Iowa’s Judicial Branch flunked a recent transparency and accountability study because of barriers to public access to information, a lack of legal requirements for judicial evaluations and concerns about potential conflicts of interest.
Those concerns include limited access to judicial officers’ asset disclosures, which can reveal potential conflicts of interest and which aren’t audited for accuracy, and a lack of restrictions on judges returning to the private sector after serving on the bench.
The failing grade came despite a recent milestone in the judicial branch, which completed a statewide rollout of its Electronic Document Management System earlier this year. The system makes public court records available online. But full access still is restricted to judges, lawyers, court administrators, aggregators and those involved in cases, not the general public.
IowaWatch assistant editor, data analyst and reporter Lauren Mills participated in the Iowa portion of this investigation, asking predetermined questions, doing follow-up interviews, responding to investigation organizers’ requests for more information, re-checking data and writing this story for the Center for Public Integrity’s report.
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How We Investigated State Integrity
The State Integrity Investigation, released last month by the nonprofits Center for Public Integrity and Global Integrity, examined various measures of transparency and accountability in state government across thirteen categories. IowaWatch was involved in conducting the survey of Iowa government agencies.
The judicial branch was one of two categories that earned a failing grade for Iowa. The other was for lobbying regulation.
Multiple efforts by IowaWatch to reach out to the judicial branch for a comment on its failing grade were turned down by Steve Davis, communications director for the judicial branch. However, Davis responded to questions for the survey earlier in the year.
The survey examined accessibility both in law, how access is protected in the legal code, and in practice, how the law is carried out. In some cases the actions of a single judge can cut off access to the court despite laws in place to protect that access.
District Judge James Richardson was able to derail coverage of a May 2013 vehicular homicide trial in Audubon County by forbidding note taking by a newspaper reporter for the Daily Times Herald in Carroll.
“The reporter was writing in a notepad and the judge said he couldn’t. If jurors saw him writing it would bias the jurors because they would think what was being said was more important,” Jared Strong, a reporter at the Herald, said.
Note taking is common in court coverage. In fact, court rules allow live-blogging, video and still cameras in the courtroom. However, provisions within the expanded news media coverage law allow magistrates and judges to attach conditions or limit coverage for reasons including protection of rights to a fair trial.
Judge Richardson stuck to the decision despite attempts by the chief district judge, Jeffrey Larson, to reverse the rule. Strong said the paper eventually had to threaten to sue before Richardson agreed to allow the reporter, a summer intern who had just started his stint at the paper, to take notes in the courtroom as long as members of the jury couldn’t see him.
Strong said most of his interactions with the courts have been positive, and the ban was “an isolated instance with a judge not used to having media coverage.”
Media coverage of court cases can provide useful insights to the public that can’t be accomplished by reading records, said Zack Kucharski, executive editor of The Gazette in Cedar Rapids, who serves as expanded media coordinator for the Sixth Judicial District in Eastern Iowa.
“People can understand the courts at a much better level if they watch a case unfold,” Kucharski said. “You’re able to watch interactions, you’re able to watch emotions, you’re able to understand the variety of challenges that are going on in the courtroom at any given time.”
CONFIDENCE IN THE COURTS
Questions about disclosure of judge’s assets racked up the most low scores in the Center for Public Integrity and Global Integrity survey because of barriers to public access to reports about those assets and the absence of auditing.
Asset disclosures are annual forms filed by judges and magistrates containing a list of businesses, outside occupations or professions and any sources of income they have that are greater than $1,000.
The disclosures can reveal potential conflicts of interest, showing what financial stakes a judge or magistrate might have in a case.
The disclosures in Iowa did not meet the survey’s requirements for easy access. The documents are not available for free online — requesters must contact the Iowa Supreme Court clerk of court’s office and copied documents can incur a printing fee — and do not meet requirements for open data formats, which includes things like machine readability.
Additionally, the forms are not audited for accuracy although staff verifies that the forms are turned in, Davis, the judicial branch’s spokesperson, said in an email for the survey.
Tardy filers receive a reminder by their court administrator, Davis said. For those who again fail to submit the document, the Judicial Qualifications Commission sends a final email warning noting that failure to respond could result in action, including possible discipline, by the commission.
Johannes Tonn, a research manager with Global Integrity who worked on developing the survey, said the focus on asset disclosures, both within the judicial branch and in other areas of government, is a key part of evaluating trust in government.
It comes down to understanding motivation, he said.
“Making sure that judges are clear about where their financial interests lie and making people see that they are impartial and they aren’t deciding in favor of particular interest or entity is definitely important so people can have trust in the impartiality of judges,” Tonn said.
A judge is responsible for recusing him or herself when a conflict of interest arises. However, it could be beneficial for lawyers to have easier access to those documents, Maura Strassberg, professor of law at Drake University, said in an interview for the survey.
“Lawyers do have the ability to request that a judge recuse themselves and the more information you have the better,” she said.
Paul Gowder, associate professor of law at the University of Iowa, said in an interview for the survey that the Iowa judicial system is open and fair and instances of corruption were unlikely. However, he said publishing the disclosures could protect people’s confidence in the courts.
“Certainly the judges have some privacy interest in their financial affairs, but given the strong interest that we have in the legal community in making sure that judges and the courts are free of the appearance of a conflict of interest, it would certainly be preferable to make them as publicly available as possible,” he said.
RETURNING TO THE PRIVATE SECTOR
Once a judge leaves the bench, he or she is free to return to the private sector, which knocked points off the judicial branch’s score in the integrity survey.
The survey required a cooling-off period for state-level judges before taking a private sector position that could present a conflict of interest, like trying to influence former colleagues. Work in an unrelated field did not require restrictions.
Iowa law does not limit a judge’s post-bench work in the private sector, unlike the situation facing state officials and employees in the legislative and executive branches who are prohibited by law from entering into certain private sector lobbying jobs for two years after leaving a government position.
In an interview for the survey, former Iowa Supreme Court Justice David L. Baker said judges are restricted from practicing while on the bench, but he didn’t see an issue with judges return to law practice afterwards.
“I don’t think if I go argue a case in front of a judge that I have any influence over that judge,” Baker said.
He said judges don’t work alongside members of the executive or legislative branches so they do not have influence over members of those branches that could be abused if a former judge takes up a lobbying position.
“It’s not the same as a top staffer or a legislator leaving the legislature and wanting to come back and lobby,” he said.
Every two years, the Iowa State Bar Association publishes judicial evaluations of judges standing for retention. The association has conducted the reviews since 1964. However, Iowa Code does not require that evaluations take place or be made public.
“What we are saying is that everyone needs to see in black and white, in a legal format, what are the rules that we play by,” Tonn said. “The way we measure accountability is by being very clear. You could still do better by actually having it codified in the law.”
Bruce Walker, current bar association president, said the survey does what it is intended to do: provide voters with credible information. Although the evaluation is not legally mandated, Walker said he saw no reason why the association would stop producing the reports in the future.
Alaska, which besides receiving the best grade overall in the integrity survey, received the best grade for its judicial system — a B minus. According to the survey, the constitutionally mandated Alaska Judicial Council performs the judicial performance evaluations.
The evaluations include input from judges, attorneys, peace officers, social services officials, jurors, court employees and attendees of public hearings. Results are available online as well as in voter pamphlets available at the polls.
In Iowa, evaluations are filed by member attorneys who appear frequently before the judge. Results are published on the bar association’s website and made available to the media.
In an interview for the survey, past bar association president Joe Feller said the bar’s evaluation isn’t influenced by outside factors because the association is independent from state entities and the judicial branch.
“The public can have the assurance that the evaluations that we do are truly reflective of the opinions and sentiments of the members of our bar association that work with these judges,” he said.
ONLINE SYSTEM EVOLVING
The court’s Electronic Document Management System was implemented county-by-county beginning in 2010 and reached the final counties — Allamakee, Chickasaw, Howard and Winneshiek — this year. The system makes court documents more accessible to those within the court system by putting them online.
But online access is restricted to judges, lawyers, court administrators, aggregators and those involved in a case. The public still needs to visit a computer kiosk in the courthouse in the county that originated document.
Rox Laird, a recently retired editorial writer with the Des Moines Register and past president of the Iowa Freedom of Information Council, said the court was concerned about security and privacy issues caused by putting so much information online.
From the time e-filing was established in Plymouth County in 2010 to the point at which the final counties came on board this summer, nearly 2 million cases had been filed, including 6.5 million documents, by almost 88,000 users, according to a press release.
“It’s one thing to say you can go to Sac County and ask for a court record or maybe a divorce case or a lawsuit that involves financial records,” Laird said. “You’d have to drive to the courthouse in Sac County and ask for the record and look at it there and make copies. If this is all online, for all 99 counties, the court is worried about these records being scraped by different entities — businesses, scammers, you name it.”
Laird said it was an evolutionary process, with those filing information getting up to speed on how to file records to ensure confidential information is protected before expanding access to public records. He said efforts were underway to expand access to Iowa journalists.
Kucharski, of The Gazette, said he could go to the courthouse, walk around the file cabinets and “pretty much just look at anything you wanted” when he started as a reporter 18 years ago.
The online database, with its current restricted access, is a trade-off, he said. Reporters are able to access a synopsis of cases quickly, without the restrictions of courthouse hours, but also without the full detail that comes in complete reports.
“In some regards, I think the Iowa court system is ahead of the curve, but there’s an expectation to always do more,” he said. “You look at some of the technology that’s in place in some of the courtrooms, while we have courthouses across the state that don’t even have metal detectors yet.”
STILL A WAYS TO GO
Tonn, of Global Integrity, said the true value of the integrity study lies not in a state’s score but in the data itself and the discussions it can ignite. Information on each of 245 indicators used to evaluate government transparency in all 50 states is available online.
“It is important for government officials and legislators and journalists to be able to dig into the data and see, ‘this states does this differently and seems to do better. Maybe we should try that,’” he said.
Kucharski said the survey points out areas that still need some work and increases the expectations people have for holding public officials accountable.
“While Iowa’s laws have been good, they can always be better. And frankly, the more that there’s an aura of transparency I think the more effective government is,” he said.
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This IowaWatch story was republished by the Des Moines Register, The Gazette (Cedar Rapids, IA) and The Hawk Eye (Burlington, IA) under IowaWatch’s mission of sharing stories with media partners.