As AP reporter Ryan Foley first reported yesterday, Melissa Nelson–the “irresistible employee”–has filed a second petition for rehearing. That’s highly unusual. Once a court has taken the rare step of rehearing a case and then reaffirms its earlier decision, there is virtually no chance that it will consider the case a third time. But that’s what Nelson is asking the Iowa Supreme Court to do.
In December of last year, the Iowa Supreme Court ruled unanimously against Nelson, and last Friday, after agreeing to rehear the case three weeks ago, the justices voted the same way. To be sure, the justices had a slight difference of opinion this time around. In December, everyone signed onto Justice Mansfield’s opinion, and this time Chief Justice Cady wrote a concurring opinion that Justices Wiggins and Hecht joined. But Justice Mansfield’s opinion is still the majority opinion (three other justices signed onto it), and that opinion remained largely unchanged.
Nelson’s second petition is focused entirely on Chief Justice Cady’s concurrence, and her attorney refers to it over and over as the opinion of the “Court.” Here’s the problem with that: A concurring opinion that doesn’t garner a majority of the justices is not–by definition–the opinion of the Court. It’s the minority view. And even if Chief Justice Cady and Justices Wiggins and Hecht agree with her critiques, the outcome of the case would be the same. Justice Mansfield’s opinion would be, as it is now, the law of this State.
Nevertheless, Nelson asks the Court to reconsider several aspects of Chief Justice Cady’s opinion, including the characterization of Nelson’s relationship with Dr. Knight as a “consensual” one. Nelson’s attorney says “[t]hat word is dripping with sexual innendo [sic].”