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Iowa Supreme Court Chief Justice Mark Cady

posted on February 24, 2012

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Justice for all.  Constitutional premises being tested by societal changes and economic stresses.  Perspectives from Iowa Supreme Court Chief Justice Mark Cady on this edition of Iowa Press.

Borg: Iowa's pinnacle of justice, the Supreme Court, is getting more attention these days and that is partly because divisive societal issues are coming to the high court for constitutional interpretation.  And it's partly because the justices are proactively becoming more extroverted, inviting Iowans to get to know us, even conducting some formal court hearings in communities rather than the court's statehouse chambers.  And that is after voters reacting to a controversial decision involving same-sex marriage removed three justices, including the chief justice, from the court.  And it is also because the court's new Chief Justice Mark Cady is reminding legislators of an old axiom -- justice delayed is justice denied -- warning that is what is happening because of court system underfunding.  The Iowa court system's workload over the past quarter century is up 50%.  But the court's workforce is down by 16.5%.  Justice Cady, welcome back to Iowa Press.  We'll be talking about some of those things.

Chief Justice Cady: Thank you.  It's nice to be here.

Borg: And across the Iowa Press table, Associated Press Senior Political Writer Mike Glover and Radio Iowa News Director Kay Henderson.

Glover: Chief, let's go back to your speech you gave to the legislature in January.  You told the legislature that the courts can no longer continue to limp along with a status quo budget.  What would that mean for the typical Iowan who doesn't really relate to the courts that closely?

Chief Justice Cady: The access to justice is just a very, very important concept and it has deep consequences to the public in general.  And there's too many occasions when we are not doing the work that we know that we should be doing and we're not doing some work in a manner that we know it needs to be done.  It is taking us longer to get our cases out.  It is taking longer for us to reach our cases.  The staff that we have is not getting to the cases as we have been able to do in the past.  And what that means is that Iowans that are in our court system are in our court system longer and are burdened by that process.

Glover: What do you need?  What is the answer to your problems?                                                                                                              

Chief Justice Cady: Well, the answer, quite frankly, is just a little more money.  We have a court system, Mike, that operates on a budget of $154 million.  We bring into this state $146 million and we bring into the cities and the county government another $17 million.  We bring in more money than we actually spend.

Glover: And what is a little more money that you need?

Chief Justice Cady: Well, we need $10 more million this year and $10 million in addition next year and that is going to allow us to open up our part-time clerks offices to a full-time level in every county in this state.  It is going to allow us to add back some personnel so we can get to these cases and get them out earlier.

Borg: So that's $20 million more in two years.

Chief Justice Cady: Over a two year period, exactly.

Henderson: During your Condition of the Judiciary speech earlier this year you made the argument that courts have an impact on the economy.  If you could explain that in brief detail.  And also, why did you choose to sort of insert the courts in the legislative debate that is occurring about the state's economy and the proper way to boost the state's economy?

Chief Justice Cady: Well, I just think it is very important for Iowans to understand the full value of its court system.  And too often we are just looked at as decision makers.  But what the courts do in a very dramatic way is provide the foundation of stability upon which our economy functions, upon which business depends upon to operate.  And it is the same stability that we provide families throughout this state when they are in need of help, the same stability and lifeline that we give our troubled youth when they have to turn to our court system.  And it is an extremely important concept and businesses around the country pay attention to it.  They pay attention to whether our court system, a state court system, can deliver a stable way of life.

Borg: I'm wondering, in making the case for a strong, effective, efficient court system being a catalyst -- and that is the word you used in your Condition of the Judiciary message -- catalyst for economic development.  Given the state of the underfunding, as you say it is, is Iowa's court system right now or on the verge of being a drag on economic development?

Chief Justice Cady: Well, we really are at a precipice.  I think we are at a point where we need to either stand up and support this court system so that it can function in a way that will dramatically impact Iowa's future in a very positive way or we can continue down what has been a real struggle for decades of trying to get funding to do the work that we know Iowans deserve to have done.

Borg: Just more precise with the question -- is it a drag right now or on the verge of being a drag?

Chief Justice Cady: I think so.  We are showing slippage.  We are showing, Woodbury County for instance, has documented that instead of disposing of divorce cases within a period of four to six months they are now going from nine months and beyond.  We are starting to show that.

Glover: Let's talk about the elephant that is on the dining room table that people don't seem to want to talk about.  Four members of the Iowa Supreme Court are up for retention this year.  What are you doing to promote their retention?  You've done some things, you're holding oral arguments around the state.  What are you doing?

Chief Justice Cady: Well, Mike, I am very concerned about what might lie ahead only because I realize what happened a year and a half ago. But I know that Iowans want to have a court system that functions and we are working very, very hard to give Iowans what they deserve and should demand and that is a court system that meets their needs.  And I think the best thing that our court can do and every member of our court can do and every member of our judicial branch can do is deliver to Iowans the court system that they have and show Iowans exactly what we do and how we do our work.

Glover: How limited are you?  I mean, you can't go to the Bar Association and say you need a campaign contribution.  How limited are you in trying to promote this retention?

Chief Justice Cady: As a court and as a branch of government I think that we can promote ourselves in a way that we have always done.  We're just doing it a little bit different.  We are reacting to the responsibilities as defined by the times in which we live.  And what we are doing -- we have always been an open, transparent court system but it is not enough any longer to discuss the condition of the judiciary once in January and then we go on and do our work the rest of the year.  We need to get out to show Iowans what they really have.  And more importantly the potential of what we can deliver to them with just a little more assistance and a little more support.  We can't be taking our courts down.  We need to be lifting them up.

Henderson: What is your judgment of the political climate for justices?  Last year in the legislature there was talk about impeachment among a small group that wanted to pursue that avenue.  Others were talking about changes in the process for nominating judges.  Do you think that the climate has changed?  Neither of those ideas are being pursued by legislators this year.

Chief Justice Cady: Well, I don't know.  It is hard for me to tell.  We're not politicians and we try to go about our work staying out of that.  But I do know that the public wants to have a court system that works and that is what I want to focus in on.

Borg: But I noticed in your State of the Judiciary message to the legislature, you said, my door is always open, I have office hours, come see me, come to my office.  Has anyone taken you up on that invitation, legislators?

Chief Justice Cady: They have.  Not on a real regular basis but we have followed through with that commitment.

Borg: Has the rapport improved?

Chief Justice Cady: It really has, Dean.  All I'm trying to do is create an understanding of our court system and I'm trying to create a relationship with the other two branches of government that will allow us to work and function in a way that the public deserves to have our government work.

Glover: And some of the things you've done, as I mentioned earlier, you've been holding oral arguments around the state in various places, you've been holding arguments in the evening on some important cases so the public, it makes it easier to attend.  Talk about some of those things that you have done.

Chief Justice Cady: Well, I'd be glad to, Mike, because it has impacted us.  It has allowed us to see that there is a strong public desire to have a court system that is open and transparent and the public enjoys seeing this court operate.  And I think it provides the necessary confidence and trust that the public needs and should have in a court system.  We feel very good about getting out around the state and we're going to continue to do it.  We go to Council Bluffs in a short period of time and then the first part of April we'll be over in Davenport.  We're going to continue to do that.  It is what our times demand us to do.

Henderson: Other courts in other jurisdictions and the federal court level are addressing the same issue that your court addressed in 2009 with the gay marriage ruling, which you authored.  I read other political reporters and what they are doing to inform what I'm doing as well.  Do you read the opinions that other courts have issued on this issue?  And do you have any comparisons that you might share?

Chief Justice Cady: Well, I do keep up with all areas of the law as I can.  And I certainly don't study these opinions in the manner that we do when we use opinions to make our decisions.  But I certainly see that this was and continues to be a very difficult issue.  It was for Iowa.  It was for other states.  And it is in the nation.  And courts continue to wrestle with that issue.  And that is the way our court system has functioned from the beginning.

Borg: In past conversations with you and here again earlier in this conversation today you have mentioned juvenile justice and the importance of it.  In fact, in your speech to the legislature you call the courts a crucial role in providing dependable bridge to opportunity.  What do you mean by that, a dependable bridge to opportunity, the court system for youth?

Chief Justice Cady: Well, if there is one time that we have to really make a difference in a person's life it is still when they are at the age of the juveniles that we deal with.  And it is critical that that time period be used in a very positive way to do the best we can to turn that life around.

Borg: Are you doing the best you can now?

Chief Justice Cady: No.  We are not.  And that is a real critical concern of mine.  We have in many, if not most of the districts around this state, our juvenile probation officers who work closely with our juvenile judges to try to work with these kids, they do not have enough time because of the cuts that we have been forced to make to meet with first-time juvenile offenders face-to-face.  If we can't even afford to have our juvenile probation officers meet with these troubled kids face-to-face then we're not doing the job that we need to be doing.  We're not impacting that child and we are increasing the likelihood that that child is going to become an adult offender.

Glover: But I'd like you to step back and look at the bigger picture if you could.  You have talked about the effect that these cuts have had on the juvenile justice system.  If you could reshape the court system, are we following the right model?  I mean, this was a model that was kind of started in like the 18th century.  What would you change?  Do we need to rethink the way we're delivering justice in this state?

Chief Justice Cady: That is really a great question.  And we do and we are.  In a couple of weeks we're going to be unveiling the civil justice task form report that is going to outline this broad plan that you mentioned.  And we really do need to think about how we can better meet the demands of our changing society.  I have a vision that this court system can do so much more.  We can be providing, for instance, specialty courts in business, for instance.  We have an agricultural economy that is ready to go global and we can have specialized business courts that will be set up to meet the demands of that industry.

Borg: Aren't you really forecasting, though, more money for the courts, more than the $2 million that you're already asking for?

Chief Justice Cady: Perhaps.

Borg: $20 million I guess it was.

Chief Justice Cady: Well, perhaps.  But when we're dealing with a branch of government that already is operating, bringing in more funds than it needs to do its work, all we're asking for is just a little bit more.  But that small fraction has such great possibilities. And that is what I really am trying to promote.  We have an insurance industry in this state that could benefit from having courts that are devoted to the work that they do.  If these courts can be staffed with judges that are experts in the issues that these industries confront just like the medical profession uses specialties in the way they do their work.

Glover: And are Iowans ready for that kind of a change?  That is a seismic shift in what courts do.

Chief Justice Cady: Mike, we need to be ready for that change because it is coming.  And if it is a change, it's a change that we need to embrace.  We need to look out and not how we used to do business but how we can do business tomorrow that is going to meet the needs of everyone in this state, in every segment of this state.  But we can't be focusing too much on providing the needs for the business community to help bring this economy along when we can't even do the work in the right way to take care of our kids that are in our court system.  So it does cost money but we're not talking about a lot of money and it is the kind of money that is spent in the best way possible.

Henderson: Politicians like to talk about the brain drain, about how young graduates in Iowa leave to pursue careers in other areas of the country.  I'm wondering if it is more difficult now to recruit people to serve in the judiciary?

Chief Justice Cady: I worry about that all the time.  It is a different climate.  But all I can do and all our court can do is improving the operation of our court, getting our message out about the value of our court, how we contribute to society in such a broad and important way and if all branches of government can work in the way they were set up to work then we get Iowa to move forward in a way that is going to be attractive for people that want to be a part of -- for business to be --

Henderson: You're talking about this business court that would deal with civil cases only, correct?

Chief Justice Cady: Correct.

Henderson: Do you have judges already among your ranks who would be able to have the expertise to hear those cases?  Or do you need to recruit new judges to hear those cases?

Chief Justice Cady: I think we, I certainly think we have the capable judges that could be retooled and put into those court systems, yes.

Borg: We constantly hear about the disparity in racial population of the prisons and it comes through the court system, in the court system too.  You told Kay that you worry about retaining judges.  Do you also worry about that disparity?  And is there anything that the court should or could be doing?

Chief Justice Cady: Well, yes.  There is a lot of things that we need to be doing.  But in the area that you're talking about, Dean, we need to have a better commitment to finding lawyers to represent all criminals in our court system.  It is an underfunded system.  It does not attract enough lawyers to do the work that is out there.

Borg: Public defenders.

Chief Justice Cady: Public defenders.  They need a shot in the arm too.  We have gone along too long without it.

Borg: Is that why?  Does that contribute to the racial disparity in prison?

Chief Justice Cady: No.  I'm not suggesting that.  That contributes to a problem that is across the board.

Glover: I'd like you to do a little navel gazing if we could.  You have an institution that is under a lot of pressure.  You've got three new members, relatively new members of the court.  You have got four members of the court that face retention election this year.  What is the atmosphere within the court?  Is this a congenial atmosphere?  Do you folks get along okay?

Chief Justice Cady: It has been an adjustment but we have an outstanding court and I am so proud of the way we have been able to pull together and do the work that has been assigned to us.  We have a great interaction in our decision making.  We have a commitment from every one of the justices to move this court forward.

Glover: And I'd like to turn Kay's question around just a little bit.  You have a court that you say is functioning pretty well right now.  A lot of the bad things that we have talked about didn't happen.  And you seem to be moving forward.  You have weathered this crisis haven't you?

Chief Justice Cady: Well, we have and that is a tribute to the system that we have set up.  We have a merit selection process that stepped in, put on three outstanding justices on our court and we struggled.  We have had to resubmit a lot of our cases.  Iowans have had to wait because of this process longer and longer and longer.  They have had to go to greater expense to have their cases reargued.  It was quite destructive in many ways.

Glover: But you got through it.

Chief Justice Cady: But we got through it and now we need to continue to go forward.

Glover: That which does not destroy me makes me stronger?

Chief Justice Cady: Well, it does.  And it has made us much stronger and our resolve is even stronger.

Henderson: You are the head of the judicial branch of state government.  You have talked about your relationship with the legislative branch of state government.  What is your relationship with the executive branch of state government?  The person who heads that branch, Governor Terry Branstad, is the person who appointed you to the court in 1998.

Chief Justice Cady: Well, my mission is to work with all of the branches of government, the other two branches of government.  And I am very pleased with the way that the Governor has worked with me and has addressed our budgets concerns up to this point.  The public deserves to have a government that works and I want to work together.  I'm going to do everything I can to work together with the other branches of government.  I want to create an understanding that our courts can be an important part of this total operation of this government and I'm looking for every opportunity to do that.

Henderson: In regards to redesigning the system, you talked about establishing a different kind of court, specialized court.  Does Iowa need all of the clerks of court offices that are around the state, many of which have been closed for business because of budget cuts?

Chief Justice Cady: Well, those types of decisions are not necessarily in our hands.  And as long as our system is set up to provide a courthouse in every county, that county deserves to have that courthouse functioning on a full-time basis.  Courts are too important to be a part-time part of our communities.

Glover: But when you talk about that -- Iowa's whole county system was kind of based on the idea that you had to have a county seat within a day's horse ride.  Is it time to redesign all that? Do we need 99 counties?  Do we need 99 courts?  Or do we need to rethink that?

Chief Justice Cady: We always need to be looking at how we can do our work better.  We understand that and we know that.  But how our government is set up, it's just not our court in every county, there is a government in every county and the court is a part of that government.  So, I mean, if the other branches of government want to talk about this, the court will certainly be involved and help out.

Henderson: Not much time to answer this question, about half a minute.  But you have been in this job for a little bit more than a year.  What have you learned about yourself that you didn't know?

Chief Justice Cady: Well, I've learned that I can get more out of a day than I used to.  I'm in this job because I love being on the line and working as a judge with all the other members of our judicial branch and I'm not there quite enough now.  I'm out doing other things.  But as I said earlier, we have to respond to what our time gives to us and I think it is important for me to also be a messenger and a supporter of this court system.

Borg: The message that I have to deliver now is that we're out of time.

Chief Justice Cady: I've enjoyed this.  Thank you.

Borg: Thanks so much for being with us.

Chief Justice Cady: Thank you.

Borg: Next week on Iowa Press, a conversation with Iowa State University's new president Steven Leath.  After a month in his new job we'll be asking what he sees in Iowa State's future.  You'll see President Leath of Iowa State on Friday at 7:30 on Iowa Public Television.  But then on Sunday, March 4th Iowa Press will be airing at noon on IPTV World channel because of special festival programming.  I hope to see you then.  I'm Dean Borg. Thanks for joining us today.

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