide the state into four judicial (p. 229) districts and authorized it to create additional districts as it saw fit.32 In a now-outdated passage that is commonly omitted from recitations of Section 10 (just as it is omitted here), the delegates to the 1857 convention chose to expand the minimum number of districts to eleven and authorized the General Assembly to create additional districts after 1860.33 In the first paragraph that one sees above, the delegates also restricted the legislature’s power to restructure the state’s district courts (such as by barring the legislature from removing a judge from office through the district-altering process). During the delegates’ discussion of Section 10 at the 1857 convention, Davis County’s David Palmer explained that the reason for limiting the number of districts or judges that could be added in a single session was to make sure that “they shall not be increased five or six at a time, as was done this winter.” The delegates also briefly debated whether reorganizations should be permitted every five years or every four, ultimately settling upon the latter.34

Iowans added Section 10’s second paragraph in 1884. Read superficially, it might appear simply to repeat what the first paragraph already said. As the Iowa Supreme Court explained in State v. Emmons (1887), however, the amendment was significant: it empowered the General Assembly to restructure the state’s district courts without abiding by the restrictions imposed by the passages that appear in the middle and at the end of Section 10’s first paragraph, so long as no sitting judge is removed from office. Shortly after that amendment was ratified, the legislature abolished a circuit court that it had established less than two decades earlier and significantly expanded the number of Iowa’s judicial districts (State v. Emmons, 1887). The Emmons court pointed out that the constitution leaves the legislature free to place more than one judge within a given district.

In 1970, Attorney General Richard Turner expressed the view that the General Assembly may delegate much of the district-drawing task to the Iowa Supreme Court, so long as the legislature provides the court with guidelines.35 In 1971, he determined that Section 10 authorizes the legislature to cut short the terms of judicial nominating commissioners when reducing the total number of the state’s districts.36 In 1975, Turner concluded that Section 10 and separation-of-powers principles bar the legislature from delegating to a district’s chief judge (p. 230) the power to reduce the number of the district’s judges by swapping three part-time magistrate judges for one full-time magistrate judge.37

Section 11.  Judges—when chosen.


For a brief explanation of Section 11 and its repeal, see the commentary on Article V, Section 3.

Section 12.  Attorney general.

The General Assembly shall provide, by law, for the election of an Attorney General by the people, whose term of office shall be four years, and until his successor is elected and qualifies.

Iowa’s first constitution, adopted in 1846, directed the voters within each county to elect a prosecuting attorney,38 but it did not create the position of attorney general. In 1853, the General Assembly established the position of attorney general as a statutory matter.39 At the 1857 constitutional convention, Johnson County’s William Penn Clarke proposed going one step further by raising the position to constitutional stature. Appanoose County’s Amos Harris resisted Clarke’s suggestion, saying that he “was always of the opinion that the attorney general was a sort of fifth wheel to the wagon, and of no account. The legislature created this officer, and if it be deemed necessary, they can provide for him.” The delegates nevertheless accepted Clarke’s proposal by a vote of 18 to 13.40

As ratified in 1857, the attorney general’s term was set at two years. Iowans extended that term to four years in 1972, the same year they extended the governor’s term of office from two years to four (as described in the commentary on Article IV, Section 2).

Section 13.2 of the Iowa Code lays out the attorney general’s core duties. Those duties render the officeholder far more important than Harris’s “fifth wheel.”

(p. 231) Section 13.  District attorney.


Under the original text of Iowa’s 1857 constitution, voters in each judicial district were to elect a district attorney to serve a four-year term.41 Iowa voters altered that scheme in 1884, shifting to an arrangement in which voters in each county elected a county attorney to serve a two-year term. In 1970, Iowans repealed Section 13 altogether, thereby maximizing the General Assembly’s freedom to make whatever arrangements it sees fit for local public attorneys.42 Today, the position of county attorney is established by legislation.43 With Section 13 no longer standing in the way, the legislature has authorized counties that wish to do so to share the services of a single county attorney.44

Section 14.  System of court practice.

It shall be the duty of the General Assembly to provide for the carrying into effect of this article, and to provide for a general system of practice in all the Courts of this State.

Section 14, which directs the legislature to ensure that Article V’s requirements are implemented and to develop a “system of practice” for the state’s courts, was proposed without recorded explanation at the state’s 1857 constitutional convention by Henry County’s Rufus Clarke.45 The convention records contain no evidence that the provision was controversial.

The Iowa Supreme Court’s leading Section 14 ruling is Iowa Civil Liberties Union v. Critelli (1976). In that case, judges in the Fifth Judicial District had adopted a local rule imposing various time restrictions on pretrial procedures in criminal cases. The Iowa Civil Liberties Union and other petitioners argued that the judges had intruded upon the General Assembly’s Section 14 domain, but the court concluded otherwise. The court explained that Section 14 does not give the legislature the exclusive power to prescribe court rules, and that the supreme court had “consistently recognized the inherent common-law power of the courts to adopt rules for the management of cases on their dockets in the (p. 232) absence of [a]‌ statute.” “Where the legislature has not acted,” the court wrote, “courts possess a residuum of inherent common-law power to adopt rules to enable them to meet their independent constitutional and statutory responsibilities.” In Eicher v. Tinley (1936), the court determined that the General Assembly had not exceeded its power under this section when it limited the fines and jail time that a judge may impose for contempt of court.

Section 15.  Vacancies in courts.

Vacancies in the Supreme Court and District Court shall be filled by appointment by the Governor from lists of nominees submitted by the appropriate judicial nominating commission. Three nominees shall be submitted for each Supreme Court vacancy, and two nominees shall be submitted for each District Court vacancy. If the Governor fails for thirty days to make the appointment, it shall be made from such nominees by the Chief Justice of the Supreme Court.

As described in Part I and in the commentary on Article V, Section 3, Iowa voters in 1962 substantially altered the means by which judicial vacancies are filled. Prior to that year, the Iowa Supreme Court’s members were chosen in statewide elections and district court judges were chosen in district elections. The changes in 1962 were part of a movement in portions of the country away from choosing judges through elections—a method that many believed led to real or perceived corruption—and toward a merit-based selection process.46 Section 15 empowers the governor to select the members of the state’s supreme and district courts, but the eligible candidates are limited to those whose names appear on slates supplied by the appropriate judicial nominating commission (as described in Section 16 of this article). Because Section 15 was adopted in 1962, fourteen years prior to the creation of the Iowa Court of Appeals, the provision says nothing about filling vacancies on that intermediate appellate tribunal. The General Assembly has filled that void by enacting legislation charging the state judicial nominating commission with giving the governor a slate of three names when vacancies on that court occur.47

The Iowa Supreme Court’s chief justice is tasked with selecting from the commission’s slate in the unlikely event that the governor opts not to make a decision within thirty days. By giving the chief justice that power, Section 15 helps to ensure that the judiciary remains fully staffed even if a governor concludes that (p. 233) he or she would rather have a diminished judiciary than appoint any of the people whose names appear on the slate of options that he or she has been given.

The selection process introduced by Section 15 does not apply to every state employee who performs judicial functions. In Warren County v. Judges of the Fifth Judicial District (1976), the court held that judicial magistrates are not district court judges and thus need not be selected by the means that Section 15 prescribes.

Section 16.  State and district nominating commissions.

There shall be a State Judicial Nominating Commission. Such commission shall make nominations to fill vacancies in the Supreme Court. Until July 4, 1973, and thereafter unless otherwise provided by law, the State Judicial Nominating Commission shall be composed and selected as follows: There shall be not less than three nor more than eight appointive members, as provided by law, and an equal number of elective members on such Commission, all of whom shall be electors of the state. The appointive members shall be appointed by the Governor subject to confirmation by the Senate. The elective members shall be elected by the resident members of the bar of the state. The judge of the Supreme Court who is senior in length of service on said Court, other than the Chief Justice, shall also be a member of such Commission and shall be its chairman.

There shall be a District Judicial Nominating Commission in each judicial district of the state. Such commissions shall make nominations to fill vacancies in the District Court within their respective districts. Until July 4, 1973, and thereafter unless otherwise provided by law, District Judicial Nominating Commissions shall be composed and selected as follows: There shall be not less than three nor more than six appointive members, as provided by law, and an equal number of elective members on each such commission, all of whom shall be electors of the district. The appointive members shall be appointed by the Governor. The elective members shall be elected by the resident members of the bar of the district. The district judge of such district who is senior in length of service shall also be a member of such commission and shall be its chairman.

Due consideration shall be given to area representation in the appointment and election of Judicial Nominating Commission members. Appointive and elective members of Judicial Nominating Commissions shall serve for six year terms, shall be ineligible for a second six year term on the same commission, shall hold no office of profit of the United States or of the state during their terms, shall be chosen without reference to political affiliation, and shall have such other qualifications as may be prescribed by law. As near as may be, the terms of one-third of such members shall expire every two years.

Section 16 establishes a state judicial nominating commission to identify candidates for filling vacancies on the Iowa Supreme Court and establishes district judicial nominating commissions to identify candidates for filling vacancies on the state’s district courts. Section 16 should be read in conjunction with Sections 15, 17, and 18, all of which were added to the Iowa Constitution in 1962 as part of an overhaul of the means by which the state’s judgeships are filled. Part I(p. 234) of this book describes that overhaul. Regulations concerning the nominating commissions are located in Chapter 46 of the Iowa Code.48 Section 46.14A, for example, gives the state judicial nominating commission the task of identifying candidates for filling vacancies on the Iowa Court of Appeals.

Note that a sizable number of seats on the nominating commissions must be held by individuals who have been elected by members of the Iowa Bar. Two points about that arrangement deserve special mention. First, in Carlson v. Wiggins (2012), the U.S. Court of Appeals for the Eighth Circuit held that Iowa’s system of allowing only members of the Iowa Bar to select the commissions’ elective members does not violate the Fourteenth Amendment’s Equal Protection Clause. The court held that the arrangement is rationally related to Iowa’s legitimate interest in ensuring that only highly qualified individuals serve as state judges. Second, the Office of the Attorney General concluded in 1996 that Section 16 does not require the commissioners elected by the Iowa Bar to themselves be attorneys.49

In Welty v. McMahon (1982), the Iowa Supreme Court confronted an unusual circumstance. Two individuals had served terms on their respective districts’ judicial nominating commissions. Because the election for those seats had been delayed for a period of months, however, the two commissioners ultimately held those positions for five and a half years, rather than for the full six years authorized by Section 16. The two men sought re-election, arguing that Section 16’s restriction on second terms did not apply to them because they had not served a full first term. The court rejected that argument, reasoning that although the men’s “tenure” in office had indeed been less than six years, they nevertheless had completed six-year “terms.”

Section 17.  Terms—judicial elections.

Members of all courts shall have such tenure in office as may be fixed by law, but terms of Supreme Court Judges shall be not less than eight years and terms of District Court Judges shall be not less than six years. Judges shall serve for one year after appointment and until the first day of January following the next judicial election after the expiration of such year. They shall at such judicial election stand for retention in office on a separate ballot which shall submit the question of whether such judge shall be retained in office for the tenure prescribed for (p. 235) such office and when such tenure is a term of years, on their request, they shall, at the judicial election next before the end of each term, stand again for retention on such ballot. Present Supreme Court and District Court Judges, at the expiration of their respective terms, may be retained in office in like manner for the tenure prescribed for such office. The General Assembly shall prescribe the time for holding judicial elections.

Adopted in 1962 with Sections 15, 16, and 18 of this article, Section 17 sets the minimum length of judges’ terms and requires judges periodically to appear before Iowa voters in retention elections. The most widely noted judicial retention election to date occurred in 2010, when Iowa voters removed three members of the Iowa Supreme Court who had joined the court’s unanimous ruling in Varnum v. Brien (2009), striking down the state’s ban on same-sex marriage.50

Subject to the minima that it establishes, Section 17 charges the General Assembly with establishing the length of judicial terms. The legislature has carried out that responsibility in Section 46.16 of the Iowa Code. Section 17’s last sentence instructs the General Assembly to set the time for holding judicial elections. In Section 46.17 of the Iowa Code, the legislature has said that judicial elections “shall be held at the time of the general election.”

In a 1969 opinion largely focused on other matters, Attorney General Richard Turner stated that Section 17’s requirement that judicial retention elections be conducted “on a separate ballot” is not violated when election officials opt to use voting machines to present voters with all questions before them.51 The General Assembly shares that view: Section 46.22 of the Iowa Code permits judicial elections to be held “by separate paper ballot or optical scan ballot” and states that, “[i]‌f optical scan ballots are used, either a separate ballot or a distinct heading may be used to distinguish the judicial ballot.”

Section 18.  Salaries—qualifications—retirement.

Judges of the Supreme Court and District Court shall receive salaries from the state, shall be members of the bar of the state and shall have such other qualifications as may be prescribed by law. 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. Other judicial officers shall be selected in such manner and shall have such tenure, compensation and other qualification as may be fixed by law. The General Assembly shall prescribe mandatory retirement for Judges of the Supreme Court and District Court at a specified age (p. 236) and shall provide for adequate retirement compensation. Retired judges may be subject to special assignment to temporary judicial duties by the Supreme Court, as provided by law.

Together with Sections 15, 16, and 17, Section 18 was included in the package of constitutional amendments that Iowa voters approved in 1962 in order to overhaul the state’s system of selecting and retaining judges. Part I describes that overhaul. Section 18’s first sentence requires all state judges to be licensed Iowa attorneys, and invites the General Assembly to prescribe additional qualifications. Section 46.14 of the Iowa Code states that, in addition to being members of the Iowa Bar, nominees for judicial vacancies “shall be residents of the state or district of the court to which they are nominated, and shall be of such age that they will be able to serve an initial and one regular term of office to which they are nominated before reaching the age of seventy-two years.”

By not allowing judges to hold other state offices while on the bench and for two years thereafter, Section 18’s second sentence helps to maintain the separation of powers, prevent corruption and conflicts of interest, and ensure that judges are able to devote their professional energies to their judicial tasks. Because Section 18 was adopted in 1962, fourteen years prior to the creation of the Iowa Court of Appeals, the provision makes no reference to that tribunal. That silence created complications in 1976, when Governor Robert Ray appointed three sitting district court judges to the state’s newly created intermediate appellate court. Strictly read, Section 18’s second sentence would have appeared to render those three judges ineligible for elevation to any Iowa tribunal other than the Iowa Supreme Court. Attorney General Richard Turner interpreted the provision this way, alerting Governor Ray that the appointments were “clearly void.”52 In Redmond v. Carter (1976), the court resolved the difficulty by concluding that, even if Section 18 rigidly purported to make the three judges ineligible (a matter about which a majority of the court declined to reach a conclusion), barring the three appointees from elevation on those grounds would violate their rights under the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment.53

Section 18’s third sentence follows from the declaration in Article V, Section 1, that the General Assembly may establish tribunals beyond those that the Iowa Constitution itself mandates. If the legislature does create such tribunals, it must (p. 237) establish the judicial officers’ required qualifications, manner of selection, compensation, and tenure in office.

Section 18’s fourth sentence requires an age-based system of mandatory retirement for all state judges. Section 602.1610 of the Iowa Code sets the mandatory retirement age at seventy-two years. This same sentence of Section 18 requires the legislature to provide retired judges with “adequate retirement compensation.”54 Sections 602.9101–9116 of the Iowa Code establish and regulate the state’s “Judicial Retirement System.”

Section 18’s final sentence allows the Iowa Supreme Court to assign temporary judicial tasks to retired judges, under such regulations as the General Assembly adopts. Section 602.1612 of the Iowa Code broadly authorizes a retired judge to be assigned “temporary judicial duties on a court in this state,” so long as the supreme court has “deemed [the assignment] necessary . . . to expedite the administration of justice” and so long as the judge has not elected to practice law.

Section 19.  Retirement and discipline of judges.

In addition to the legislative power of impeachment of judges as set forth in Article three (III), sections nineteen (19) and twenty (20) of the Constitution, the Supreme Court shall have power to retire judges for disability and to discipline or remove them for good cause, upon application by a commission on judicial qualifications. The General Assembly shall provide by law for the implementation of this section.

Iowa voters added Section 19 to the constitution in 1972, providing for the creation of a commission on judicial qualifications, authorizing the Iowa Supreme Court to discipline, retire, or remove state judges upon receiving a meritorious application from the commission, and instructing the General Assembly to adopt appropriate implementing legislation.55 The legislature responded by (p. 238) establishing a seven-member Commission on Judicial Qualifications and prescribing various procedures for its operations.56

In In re Carstensen (1982), the Iowa Supreme Court fielded its first disciplinary application from the commission. The case concerned a district judge who, in “blatant” violation of a rule promulgated by the supreme court, had not been filing timely and accurate reports regarding his judicial activities. A majority of the commission recommended that the judge be suspended without pay for thirty days, but a minority of the commissioners believed the commission lacked the authority to specify the particular sanctions that it believed were appropriate. The court concluded that Section 19 and its implementing legislation do implicitly authorize the commission to recommend particular sanctions, though the court emphasized that the court itself makes the final decision on its de novo review.


1  1857 Debates, supra Article I, note 3, vol. 1, pp. 115–17, 227. For part of the story on why the committee produced two competing proposals—an outcome that evidently frustrated the entire committee, with neither proposal commanding the full assent of any individual member—see id. at pp. 254–58.

2  1857 Debates, supra Article I, note 3, vol. 1, pp. 227–60, 430–46, 467–71. After the first round of debate, for example, the majority submitted a revamped draft of Article V, which would have vested the state’s judicial power “in a supreme court, district courts, circuit courts, and such other inferior courts as the General Assembly may establish” and which would have divided the state into three judicial districts, with each district itself then divided into four circuits. See id. at p. 259. Once the convention had become clogged with numerous competing drafts of Article V, the delegates opted to abandon the committee’s drafting work altogether and proceed simply by using the 1846 constitution’s text as their starting point. See id. at pp. 441–42.

3  1857 Debates, supra Article I, note 3, vol. 1, p. 438; see also id. at p. 462 (presenting Section 1 in the form that it takes today).

4  Iowa Code §§ 602.4102, 602.5101, 602.5103. See generally Rosemary Shaw Sackett & Richard H. Doyle, “History of the Iowa Court of Appeals,” 60 Drake Law Review 1 (2011).

5  Iowa Const. of 1846, art. VI, § 2.

6  1857 Debates, supra Article I, note 3, vol. 1, pp. 115–17.

7  1857 Debates, supra Article I, note 3, vol. 1, pp. 446–49, 462–67.

8  Iowa Code § 602.4101. The state maintains an online report titled “Chronological Chart and Tables of the Iowa Supreme Court: 1938 to Present,” which nicely illustrates the historic fluctuations in the court’s size and identifies each justice and his or her term of service. See http://www.iowacourts.gov/wfData/files/SupremeCourt/ChronologicalchartoftheIowaSupremeCourt.pdf.

9  Iowa Const. of 1846, art. VI, §§ 3, 4. The delegates to the 1846 convention thereby adopted the scheme proposed by the delegates to the Territory of Iowa’s first constitutional convention, held in 1844. At the 1844 convention, the scheme was the result of a compromise struck among delegates who disagreed about whether popular elections or legislative appointments were most likely to result in high-quality, unbiased judging. See 1844 and 1846 Fragments, supra Article I, note 3, pp. 103–07, 111–22.

10  1857 Debates, supra Article I, note 3, vol. 1, pp. 449–55; see also Iowa Const. of 1857, art. V, § 3.

11  Iowa Const. of 1846, art. VI, § 3.

12  Samuel L. Bray, “The Supreme Court and the New Equity,” 68 Vanderbilt Law Review 997, 1017–18, & nn. 112–13 (2015).

13  See, e.g., Iowa Const. art. V, § 6 (“The district court shall be a court of law and equity, which shall be distinct and separate jurisdictions. . . .”); Iowa Code § 602.4102(1) (“The supreme court has appellate jurisdiction only in cases in chancery, and constitutes a court for the correction of errors at law.”).

14  If the appeal in an equity case is from summary judgment, however, the court will not find the facts de novo; rather, its review is limited to correction of errors at law (Iowa Arboretum, Inc. v. Iowa 4-H Foundation, 2016; Lyon v. Willie, 1980).

15  The equitable prerequisites for obtaining injunctive relief are pushed aside, however, if the General Assembly “impose[s]‌ a duty to grant an injunction by specifying conditions in a statute” (Max 100 L.C. v. Iowa Realty Co., 2001).

16  For a lengthier list of equity and law actions, see the Iowa State Bar Association’s Appellate Practice Manual (2004), pp. 32–38.

17  Iowa Supreme Court, Supervisory Order (June 19, 2017), available at http://www.iowacourts.gov/wfdata/frame10109-1263/File303.pdf.

18  The Des Moines Register’s editorial board cited the Cedar Rapids case as a prime illustration of the need for giving the Iowa Supreme Court the authority to remove judges from office for good cause. Editorial, “Judges Rebuked,” Des Moines Register, June 20, 1971, at 12-T.

19  In Redmond v. Carter (1976), for example, the court took original jurisdiction of a “petition for supervisory review” challenging the eligibility of three district court judges to accept appointments to serve on the Iowa Court of Appeals.

20  See generally Hohl v. Board of Education (1959) (“Certiorari is the method of bringing the record of an inferior tribunal before the court for the purpose of ascertaining whether the inferior tribunal or body had jurisdiction and whether its proceedings were authorized. . . . The writ of certiorari is distinguishable from appeal in that certiorari prevents the body performing or exercising a judicial or quasi-judicial function from violating principle[s]‌ of jurisdiction or exceeding the scope of its authority, while appeal is aimed to relieve the individual litigant substantively or from mistake in applying adjective law.”).

21  The court has stated more broadly that administrative agencies are not “inferior judicial tribunal[s]‌” from which appeals can be taken directly to the state’s high court (Western International v. Kirkpatrick, 1986).

22  Iowa Const. of 1846, art. VI, § 4 (emphasis added).

23  1857 Debates, supra Article I, note 3, vol. 1, pp. 459–60.

24  Cf. Cooper v. Armstrong (1851) (“[S]‌o far as this court is concerned, it is clear that the constitution does not authorize legal and equitable claims to be blended together in one suit.”).

25  1857 Debates, supra Article I, note 3, vol. 1, p. 460.

26  Revised Code of Iowa (1860), § 2844 (“Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, . . . may be joined in the same petition. . . .”) (emphasis added); see also Cooper v. Erickson (1931) (holding that this statute bars a party from joining legal and equitable actions in a single petition).

27  Iowa R. Civ. Proc. 1.231 (originally adopted as Iowa R. Civ. Proc. 22 (1943)). For discussions of the rule’s enactment, see Johanik v. Des Moines Drug Co. (1945) and Dan C. Dutcher, “Joinder of Parties and Actions,” 29 Iowa Law Review 3, 9–10 (1943).

28  Accord Iowa Code § 602.6101 (“The district court has all the power usually possessed and exercised by trial courts of general jurisdiction. . . .”).

29  Iowa Const. of 1846, art. VI, §§ 3, 4.

30  See, e.g., Ala. Const. of 1819, art. V, § 16; Mo. Const. of 1820, art. V, § 4.

31  Iowa Const. of 1846, art. VI, § 6.

32  Iowa Const. of 1846, art. VI, § 4.

33  For the delegates’ debate about the number of districts the state should have prior to 1860, see 1857 Debates, supra Article I, note 3, vol. 1, pp. 456, 475, 507–09, 628–35. One of the central issues in that debate concerned whether judges, lawyers, and litigants would face undue difficulties if required to travel within large districts, especially in the less-populated western portion of the state.

34  1857 Debates, supra Article I, note 3, vol. 1, pp. 460, 472–75.

35  Op. Iowa Att’y Gen., 1970 WL 207598 (Mar. 3, 1970) (replying to Lucas DeKoster).

36  Op. Iowa Att’y Gen., 1971 WL 240842 (Oct. 19, 1971) (replying to John Mowry). For more on Iowa’s judicial nominating commissions, see Article V, § 16.

37  Op. Iowa Att’y Gen., 1975 WL 368757 (June 4, 1975) (replying to James Middleswart).

38  Iowa Const. of 1846, art. VI, § 5.

39  Act of Jan. 24, 1853, ch. 107, 1852 Iowa Acts 186.

40  1857 Debates, supra Article I, note 3, vol. 1, p. 478. In an ill-fated subsequent attempt to strike the position from the constitution, Wapello County’s George Gillaspy said that he “consider[ed] it a perfect sinecure, and an office of no benefit to the State.” Id. at p. 588.

41  For a portion of the delegates’ debate at the 1857 convention about whether to constitutionally mandate a prosecutorial position and whether such prosecutors should be elected on a district or county basis, see 1857 Debates, supra Article I, note 3, vol. 1, pp. 456–57, 475–77.

42  For an articulation of reasons for discarding Section 13, see Editorial, “County Attorney Reform,” Des Moines Register, Sept. 23, 1968, at 6.

43  Iowa Code §§ 331.751–59.

44  Iowa Code § 331.753.

45  1857 Debates, supra Article I, note 3, vol. 1, pp. 460–61, 477.

46  See “Iowa Adopts Society’s Judicial Selection and Tenure Plan for All State Judges,” 46 Journal of American Judicature Society 1, 1 (1962) (“Iowa became the first state in the nation to amend its constitution to provide for nonpolitical selection of all of its state court judges on June 4, 1962.”). As Part I of this book explains, the movement toward merit selection traces its roots to Albert Kales, the co-founder of the American Judicature Society. See generally Todd E. Pettys, “Judicial Retention Elections, the Rule of Law, and the Rhetorical Weaknesses of Consequentialism,” 60 Buffalo Law Review 69, 74–75 (2012).

47  Iowa Code §§ 46.14A, 46.15.

48  The Office of the Attorney General has issued numerous opinions concerning these statutory regulations. See, e.g., Op. Iowa Att’y Gen., 1994 WL 328333 (June 20, 1994) (replying to Clark E. McNeal) (“[W]‌e conclude that a member of a judicial nominating commission who resigns prior to the expiration of his or her term is not eligible for nomination to fill a vacancy during the remainder of the unexpired term, even if the vacancy occurred after the commissioner’s resignation.”) (interpreting Iowa Code § 46.14).

49  Op. Iowa Att’y Gen., 1996 WL 769291 (Dec. 18, 1996) (replying to R. Keith Richardson).

50  For a history of the 2010 retention election, see Todd E. Pettys, “Letter from Iowa: Same-Sex Marriage and the Ouster of Three Justices,” 59 Kansas Law Review 715 (2011). For a history of the retention election of 2012, in which a fourth Varnum justice was retained, see Todd E. Pettys, “Retention Redux: Iowa 2012,” 14 Journal of Appellate Practice & Process 47 (2013).

51  Op. Iowa Att’y Gen., 1969 WL 181592 (May 29, 1969) (replying to Donald E. Voorhees).

52  Op. Iowa Att’y Gen., 1976 WL 376052 (Oct. 18, 1976) (issuing the opinion on his own initiative to alert Governor Ray of “a grave problem”). Fielding an unrelated inquiry two years later, Turner concluded that Section 18 renders judges ineligible to serve on the board of directors of the Judicial District Department of Correctional Services. Op. Iowa Att’y Gen., 1978 WL 17392 (Apr. 3, 1978) (replying to Roland McCauley).

53  Concurring specially in the judgment, another group of justices said that, rather than decide the case on federal constitutional grounds, the court simply should have rejected the rigid interpretation of Section 18.

54  For an opinion from Attorney General Richard Turner regarding this requirement, see Op. Iowa Att’y Gen., 1967 WL 167234 (Nov. 21, 1967) (replying to Eugene M. Hill) (“The State cannot fulfill th[is] duty by a system which requires contribution by the judiciary in order to obtain retirement compensation, whether that system is optional on the part of the judges or is enacted before or after the effective date of the constitutional amendment.”).

55  In 1971’s In re Municipal Court of Cedar Rapids, the Iowa Supreme Court had held that Article V, Section 4, did not give the court the power to remove judges for good cause. The Des Moines Register’s editorial board cited that case as a prime illustration of the need for strengthening the supreme court’s hand. Editorial, “Judges Rebuked,” Des Moines Register, June 20, 1971, at 12-T. In an editorial appearing shortly before Iowans went to the polls to decide whether to adopt Section 19, the Register’s editorial board cited California’s Commission on Judicial Qualifications as a model for Iowa to follow. Editorial, “Power to Discipline Judges,” Des Moines Register, Sept. 2, 1972, at 4.

56  Iowa Code §§ 602.2101–2107.