IN THE IOWA SUPREME COURT ______NO. 14-0178 ______
DANNY HOMAN, STEVEN J. SODDERS, JACK HATCH, PAT MURPHY, and MARK SMITH,
Plaintiffs-Appellees,
v.
TERRY BRANSTAD, GOVERNOR, STATE OF IOWA and CHARLES M. PALMER, IOWA DEPARTMENT OF HUMAN SERVICES DIRECTOR,
Defendants-Appellants. ______APPEAL FROM THE IOWA DISTRICT COURT FOR POLK COUNTY THE HONORABLE SCOTT D. ROSENBERG ______
APPENDIX ______
THOMAS J. MILLER ATTORNEY GENERAL OF IOWA
JEFFREY S. THOMPSON Solicitor General of Iowa
MEGHAN L. GAVIN TIMOTHY L. VAVRICEK Assistant Attorneys General Iowa Department of Justice Hoover State Office Bldg., 2nd Floor ELECTRONICALLY FILED JUL 23, 2014 CLERK OF SUPREME COURT 1305 East Walnut Street Des Moines, Iowa 50319 Ph: 515-281-6858 Fax: 515-281-4209 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] ATTORNEYS FOR DEFENDANTS- APPELLANTS
ii CERTIFICATE OF FILING
On the 23rd day of July, 2014, I, the undersigned, do hereby certify that I or someone acting on my behalf did electronically file through the
Iowa Court System the Appendix.
/s/ Meghan Gavin MEGHAN GAVIN Assistant Attorney General
iii TABLE OF CONTENTS
Page No.
Relevant Docket Entries:
1. Relevant Docket Entries ...... 1
Pleadings, Orders and Other Lower Court Filings:
2. Petition (January 2, 2014) ...... 2
3. District Court Order (January 10, 2014) ...... 15
4. Application for Preliminary Injunction (January 10, 2014) ...... 17
5. Motion to Dismiss and Supporting Brief (January 21, 2014) ...... 19
6. Resistance to Petition for Preliminary Injunction and Supporting Brief (January 21, 2014) ...... 38
7. District Court Order (January 23, 2014) ...... 47
8. Resistance to Defendants’ Motion to Dismiss (January 24, 2014) ...... 49
9. Substituted Affidavit (January 27, 2014) ...... 60
10. Defendants’ Reply to Plaintiffs’ Resistance to Defendants’ Motion to Dismiss (January 31, 2014) ...... 63
11. Hearing Transcript ...... 77
12. Defendants’ Exhibits A & B submitted at hearing:
Exhibit A – Affidavit of Jean M. Slaybaugh; 2013-2015 Collective Bargaining Agreement; Grievance Notice & Form ...... 123
Exhibit B – Affidavit of LaVerne Armstrong ...... 382
iv 13. Ruling and Order on Plaintiffs’ Application for Preliminary Injunction and Defendants’ Motion to Dismiss (February 5, 2014) ...... 384
14. Defendants’ Application for Appeal in Advance of Final Judgment (February 7, 2014) ...... 403
15. Supreme Court Order (February 21, 2014) ...... 419
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5CV03 IN THE IOWA DISTRICT COURT FOR POLK COUNTY
MARK SMTH DANNY HOMAN 05771 EQCE075765 JACK HATCH PAT MURPHY STEVEN SODDERS ORDER
VS.
TERRY BRANSTAD CHARLES M PALMER
Plaintiff's Petition For Declaratory Judgment, Injunctive Releif, and Writ of Mandamus comes to the attention of the Court. Upon Review of the file, it is ordered:
This is not a case involving an item veto by the Governor. Therefore, it does not fall within the scope of the administrative order requiring expedited disposition of such cases. However, the district court will attempt to expedite this case within its ordinary process.
This case is assigned the Hon. Scott D. Rosenberg, Judge. The parties shall contact Judge Rosenberg for the scheduling of this matter.
So Ordered.
IT IS SO ORDERED ON THIS DAY 01/10/14.
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State of Iowa Courts Case Number Case Title EQCE075765 DANNY HOMAN ET AL VS TERRY BRANSTAD ET AL Type: OTHER ORDER So Ordered
Electronically signed on 2014-01-10 08:38:00
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IN THE IOWA DISTRICT COURT FOR POLK COUNTY
DANNY HOMAN, STEVEN J. SODDERS, JACK HATCH, PAT MURPHY and Case No. EQCE075765 MARK SMITH Plaintiffs, v. APPLICATION FOR PRELIMINARY INJUNCTION WITH NOTICE AND REQUEST FOR HEARING TERRY BRANSTAD, GOVERNOR STATE OF IOWA and CHARLES M. PALMER, IOWA DEPARTMENT OF HUMAN SERVICES DIRECTOR Defendants.
COMES NOW the Plaintiffs and for their Petition for Preliminary Injunction, pursuant to
Iowa Rule of Civil Procedure 1.1502, respectfully states to the Court the following:
1. On January 2, 2014, Plaintiffs filed a Petition for Declaratory Judgment, Injunctive Relief
and Writ of Mandamus, accompanied by an Original Notice in the Iowa District Court for
Polk County. Attached hereto as Exhibit A.
2. The action of the Plaintiffs will succeed on merit, as demonstrated in the Plaintiffs Brief
in Support of Petition for Preliminary Injunction, which is attached hereto.
3. The intentional impoundment of funds by the Defendants in this matter will work
irreparable injury to the Plaintiffs.
4. This Application has not been presented to or refused by any judge or justice.
5. The Court has jurisdiction over this dispute, pursuant to Iowa Rules of Civil Procedure
1.501-1.511.
6. This matter should be set for hearing immediately.
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WHEREFORE, Plaintiffs pray for a temporary preliminary injunction, pursuant to Iowa
Rule of Civil Procedure 1.1502, restraining Defendants from closing the Toledo Iowa Juvenile
home, as scheduled for January 16, 2014 and disallowing the spending of the money that was
lawfully appropriated to the operation of the Toledo Iowa Juvenile Home; and that the Court
immediately fix a time and place for hearing upon a temporary injunction and prescribe the
notice therefor, and on such hearing enjoin any construction of the structure until after final
hearing of this action.
HEDBERG & BOULTON, P.C.
______
______Nathaniel R. Boulton, AT0000992 Mark T. Hedberg, AT0003285 100 Court Avenue, Suite 425 Des Moines, IA 50309 Tel: 515 288-4148 Fax: 515 288-4149 [email protected] [email protected]
Attorneys for Plaintiffs
Original filed.
Copies served via Electronic Filing, with Defendants served via personal service upon the Attorney General.
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IN THE DISTRICT COURT FOR POLK COUNTY ) DANNY HOMAN, STEVEN J. ) SODDERS JACK HATCH, PAT ) Case No. EQCE075765 MURPHY, and MARK SMITH, ) ) Plaintiffs, ) MOTION TO DISMISS ) AND SUPPORTING BRIEF v. ) ) TERRY BRANSTAD, GOVERNOR ) STATE OF IOWA and CHARLES M. ) PALMER, IOWA DEPARTMENT OF ) HUMAN SERVICES DIRECTOR, ) ) Defendants. ) )
COME NOW the Defendants, Terry Branstad, Governor of the State of Iowa, and Charles M. Palmer, Director of the Department of Human Services, by and through the undersigned counsel, and respectfully move to dismiss the above captioned claim pursuant to Iowa Rule of Civil Procedure 1.421(1) for failure to state a claim upon which relief can be granted. In support thereof, the Defendants submit the following brief.
TABLE OF CONTENTS
STATEMENT OF THE CASE ...... 2
STANDARD FOR GRANTING MOTION TO DISMISS ...... 3
ARGUMENT ...... 3
I. Plaintiffs Lack Standing to Bring an Action for Declaratory Relief, Injunctive Relief, or A Writ of Mandamus ...... 3
A. Plaintiffs Do Not Have Standing as Residents or Citizens of the State of Iowa...... 5
B. Plaintiffs Do Not Have Standing as Taxpayers ...... 6
C. Plaintiffs Sodders, Hatch, Murphy, and Smith Do Not Have Standing as Legislators ...... 7
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II. Plaintiffs Have Failed to State a Claim Upon Which Relief Can be Granted ...... 9
A. The Governor Must Be Dismissed From This Lawsuit ...... 10
B. The Iowa Administrative Procedure Act Affords the Exclusive Remedy and, Under Binding Iowa Supreme Court Precedent, Requires Dismissal of this Lawsuit ...... 13
CONCLUSION ...... 18
STATEMENT OF THE CASE
On December 9, 2013, Charles M. Palmer, Director of the Iowa Department of
Human Services, made the “difficult decision” to find alternative placements for 21 children who were then living at the Iowa Juvenile Home at Toledo. Petition, Ex. C.
After carefully examining the recommendations of the Iowa Juvenile Home Task Force,
Director Palmer determined that “finding appropriate alternative placements is in the best interest of the youth” and consistent with the Task Force’s goals. Id. Judges across the
State of Iowa have agreed, and by and large the children are now living elsewhere.
Governor Terry E. Branstad created the Task Force after complaints about the Home’s use of seclusion and restraint. Petition, Exhibit B, C.
The Plaintiffs, one taxpayer and four legislators, now ask this Court to require the
State of Iowa to resume spending state taxpayer dollars on the Iowa Juvenile Home at
Toledo. Plaintiffs’ extraordinary and unprecedented request, for which Plaintiffs cite no legal authority, seeks to have this Court require Director Palmer to maintain the Iowa
Juvenile Home in order to fully spend the money appropriated by the legislature. But
Plaintiffs have no standing to bring the lawsuit, and even if Plaintiffs did have standing,
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the lawsuit fails to state any claim upon which relief may be granted. This Court should dismiss this lawsuit.
STANDARD FOR GRANTING MOTION TO DISMISS
“A motion to dismiss tests the legal sufficiency of the challenged pleading.”
Southard v. Visa U.S.A., Inc., 734 N.W.2d 192, 194 (Iowa 2007). For purposes of evaluating a motion to dismiss for failure to state a claim upon which relief can be granted, facts pled in the petition are assumed true and all doubts and ambiguities are resolved in favor of the nonmoving party. Id. A motion to dismiss shall be granted “only if the petition shows no right of recovery under any state of the facts.” Comes v.
Microsoft Corp., 646 N.W.2d 440, 442 (Iowa 2002).
ARGUMENT
I. Plaintiffs Lack Standing to Bring an Action for Declaratory Relief, Injunctive Relief, or a Writ of Mandamus.
Courts traditionally have been cautious to avoid issuing advisory opinions. As a result, the judiciary has developed a variety of rules designed to impose self-restraint.
Godfrey v. State, 752 N.W.2d 413, 417 (Iowa 2008). Amongst these rules is the doctrine of standing, which ensures that the proper party is bringing the action by requiring the complaining party to have a “sufficient stake” in a “justiciable controversy.” Standing in
Iowa is comprised of two elements. In order to pursue a claim, a plaintiff “must (1) have a specific personal interest in the litigation and (2) be injuriously affected.” Citizens for
Responsible Choices v. City of Shenandoah, 686 N.W.2d 470, 475 (Iowa 2004).
Though these two elements have much in common, they are separate requirements. Godfrey, 752 N.W.2d at 418. The first requirement—that plaintiffs have a personal or legal interest in the litigation—recognizes that in order to have standing one
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must have a specific interest in the action, apart from the general interest of the public at large. Id. at 419. The second requirement—that plaintiffs be injured in fact—requires the plaintiffs to “show some ‘specific and perceptible harm’ from the challenged action, distinguished from those citizens who are outside the subject of the action but claim to be affected.’ ” Id. (quoting United States v. Students Challenging Regulatory Agency
Procedures, 412 U.S. 669, 689 n.14, 93 S. Ct. 2405, 2417 n.14 (1973)).
Iowa’s two-pronged standing doctrine parallels the federal doctrine, even though federal standing is jurisdictional, while standing in Iowa is prudential. Godfrey, 752
N.W.2d at 418; Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 867, 869 (Iowa 2005)
(discussing Article III “case” and “controversy” requirements). As a result, federal case law will often serve as persuasive authority in determining the applicability of Iowa’s standing doctrine.
When standing is at issue, “the focus is on the party, not on the claim.” Alons,
698 N.W.2d at 864. In other words, the merits of the plaintiffs’ claim are irrelevant to the question of standing. Citizens, 686 N.W.2d at 475 (“Whether litigants have standing does not depend on the legal merit of their claims, but rather whether, if the wrong alleged produces a legally cognizable injury, they are among those who have sustained it.”). Plaintiffs have the burden to establish standing. FOCUS v. Allegheny County Ct. of
Common Pleas, 75 F.3d 834, 838 (3d Cir. 1996).
In bringing their claim, Plaintiff Danny Homan notes that he is a “taxpayer, resident and citizen of the State of Iowa.” Petition ¶ 1. Plaintiffs Sodders, Hatch,
Murphy, and Smith note they are members of the Iowa General Assembly, taxpayers, residents and citizens of the State of Iowa. Petition ¶¶ 2–5. None of these grounds,
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however, provides any of the Plaintiffs with proper standing to being this action declaratory judgment, injunctive relief, or writ of mandamus. As a result, Plaintiffs’
Petition for Declaratory Judgment, Injunctive Relief, and Writ of Mandamus should be dismissed.
A. Plaintiffs Do Not Have Standing as Residents or Citizens of the State of
Iowa. The Iowa Supreme Court has long-recognized that “mere citizenship confers no right to maintain [an] action.” Polk Cnty. v. Dist. Ct., 133 Iowa 710, 711, 119 N.W.
1054, 1054 (1907). The reason for this prohibition is clear—by asserting a claim based upon citizenship, the plaintiffs have not alleged a specific personal or legal interest in the underlying action different from that of the public generally. See Korioth v. Briscoe, 523
F.2d 1271, 1276 (5th Cir. 1975) (“It is tautologically clear that a citizen who asserts only his citizen status as a basis for standing to pursue constitutional or statutory claims has not specified any injury which sets him apart from the mass of citizens who desire that the state adhere to the legal amenities of governance.”).
The United States Supreme Court has also long-rejected citizenship as a basis for standing. Justice Louis Brandeis noted almost one hundred years ago,
Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys not be wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit. . . .
Fairchild v. Hughes, 258 U.S. 126, 129–30, 43 S. Ct. 274, 275 (1922) (emphasis added); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–74, 112 S. Ct. 2130 (1992)
(“We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and
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tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”); Tyler v. Judges of Ct. of Registration, 179 U.S. 405, 406, 21 S. Ct. 206
(1900) (“[E]ven in a proceeding which he prosecutes for the benefit of the public . . . [the plaintiff] must generally aver an injury peculiar to himself, as distinguished from the general body of his fellow citizens.”).
B. Plaintiffs Do Not Have Standing as Taxpayers. “It has long been established . . . that the payment of taxes is generally not enough to establish standing to challenge an action taken by the [] Government.” Hein v. Freedom From Religion
Foundation, Inc., 551 U.S. 587, 594, 127 S. Ct. 2553, 2559 (2007). The United States
Supreme Court created a narrow exception to this doctrine to recognize standing for plaintiffs to challenge a law authorizing the use of federal funds which contravenes the
Establishment Clause. Id. That narrow exception is not at issue here.
The Iowa Supreme Court, however, has recognized an additional exception—a taxpayer has standing to “ ‘maintain an action in his own name to prevent unlawful acts by a public officer which would increase the amount of taxes he is required to pay. . . .’ ”
Alons, 698 N.W.2d at 865 (quoting Polk County v. Dist. Ct., 133 Iowa 710, 712, 110
N.W. 1054, 1055 (1907))). This recognition is due to the common sense observation that taxpayers have an interest in ensuring that their tax dollars are lawfully spent. Wallace v.
Des Moines Indep. Cmty. Sch. Dist. Bd. Of Dirs., 754 N.W.2d 854, 859 (Iowa 2008).
Even this exception is not absolute. Taxpayers are injured in fact and thus acquire
“standing by showing some link between higher taxes and the government action being challenged.” Godfrey, 752 N.W.2d at 424. That link, however, is wholly absent here.
There is no allegation, much less evidence, that taxes will be increased as a result of any
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of the alleged actions by the Defendants. In fact, Plaintiffs are alleging that Defendants are refusing to spend money. No injury in fact occurs in these circumstances. Plaintiffs do not have standing to bring an action for declaratory judgment or writ of mandamus.
Plaintiffs likewise do not have standing to bring an action for injunctive relief.
Although taxpayers “have the right to bring an action to enjoin the illegal expenditure of public funds,” Wallace, 754 N.W.2d at 859, that is not what the Plaintiffs are seeking here. Plaintiffs do not allege that any illegal expenditure has occurred. All Plaintiffs have alleged is that the Defendants will not spend the maximum appropriated for the
Iowa Juvenile Home. As will be discussed below, Iowa law does not require the maximum appropriation to be spent but to the contrary outlines how unspent funds are transferred at the end of the fiscal year.
C. Plaintiffs Sodders, Hatch, Murphy, and Smith Do Not Have Standing as
Legislators. From the face of the Petition it appears that the Plaintiffs are asserting standing solely as taxpayers and citizens of Iowa. See Petition ¶ 18 (“All actions of the
Defendant Governor herein complained of have injured and damaged the Plaintiffs both as taxpayers and citizens of Iowa. . . .”) (emphasis added). Even if the Petition could be read broadly to assume Plaintiffs Sodders, Hatch, Murphy, and Smith are asserting standing in their official capacity as legislators, their claim nevertheless must fail.
The United States Supreme Court has recognized legislative standing for over seventy years. In Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972 (1939), the Court held that state legislators had standing to challenge the process by which an act was ratified.
In so holding, the Court recognized that legislators “have a plain, direct and adequate interest in maintaining the effectiveness of their votes.” Coleman, 307 U.S. at 438, 59
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S.Ct. at 975. Legislative standing, however, is far from absolute as the Supreme Court thoroughly explored in Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312 (1997). Indeed, absolute legislative standing would thwart the concern for separation of powers and a limited judiciary—the two interests underlying the standing doctrine.
None of the Plaintiffs are alleging that their right to vote either as citizens or legislators has been abridged or nullified by any action of the Defendants. Instead, what the Plaintiffs are claiming is that the Defendants unlawfully executed an appropriations bill. That is a fundamentally different question, and a question for which the Plaintiffs cannot show a particularized injury. As the Third Circuit Court of Appeals has held,
“[A]n official’s mere disobedience or flawed execution of a law for which a legislator voted . . . is not an injury in fact for standing purposes.” Russell v. DeJongh, 491 F.3d
130, 134 (3d Cir. 2007).
In examining the contours of legislative standing, federal courts have consistently distinguished between the complete withdrawal or nullification of a voting opportunity and “a diminution in a legislator’s effectiveness, subjectively judged by him or her, resulting from Executive action withholding information or failing to obey a statute enacted through the legislators. . . .” Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir.)
(en banc), vacated on other grounds, 444 U.S. 996, 100 S. Ct. 533 (1979). See also
Chiles v. Thornburgh, 865 F.2d 1197, 1205 (11th Cir. 1989) (rejecting the argument “that the defendants’ failure to comply with these laws deprived the Senator of the effectiveness of his vote on the legislation and that the deprivation constitutes a legally cognizable injury”); Daughtrey v. Carter, 584 F.2d 1050, 1057 (D.C. Cir. 1978) (finding no legislative standing to challenge executive nonenforcement of a law); Harrington v.
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Schlesigner, 528 F.2d 455, 459 (4th Cir. 1975) (holding legislator did not have standing to enjoin President from spending money in violation of legislation restricting the sue of certain appropriations). The reason for this distinction is simple—once a law is passed a legislator has no special interest apart from the average citizen in seeing a law followed.
Russell, 491 F.3d at 135.
This distinction is especially important where, as here, the legislature retains the ability to correct any perceived error in the Defendants’ execution of the law through the legislative process. Id. at 136; see also Raines, 521 U.S. at 829, 117 S. Ct. at 2322. This situation is analogous to Alons. In Alons, the Iowa Supreme Court determined that legislators lacked standing to challenge a district court’s interpretation of a statute.
Alons, 698 N.W.2d at 873. The Court noted, “If the legislature disagrees with a court’s interpretation, its prerogative is to pass legislation making it clear that the court’s interpretation of their intention was incorrect.” Id. Just as in Alons, if the legislature disagrees with the Defendants’’ interpretation of its appropriations bill, it prerogative is to pass legislation in the ongoing legislative session that just began, not to sue.
II. Plaintiffs Have Failed to State a Claim Upon Which Relief Can be Granted.
Even if Plaintiffs had standing to pursue this action, which they do not, the
Petition fails to state a claim upon which relief may be granted. Plaintiffs have wrongly filed an original action against Governor Branstad and Director Palmer1 instead of complying with the familiar requirements of the Iowa Administrative Procedure Act,
1Petitioners name “Terry Branstad, Governor State of Iowa” and “Charles M. Palmer, Iowa Department of Human Services Director” as Defendants. For purposes of this Motion, the State assumes Plaintiffs are suing these individuals in their official capacities and the Petition is, in substance, a suit against the State itself. SeeEgerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Tinius v. Carroll Cnty.Sherriff Dep’t, 255 F. Supp. 2d 971, 986 (N.D. Iowa 2003) (Bennett, J.) (same).
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Iowa Code chapter 17A, and bringing a petition for judicial review against the Iowa
Department of Human Services. Pursuant to Iowa Rule of Civil Procedure 1.421, the
Court must dismiss this case.
The Petition, which is not a model of clarity, contains no counts or express claims for relief. Rather, Plaintiffs describe the Petition generally as “a declaratory judgment action challenging the constitutionality of Defendant Governor’s closing of the Toledo
Iowa Juvenile Home and impoundment of appropriated funds” in 2013 Iowa Acts, S.F.
446, § 17. Petition at ¶ 9. Plaintiffs do not allege what constitutional provision Governor
Branstad and Director Palmer allegedly violated, but, in Plaintiffs’ subsequently filed
Motion for Temporary Injunction, Plaintiffs assert Governor Branstad ran afoul of Article
IV, Section 9 of the Iowa Constitution (“the Take Care Clause”). For relief, Petitioners more broadly request this Court not only (1) declare Governor Branstad’s alleged “refusal to allow the spending of funds appropriated in Section 17 of SF 446 is an unconstitutional impoundment” but also (2) enjoin the closure of the Iowa Juvenile Home and the
“misappropriation of funds dedicated to the Toledo Home” and (3) issue “a Writ of
Mandamus ordering that the Toledo Home remain open.”
A. The Governor Must Be Dismissed From This Lawsuit. At the outset, the
State stresses that any claim that the Governor has “impounded” funds must necessarily fail. It should not go unnoticed that Petitioners cite no constitutional or statutory provision in the Petition to support the remarkable legal proposition that a state agency’s failure to spend the entirety of an appropriation would be illegal and somehow beget a claim against the Governor for relief.
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In the case at bar, any claim for an “unconstitutional impoundment” against the
Governor fails for three equally sufficient, independent reasons:
First, S.F. 446 does not require that the Iowa Department of Human Services spend all funds appropriated with reference to the Iowa Juvenile Home. By its very terms, S.F. 446 merely states that the Iowa Department of Human Services may spend
“not more” than identified amounts “as is necessary.” Petition, Exhibit A. S.F. 446 does not require the Governor to spend $8,859,355 on the Iowa Juvenile Home. There can be no impoundment here, because S.F. 446 does not require the expenditure of funds.
Rather, the legislature gave the Executive Branch the discretion to determine how much of the appropriation was necessary.
Second, even if S.F. 447 purported to mandate that the Iowa Department of
Human Services (or the Governor) spend every dollar appropriated for the Iowa Juvenile
Home, the Take Care Clause2 of the Iowa Constitution can afford Plaintiffs no relief against the Governor. Petitioners’ underlying legal premise—that the Governor is always required to ensure that every dollar the legislature appropriates is always spent lest the
Governor violate Article IV, § 9 of the Iowa Constitution and answer to the judiciary— lacks any support in the law. See 1980 Op. Atty Gen 786, 1980 WL 26040, *12 (Aug.
11, 1980) (“The Governor has implied constitutional authority under Article IV, § 9, to make a reasonable judgment that a legislative objective can be accomplished by spending less than the sum appropriated for that objective.”). To the contrary, the Iowa Code expressly confers authority on the Governor to modify appropriations, Iowa Code
2 Article IV, section 9 of the Iowa Constitution states, “He shall take care that the laws are faithfully executed.
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sections 8.31 through 8.34. The law also permits the Governor and agency directors to transfer appropriated funds within an agency, Iowa Code section 8.39.
Third, at present there is no justiciable controversy against the Governor under the
Take Care Clause of the Iowa Constitution. On one of the rare occasions in which the
Iowa Supreme Court has cited the Take Care Clause, the Iowa Supreme Court recognized that there can be no justiciable controversy without a prior, underlying finding of some illegality. See AFSCME/Iowa Council 61 v. State, 484 N.W.2d 390, 395 (Iowa 1992)
(holding “[i]t was entirely appropriate for the governor to secure a judicial determination
[of the underlying dispute] before acting to fund”). Rather, “[t]he judicial branch will intercede, under its constitutional authority, in [the appropriations] process only when a failure to act . . . has left an adjudicated state obligation [unenforced].” Id. at 396.
Instead of preemptively enjoining or otherwise hauling the Governor into this legal fray over the Iowa Department of Human Services’ authority over the Iowa Juvenile Home, this Court should “trust, owing to goodwill and respect for the rule of law on the part of the governor and legislature, such a point will not be reached in this dispute.” Id. To hold to the contrary would risk transforming every disagreement with state action into a question of constitutional import.
In sum, the appropriations in S.F. 446 is not as absolute as Plaintiffs appear to assume. Nor could the construction of any appropriations bill be so absolute, in our system of laws, given the practical realities of legislating and governing. See, e.g.,
Fletcher v. Peck, 10 U.S. (Cranch) 87, 136, 1810 WL 1558 (1810) (“It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other
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departments. How far the power of giving the law may involve every other power . . . never has been, and perhaps never can be, definitely stated.”). But even if there were some statutory violation that this Court, or some other court, may adjudicate in the future with respect to the Iowa Department of Human Services’ authority over the Iowa
Juvenile Home, it does not follow that Plaintiffs already have a cognizable constitutional claim against the Governor under the Iowa Constitution’s Take Care Clause. Plaintiffs’ claim against the Governor under the Take Care Clause of the Iowa Constitution clearly fails and must be dismissed.3
B. The Iowa Administrative Procedure Act Affords the Exclusive Remedy and, Under Binding Iowa Supreme Court Precedent, Requires Dismissal of this
Lawsuit. Once it is recognized that Plaintiffs have no original action against the
Governor, the Petition’s fatal flaw comes into sharp focus. Although styled as an action against the Governor and Director Palmer, what Plaintiffs truly seek is judicial review of agency action. Indeed, elsewhere in the Petition, Plaintiffs allege “Charles Palmer
[Director of the Iowa Department of Human Services], acting under the direction and/or approval of Governor Branstad . . . gave notice that the Toledo Iowa Juvenile Home was closing.” Petition at ¶ 15 (citing Exhibit C).
The Iowa Juvenile Home is a creature of statutes, and those statutes place the
Iowa Juvenile Home under the auspices of the Iowa Department of Human Services. The
Iowa Code provides that the Director of the Department of Human Services “shall have the general and full authority given under statute to control, manage, direct, and operate”
3In a related vein, this Court has already rejected Plaintiffs’ attempt to characterize the substance of this lawsuit as “in a nature that is similar to” a line-item veto case against the Governor. This case is about administrative agency action, not the executive power of the Governor. See Order dated January 10, 2014.
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the Iowa Juvenile Home. Iowa Code § 218.1(8); see also Iowa Code ch. 233A (generally providing for the Iowa Juvenile Home under the ultimate administration of the Director of the Iowa Department of Human Services). The Iowa Code grants the Iowa
Department of Human Services rulemaking authority for the Iowa Juvenile Home, see
Iowa Code § 218.4, which the Iowa Department of Human Services has done, see generally 441 Iowa Admin. Code ch. 101. The Iowa Department of Human Services serves as the guardian for any children placed at the Iowa Juvenile Home pursuant to juvenile court order. Iowa Code §§ 232.52(2)(e), 232.102(4). Any disagreement
Plaintiffs may have with the State’s actions with respect to the Iowa Juvenile Home clearly must be administrative agency action on the part of the Iowa Department of
Human Services.
Neither a declaratory judgment nor a writ of mandamus may lie here. It is beyond peradventure that the judicial review provisions of the Iowa Administrative Procedure
Act are the exclusive means by which a party may seek judicial review of administrative agency action. Iowa Code § 17A.19; Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d
904, 908 (Iowa 1987). Where, as here, plaintiffs attempt to bring an original action, styled as either a declaratory judgment or mandamus action challenging agency action, the Iowa Supreme Court has held repeatedly that the action should be dismissed for lack of jurisdiction over the case. See, e.g., IES Util. Inc. v. Iowa Dep’t of Revenue & Fin.,
545 N.W.2d 536, 538–41 (Iowa 1996).
Put somewhat differently, “[d]eclaratory relief is not appropriate ‘when there is a complete remedy otherwise provided by law that is intended to be exclusive.’” Iowa
Dep’t of Transp. v. Iowa Dist. Ct., 534 N.W.2d 457, 459 (Iowa 1995) (quoting City of
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Des Moines v. Des Moines Police Bargaining Unit Ass’n, 360 N.W. 2d. 730 (Iowa
1985)). Likewise, “[m]andamus is not available to establish legal rights, but only to enforce legal rights that are clear and certain.” Stafford v. Valley Cmty. Sch. Dist., 298
N.W.2d 307, 309 (Iowa 1980). Mandamus is “a summary and extraordinary writ” that
“will not be issued in doubtful cases but only where the rights and duties are clear and there is no other speedy and adequate remedy in the ordinary course of the law.” Reed v.
Gaylord, 216 N.W.2d 327, 332 (Iowa 1974).
The issue is not whether the court has subject matter jurisdiction over declaratory judgment actions or applications for writs of mandamus generally. For example, this
Court clearly may issue declaratory judgment actions under Iowa Rule of Civil Procedure
1.1101. Rather, the question is whether this Court has the authority to entertain the
Petition “based on the particular procedural status of the case.” IES, 545 N.W.2d at 538
(emphasis in original).
Time and again the Iowa Supreme Court and Iowa Court of Appeals have required dismissal of similar lawsuits. IES, 545 N.W.2d at 538–41 (citing cases); City of
Des Moines v. Des Moines Police Bargaining Unit Ass’n, 360 N.W.2d 729, 731
(analyzing what is now Iowa R. Civ. P. 1101, stating that declaratory judgment power is
“not unlimited” and is “not appropriate and must be denied when there is a complete remedy otherwise provided by law that is intended to be exclusive,” and sua sponte reversing district court for granting declaratory judgment because plaintiffs sought declaratory judgment against an administrative agency instead of proceeding under Iowa
Code chapter 17A); Basik Five Trust v. Culver, No. 06-1065, 2007 WL 108898, *3 (Iowa
Ct. App. Jan. 18, 2007) (per curiam) (rejecting attempt to bring a count in an original
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action for “a declaratory judgment and/or writ of mandamus” against the Iowa Secretary of State, because the Iowa Administrative Procedure Act, Iowa Code chapter 17A, provided the exclusive means for such relief) (citing Graham v. Baker, 447 N.W.2d 397
(Iowa 1989) and Citizens’ Aide/Ombudsman v. Rolfes, 454 N.W.2d 815 (Iowa 1990)).
The Iowa Supreme Court has observed that requiring allegedly aggrieved parties to exhaust all avenues for judicial review recognizes that “[t]he very purpose of an administrative agency . . . is to expertly form various functions in a general area of the law for the benefit of the general public (the taxpayers that fund the operation of all administrative agencies).” IES, 545 N.W.2d at 539. Decision-making authority with respect to the Iowa Juvenile Home is vested with the Iowa Department of Human
Services and can only be challenged under Iowa Code chapter 17A.4
Further, Plaintiffs’ failure to first seek agency review under Iowa Code chapter
17A is fatal to this lawsuit and requires dismissal. Because Plaintiffs have not brought their concerns to the Iowa Department of Human Services – which is unsurprising given they lack any personal interest in the case, as explained above – Plaintiffs clearly have not exhausted their administrative remedies. Iowa Code 17A.19(1).
Even if Plaintiffs had exhausted their administrative remedies, the Iowa Supreme
Court has held this Court may not simply construe the Petition as an appellate proceeding under Iowa Code chapter 17A. The Court has said:
4 The Plaintiffs further cannot join an original law or equity action, assuming one exists, with a petition for judicial review. Black v. Univ. of Iowa, 362 N.W.2d 459, 462 (Iowa 1985). If a justiciable claim against the Governor survives it would need to be severed from any claim against the Department. If a viable judicial review proceeding does exist, it too would need to be recast namely the Department and not Director Palmer as the proper Respondent.
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[W]hen a party initiates a district court declaratory judgment action to obtain an adjudication entrusted exclusively in the first instance to an administrative agency, the action must be dismissed unless it is indistinguishable in substance from a petition for judicial review and all of the jurisdictional prerequisites for judicial review of agency action under [Iowa Code chapter 17A] have been met.
City of Des Moines, 360 N.W.2d at 730 (emphasis added).
Plaintiffs’ Petition is not indistinguishable in substance from a petition for judicial review. A judicial review action is an appellate proceeding, and the Petition is pled as an ordinary action. See IES, 545 N.W.2d at 538-39 (emphasizing that the district court in a chapter 17A proceeding sits in an “appellate” capacity and holding that “[e]xhaustion of administrative remedies is generally required prior to permitting a party to seek relief via judicial review in district court” (emphasis in original)). Further, under Iowa Code chapter 17A, ordinary rules of notice pleading do not apply. Second Injury Fund v.
Klebs, 539 N.W.2d 178, 180 (Iowa 1995). The pleading requirements set forth in Iowa
Code chapter 17A “are much more stringent than those in an original action” under the
Iowa Rules of Civil Procedure. Id. Iowa Code section 17A.19(4) requires a petitioner to
“state the facts on which venue is based, the grounds on which relief is sought, and the relief sought.” Id. (emphasis added). Further, “each claimed error must be separately and distinctly stated.” Id. Plaintiffs have not, for example, separately and distinctly stated the grounds upon which Plaintiffs seek reversal of an act, or failure to act, on the part of the Iowa Department of Human Services. Plaintiffs do not identify the subparagraphs of Iowa Code chapter 17A.19(10) upon which Plaintiffs rely to seek reversal of the agency action in question. See Iowa Code § 17A.19(10) (limiting reversal to certain specified grounds); State v. Clark, 608 N.W.2d 5, 8 (Iowa 2000) (after quoting chapter 17A’s pleading requirements at length, reversing judgment in favor of plaintiff in
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declaratory judgment action because the plaintiff was required to file a petition for judicial review).
Nor have Plaintiffs met all the jurisdictional prerequisites for filing an action under Iowa Code chapter 17A. For example, Plaintiffs did not perfect proof of mailing by affidavit, as required by Iowa Code section 17A.19. Plaintiffs’ failure to do so deprives this Court of jurisdiction and requires dismissal. See Iowa Code §17A.19(2)
(“Such personal service or mailing shall be jurisdictional.”); Dawson v. Iowa Merit
Employment Comm’n, 303 N.W.2d 158, 160 (1981)) (affirming dismissal); Neumeister v.
City Development Bd., 291 N.W.2d 11, 14 (Iowa 1980) (dismissing appeal, where petitioner, because he did not file a petition for judicial review, necessarily did not perfect proof of mailing by affidavit within ten days, but instead delivered a copy of a petition with an original notice); Record v. Iowa Merit Employment Dep’t, 285 N.W.2d 169, 173
(Iowa 1979) (similar); Iowa Dep’t of Transp. v. Iowa Dist. Ct. ex rel. Shelby Cnty., No.
02-1254, 2004 WL 1898243, *2 & n.2 (Iowa Ct. App. Aug. 26, 2004) (reiterating that
“the court must refuse to issue a ruling unless . . . all of the jurisdictional prerequisites for judicial review of agency action have been met” (quoting Clark, 608 N.W.2d at 7) and noting that “[n]o proof-of-mailing affidavit . . . appears in the record”). While these jurisdictional requirements may appear at first glance to be mere formalities, the Iowa
Supreme Court’s consistent decisions in this area of the law underscore and reinforce fundamental principles of administrative law—the legislature’s specific standards for challenging agency action, as set forth in the Iowa Administrative Procedure Act, and the appellate nature of this Court’s review. See Neumeister, 291 N.W.2d at 14.
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CONCLUSION
For the reasons expressed above, Defendants pray that their motion to dismiss be granted.
Respectfully submitted,
THOMAS J. MILLER ATTORNEY GENERAL OF IOWA
/s/ Jeffrey S. Thompson ______JEFFREY S. THOMPSON Solicitor General of Iowa
/s/ Timothy L. Vavricek ______TIMOTHY L. VAVRICEK Assistant Attorney General
/s/ Meghan L. Gavin ______MEGHAN L. GAVIN Assistant Attorney General Iowa Department of Justice Hoover State Office Bldg., 2nd Fl. 1305 East Walnut Street Des Moines, Iowa 50319 Phone: (515) 281-6858 Fax: (515) 281-7551 Email: [email protected] Email: [email protected] Email: [email protected]
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IN THE DISTRICT COURT FOR POLK COUNTY ) DANNY HOMAN, STEVEN J. ) SODDERS JACK HATCH, PAT ) Case No. EQCE075765 MURPHY, and MARK SMITH, ) ) Plaintiffs, ) RESISTANCE TO PETITION ) FOR PRELIMINARY v. ) INJUNCTION AND ) SUPPORTING BRIEF TERRY BRANSTAD, GOVERNOR ) STATE OF IOWA and CHARLES M. ) PALMER, IOWA DEPARTMENT OF ) HUMAN SERVICES DIRECTOR, ) ) Defendants. ) )
COME NOW the Defendants, Terry Branstad, Governor of the State of Iowa, and Charles M. Palmer, Director of the Iowa Department of Human Services, by and through the undersigned counsel, and resist the Plaintiffs’ Petition for Preliminary
Injunction. In support thereof, the Defendants respectfully submit the following brief.
STATEMENT OF THE CASE
The Plaintiffs, one taxpayer and four legislators, ask this Court to grant injunctive relief (1) restraining Defendants from closing the Iowa Juvenile Home; and (2) disallowing the spending of money appropriated to the Iowa Juvenile Home. (Plaintiff’s
Application for Preliminary Injunction).1 Plaintiffs’ extraordinary and unprecedented request, for which Plaintiffs cite no legal authority, seeks to have this Court require
Director Palmer to reopen the Juvenile Home in spite of all prior determinations that living at the Juvenile Home is not in the children’s best interests.
1In their Brief in Support of Petition for Preliminary Injunction, Plaintiffs further ask the court to “enjoin any construction of the structure.” Defendants do not understand this request for relief.
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TEMPORARY INJUNCTION STANDARDS
The issuance or denial of a temporary injunction invokes the equitable power of the court. As a result, in determining whether to grant a temporary injunction, courts employ equitable principles. Max100 L.C. v. Iowa Reality Co., 621 N.W.2d 178, 181
(Iowa 2001); accord Matlock v. Weets, 531 N.W.2d 118, 123 (Iowa 1995). The grant of injunctive relief is extraordinary and should be granted with caution. Planned
Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 639 (Iowa 1991); accord Kleman v.
Charles City Police Dep’t, 373 N.W.2d 90 (Iowa 1985) (“We have repeatedly emphasized that the issuance or refusal of a temporary injunction is a delicate mater—an exercise of judicial power which requires great caution, deliberation, and sound discretion.”).
In doubtful cases, issuance of an injunction is particularly dangerous. Iowa State
Dep't of Health v. Hertko, 282 N.W.2d 744, 751 (Iowa 1979). As recognized in Hertko, “
‘[a]n injunction will not issue where the right of the complainant, which it is designed to protect, depends upon a disputed question of law about which there may be doubt, which has not been settled by the . . . law of this state.’ ” Id. (citation omitted). The Third
Circuit has succinctly articulated the standard as “to doubt is to deny.” Madison Square
Garden Corp., v. Braddock, 90 F.2d 924, 927 (3d Cir. 1937), accord Lee v. Consol. Sch.
Dist. No. 4, 494 F. Supp. 987, 989 (W.D. Mo. 1980) (court does not consider the maxim to be an overstatement); Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802,
813 (4th Cir. 1991).
“The test for issuing an injunction is whether the facts in the case show a necessity for intervention of equity in order to protect rights cognizable in equity.”
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Matlock, 531 N.W.2d at 123. “Preliminary restraint against public officers should not be ordered unless on the pressure of urgent necessity, and ordinarily a temporary injunction against public officers will be refused where plaintiff’s right to an injunction is doubtful or is based on facts determinable only by trial.” Kent Products, Inc. v. Hoegh, 245 Iowa
205, 61 N.W.2d 711, 715 (1953) (citing 43 C.J.S., Injunctions, § 108c, at 619).
Before a court can grant a temporary injunction, there must be evidence in the form of an affidavit or sworn testimony upon which the court “can ascertain the circumstances confronting the parties and balance the harm that a temporary injunction may prevent against the harm that may result from its issuance”. Kleman, 373 N.W.2d at
96. See also, Iowa R. Civ. Pro. 1.1502 (requiring petition to be supported by affidavit).
Plaintiffs have not complied with the requirement that their Petition for Preliminary
Injunction be supported by affidavit. In fact, they acknowledge that there are no affidavits available and instead ask the court simply to rely upon their pleadings.
(Plaintiff’s Brief in Support of Petition for Preliminary Injunction, unnumbered p. 3).
However, “unverified pleading, standing alone, is not sufficient evidence to authorize an interlocutory or temporary injunction.” Id. (citing 43A C.J.S. Injunctions § 214, at 469).
II. THE LEGAL THEORY ASSERTED BY PLAINTIFFS HAS NOT BEEN RECOGNIZED OR CLEARLY DEFINED BY THE IOWA COURTS AND A TEMPORARY INJUNCTION CANNOT ISSUE IN SUCH CIRCUMSTANCES.
The legal theory espoused by Plaintiffs, and upon which they seek injunctive relief, is identified by them as follows:
Therefore, injunctive relief is necessary in order to stop the illegal impoundment of funds appropriated to the Iowa Juvenile Home at Toledo. Further, injunctive relief is necessary to prevent the funds from being made available for other, unintended purposes which would result in a misappropriation of legally appropriated funds.”
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(Plaintiff’s Brief in Support of Petition for Preliminary Injunction, unnumbered p. 3).
The Plaintiffs entire case is based upon an alleged illegal impoundment of funds, yet they fail to cite one case from any jurisdiction that would support their theory. It is
Plaintiff’s burden to cite legal authority to establish that injunctive relief is warranted.
Kleman, 373 N.W.2d at 96. They have not done so.
There are a handful of Attorney General opinions in which the concept of impoundment has been discussed, but those decisions acknowledge there is no Iowa
Supreme Court guidance on the issue. 1980 Iowa Op. Atty. Gen. 786, at 6 (1980) (“in
Iowa the question of what type of executive action constitutes an impoundment of appropriated funds has not been precisely identified as a matter of law”). The acknowledged lack of any clear legal authority for the Plaintiff’s position is fatal to their injunction request. As noted above, injunctive relief is not appropriate when there is no settled legal authority. Kent Products, Inc., 245 Iowa 205, 61 N.W.2d at 715 (1953).
Federal courts have addressed impoundment in the context of federal appropriations, but even then it has been stated that “the crucial issue will involve a determination as to whether the language of an appropriations statute mandates the expenditure of appropriated funds or delegates discretion to the executive to spend the funds”. 1980 Iowa Op. Atty. Gen. 786, at 5 (1980). In this case, the language of the appropriation at issue, coupled with the statutory discretion afforded the executive branch to manage the budget, provides no legal basis upon which a court could determine that there has been an impoundment of funds. The appropriation at issue states:
Sec. 17. JUVENILE INSTITUTIONS. There is appropriated from the general fund of the state to the department of human services for the fiscal year beginning July 1, 2013, and ending June 30, 2014, the following
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amounts, or so much thereof as is necessary, to be used for the purpose designated:
1. For operation of the Iowa juvenile home at Toledo and for salaries, support, maintenance, and miscellaneous purposes, and not for more than the following full-time equivalent positions: ...... $8,859,355 ...... FTEs 114.0
The appropriation, on its face, gives discretion to the executive branch to determine how much of the appropriation is necessary for the operation of the Iowa
Juvenile Home and for other miscellaneous purposes. There is nothing in the appropriation language that mandates that the entire amount be expended. The legislature clearly gave the Defendants the authority to determine how much of the appropriation to expend and the Plaintiffs are asking the Court to now ignore that authority.
The authority to execute and supervise the budget of the state of Iowa lies with the Governor. See generally Iowa Code §§ 8.30— 8.54. Specific powers include the ability to reorganize state services “to bring about increased economy and efficient in the conduct of the affairs of government,” Iowa Code section 8.35; make intradepartmental transfers of unexpended appropriations for any purpose within the scope of the such department, Iowa Code section 8.39(1); make interdepartmental transfers of appropriations, Iowa Code section 8.39 (2); and order a uniform and prorate reduction of all appropriations in the event resources are insufficient to pay all appropriations, Iowa
Code section 8.31.
Plaintiffs cite no case law or other binding precedent for their extraordinary and novel suit. Instead, Plaintiffs rely upon a regurgitation of unsubstantiated facts to show the likelihood of success on their unsupported, unarticulated claim. See Kleman, 373
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N.W.2d at 95 (noting that even though the rules of evidence are relaxed, this relaxation
“does not permit a court to issue a temporary injunction solely on the basis of the allegations contained in an unverified petition”). Not only is this “demonstration” wholly insufficient to support grant of a temporary injunction, as demonstrated extensively in
Defendants’ Motion to Dismiss and Supporting Brief, it is insufficient to sustain their suit at all. See IES Utils. Inc. v. Iowa Dep’t of Revenue and Fin., 545 N.W.2d 536, 541 (Iowa
1996) (summarily dismissing review of denial of temporary injunction where the underlying claim was properly dismissed).
III. PLAINTIFFS HAVE NO PROOF OF ANY HARM, MUCH LESS IRREPARABLE HARM.
Plaintiffs cite three injuries necessitating a stay—(1) the amorphous injury which occurs whenever a law is not faithfully executed, (2) the potential injury to the juveniles formerly placed at the Iowa Juvenile Home, and (3) the potential injury to the employees of the Iowa Juvenile Home, and the Toledo community, as a result of staff layoffs. Most notably, none of these injuries are to the Plaintiffs themselves, which reinforces why the
Plaintiffs have no standing to bring this action.
The first injury—the vaguely stated injury that occurs whenever a law is not faithfully executed—is the same “injury” suffered by society at large and thus is not unique to the Plaintiffs. This “injury” is moreover is not sufficient ground for a temporary injunction. If it was, an injunction would issue in every action or in every action where a constitutional violation was alleged. Plaintiffs have cited no authority for this proposition. Plaintiffs do not even allege—let alone offer evidence of—a particularized, irreparable injury to themselves should the temporary injunction not be granted.
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Plaintiffs assert that by closing “the Toledo Iowa Juvenile Home, the youth it serves will suffer from irreparable harm.” Not only is this claim wholly unsubstantiated, it is beyond the jurisdiction of this court to address. First, Plaintiffs have no standing to assert claims on behalf of other individuals with whom they have no legal relationship.
Second, exclusive jurisdiction over children who are alleged to be either delinquent or children in need of assistance lies with the juvenile court. Iowa Code §§ 232.8, 232.61.
Only the juvenile court has jurisdiction to adjudicate a child as having committed a delinquent act or as being a child in need of assistance, Iowa Code section 232.47(2),
232.96; determine the least restrictive disposition appropriate for adjudicated delinquents or children in need of assistance, Iowa Code sections 232.52(1), § 232.99; order placement at the Iowa Juvenile Home, Iowa Code sections 232.52(2)(e), § 232.102(3); and modify or vacate a dispositional order, Iowa Code sections 232.54, 232.103.
All of the children that Plaintiffs purport to be irreparably injured are under the jurisdiction of the juvenile court. The juvenile court is responsible for determining what is in the best interests of the children and only the juvenile court can make adjudicatory and placement decisions with respect to the children. The Plaintiffs are asking that this
Court interfere with decisions made by juvenile courts based upon vague and unsubstantiated allegations. This Court has no authority to do so.
Although the closure of the Iowa Juvenile Home will impact the Iowa Juvenile
Home employees, at least temporarily, Plaintiffs have no standing to assert irreparable harm on behalf of the employees—again a group of people with whom they have no legal relationship. Even if there was standing, the Plaintiffs have wholly failed to offer any
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type of proof of irreparable harm. There are no facts alleged and no affidavits identifying specific harms.
Plaintiffs are requesting that the Court exercise one of its most extraordinary powers but have failed to comply with the basic statutory requirement of providing affidavits, have failed to offer any legal authority in support of their legal theories and have failed to articulate any irreparable harm to themselves. They are asking the Court to order state officials to reopen a state facility, at great expense to the taxpayers, even though there are no children placed there by the juvenile court. The Supreme Court has cautioned against the issuance of a temporary injunction against public officers when the right to an injunction is doubtful or is based on facts determinable only by trial. Hoegh,
61 N.W.2d at 715. Plaintiffs have provided neither law nor fact that would support the issuance of a temporary injunction.
CONCLUSION
Grant of a temporary injunction is an extraordinary, equitable remedy. Plaintiffs simply have not shown or even alleged that principles of equity and fairness warrant grant of a temporary injunction. The State respectfully requests that Plaintiffs’ Petition for Preliminary Injunction be denied.
Respectfully submitted,
THOMAS J. MILLER ATTORNEY GENERAL OF IOWA
/s/ Jeffrey S. Thompson ______JEFFREY S. THOMPSON Solicitor General of Iowa
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/s/ Timothy L. Vavricek ______TIMOTHY L. VAVRICEK Assistant Attorney General
/s/ Meghan L. Gavin ______MEGHAN L. GAVIN Assistant Attorney General Iowa Department of Justice Hoover State Office Bldg., 2nd Fl. 1305 East Walnut Street Des Moines, Iowa 50319 Phone: (515) 281-6858 Fax: (515) 281-7551 Email: [email protected] Email: [email protected] Email: [email protected]
9 APP 46 E-FILED 2014 JAN 23 8:07 AM POLK - CLERK OF DISTRICT COURT
IOWA DISTRICT COURT IN AND FOR POLK COUNTY
MARK SMTH DANNY HOMAN 05771 EQCE075765 JACK HATCH PAT MURPHY STEVEN SODDERS ORDER SETTING HEARING Plaintiff
vs.
TERRY BRANSTAD CHARLES M PALMER
Defendant
IT IS THE ORDER OF THE COURT that Plaintiff's Application for a Preliminary Injunction and Defendant's Motion to Dismiss is hereby set for hearing as follows;
Hearing is scheduled on 01/31/2014 at 1:30 PM at the Polk Co Courthouse, 500 Mulberry St, CtRm 404, DSM IA 50309.
IT IS SO ORDERED this 23rd day of January, 2014
If you need assistance to participate in court due to a disability, call the disability coordinator at (515) 286-3394. Persons who are hearing or speech impaired may call Relay Iowa TTY (1-800-735-2942). Disability coordinators cannot provide legal advice.
1 of 2 APP 47 E-FILED 2014 JAN 23 8:07 AM POLK - CLERK OF DISTRICT COURT
State of Iowa Courts Case Number Case Title EQCE075765 DANNY HOMAN ET AL VS TERRY BRANSTAD ET AL Type: OTHER ORDER So Ordered
Electronically signed on 2014-01-23 08:07:52
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IN THE IOWA DISTRICT COURT FOR POLK COUNTY
DANNY HOMAN, STEVEN J. SODDERS, JACK HATCH, PAT MURPHY and Case No. EQCE075765 MARK SMITH Plaintiffs, v. RESISTANCE TO DEFENDANTS’ MOTION TO DISMISS TERRY BRANSTAD, GOVERNOR STATE OF IOWA and CHARLES M. PALMER, IOWA DEPARTMENT OF HUMAN SERVICES DIRECTOR Defendants.
COMES NOW the Plaintiffs, and in Resistance to the Defendants’ Motion to Dismiss, and in support of their claim for which relief may be granted, respectfully states the following:
STANDARD FOR MOTION TO DISMISS
“A motion to dismiss tests the legal sufficiency of the challenged pleading.” Southard v.
Visa U.S.A., Inc., 734 N.W.2d 1942, 194 (Iowa 2007). Consequently, granting of such motion is only proper when the “petition shows no right of recovery under any state of the facts.” Comes v. Microsoft Corp., 646 N.W.2d 440, 442 (Iowa 2002). Evaluation of a motion to dismiss is addressed by the Iowa Rules of Court as they are outlined in Federal Rule of Civil Procedure 12(b).
Generally, a judge will take the plaintiff’s factual allegations to be true when ruling on the motion, viewing the facts most favorably to the plaintiff. This means that a claim is plausible if the complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” and “there is more than a sheer possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
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ARGUMENT
I. Plaintiffs have Standing to Bring an Action for Declaratory Relief, Injunctive
Relief, and Writ of Mandamus.
Standing is required in order to pursue a claim, this means that the plaintiff “must have a specific personal interest in the litigation and be injuriously affected.” Citizens for Responsible
Choices of City of Shenandoah, 686 N.W.2d 470, 475 (Iowa 2004). This means, that the focus is on whether the plaintiff has the ability to bring a claim and must be analyzed before the merits of the claim itself. In order to prove standing, the Plaintiffs in this case must establish they, “1. have a legal interest in litigations; and 2. be injuriously affected.” Sanchez v. State, 692 N.w.2d
812, 821 (2005), citing Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d 470,
475 (Iowa 2004).
In the case at hand, the plaintiffs consist of Danny Homan who is the president of AFSCME
Iowa Council 61, Steven J. Sodders and Jack Hatch who are both Iowa State Senators and Pat
Murphy who is an Iowa State Representative. All four plaintiffs are taxpayers, residents and citizens of the State of Iowa.
Specifically, as residents of the state of Iowa, all four Plaintiffs have been adversely affected by the closing of the Toledo Facility and constitutional violations that resulted. Similarly, as taxpayers, all four Plaintiffs have an interest in ensuring compliance with the Iowa
Constitution. In other words, as Iowa residents and taxpayers, the Plaintiffs in this matter have been aggrieved by the unconstitutional acts of the Defendant Governor.
Further, in the case at hand, a decision on the merits as to whether there was a violation of Article IV Section 9 of the Iowa Constitution would be appropriate. After all, state courts are
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not bound to the strict requirements for standing as those set forth in the federal court. 59 Am.
Jur. 2d (1987). This was seen in the Hurd case where it was determined that an injury does not always need to be immediate, imminent or affect the plaintiff in a manner that is distinct from the general public. Hurd v. Odgaard, 297 N.W.2d 355 (Iowa 1980). Here, taxpayers and citizens in general were found to have standing to bring action against their county for the proper safety and maintenance of a building. Id. In the court’s conclusion, they stated;
We in Iowa have never accepted the view expressed in several jurisdictions that the right of a taxpayer to vindicate the public interest in compliance with the laws of the State should be restricted only to those cases in which he could demonstrate pecuniary damage.
Id. at 357.
Furthermore, Iowa courts have focused on the concept of cognizable injury. Meaning, that a plaintiff has sufficient personal stake in a case if he is “among those who have sustained it.” ICLU v. Critelli, 244 N.W.2d 564, 567 (Iowa 1976). Therefore, based on the foregoing, it is clear that simply as residents and taxpayers, all four plaintiffs in this matter have sufficient standing.
This is based on the fact they possess in interest in ensuring that constitutional provisions are complied with and can clearly show that they were among those who sustained a cognizable injury due to the closing of the Toledo Facility.
In a more specific sense, the legislators clearly have standing in this matter. After all, the legislators have an interest in maintaining the effectiveness of their votes. The interest of the legislators in this matter is further apparent through the fact that the Toledo facility was both addressed in the Iowa Code and appropriations were directly made to its continued operation.
Therefore, the Defendants assertion that if the Plaintiffs disagree with the interpretation of such,
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they should clarify their intent by passing legislation is not a sufficient argument. See Defendants’
Motion to Dismiss at page 9. After all, the issue at hand is not a misinterpretation of a statute or misunderstanding of an appropriations bill. Rather, the issue is the fact that the Defendant
Governor blatantly disregarded each, deciding his prerogative was greater than the enacted legislation. This has the effect of nullifying the legislature’s role in directing how appropriated funds are to be used, thus usurping the legislature’s constitutional authority. There is no doubt that is an injurious matter to members of the Iowa General Assembly.
Lastly, Danny Homan has standing in this matter. As president of AFSCME Iowa Council
61, Danny represents the interests of the employees who work at the Iowa Juvenile Home at
Toledo through collective bargaining and other labor relations with the state of Iowa. Therefore,
Danny’s standing here stems from his interest in representing the bargaining unit employees who were adversely affected by the Defendant Governor’s constitutional violations.
Ultimately, the Plaintiffs in this matter are able to establish standing based on every status they claimed in the initial petition in this matter. Therefore, the only issue remaining that would warrant dismissal of this case is if the Plaintiffs have failed to state a claim upon which relief can be granted.
II. Plaintiffs have successfully stated a claim upon which relief can be granted.
Based on the foregoing, the Plaintiffs in this matter possess proper standing in order to bring the action. Therefore, the issue becomes whether the Plaintiffs have stated a claim upon which relief can be granted.
The original action brought by the Plaintiffs in this matter clearly set forth their claim for relief based on Defendant Governor’s impoundment and misappropriation of funds outlined
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under Senate File 446. It is clear that the issue at hand is constitutional, stemming from
Defendant Governor’s blatant disregard for Article IV Section 9 of the Iowa Constitution.
Moreover, Iowa Code Chapter 17A does not apply to this matter. Even if it were applicable, the 17A service issue presented by the Defendants has been satisfied through personal service, affidavits of which have been filed with the court. Thus making dismissal improper under Iowa Rule of Civil Procedure 1.421.
Ultimately, the claim set forth by the Defendants that the Plaintiffs have failed to state a claim upon which relief may be granted is nothing more than a circular argument, which applies incorrect legal principles in an attempt to overcome the irrefutable constitutional claim against them.
a. Dismissal of Defendant Governor from this matter would be improper.
The Defendants assert that the Defendant Governor should be dismissed from this matter based on two grounds; the fact that his actions do not constitute an unconstitutional impoundment of funds and the claim there is no violation of Article IV Section 9 of the Iowa
Constitution.
First of all, the Defendants premise their argument that no illegal impoundment existed on the fact that the Plaintiffs cite no constitutional or statutory authority addressing such issue.
However, the Plaintiffs have clearly outlined the concept of impoundment, establishing its applicability in the case at hand. Specifically, an Attorney General Opinion was relied on to define impoundment as “refusal by an executive official to spend, or all the spending of, funds which have been made available the legislature.” See Op.Att’y Gen. 786, 791; citing 27 A.L.R. Fed. 214,
217.
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The fact that Plaintiffs “failed to cite authority” is based upon the minimal authority that exists concerning the matter. However, the lack of authority, such as the nonexistence of Iowa
Supreme Court case law, is irrelevant. After all, the discussion of impoundment and relevant
Attorney General Opinions displays a recognition and appreciation for the concept as well as a guide for its applicability. Simply dismissing a matter based on the lack of current authority would eliminate the need for judicial process all together.
In their last attempt to rebut the unconstitutional impoundment, the Defendants assert that Senate File 446 does not require the expenditure of the appropriated funds and that the executive branch has the discretion to determine how much appropriation is necessary. While this may be true to some extent, it is not relevant in the matter at hand. For example, if at the end of the fiscal year, the Toledo facility spent less money than appropriated due to a cost effective alternative in daily operation, there would not be an issue. After all, the appropriation serves as a ceiling, capping the spending for the facility. This, however, is not synonymous with the Defendant Governor choosing not to spend the money at all or spending the money for means entirely different than was intended.
The Defendants rebuttal of the impoundment issue is almost identical to their rebuttal of the claim arising from Article IV Section 9 of the Iowa Constitution. Here, the Defendants incorrectly interpret the Plaintiffs constitutional argument to be “that the Governor is always required to ensure that every dollar the legislature appropriates is always spent lest the Governor violate Article IV Section 9 of the Iowa Constitution and answer to the judiciary…” Defendants’
Motion to Dismiss, page 11. Such claim was never made by the Plaintiffs in this matter. Once again, the issue is not one of spending less money than appropriated rather the issue is the refusal
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to spend appropriated money and spending money for a means entirely different than what it was intended for.
Further, Iowa Code 8.39 requires that “prior to any transfer of funds, the director shall notify the chairpersons of the standing committees on budget of the senate and the house of representatives and the chairperson of subcommittees of such committees of the proposed transfer...” The code section also requires that any transfer made under the section be reported to the legislative fiscal committee on a monthly basis. This was further analyzed by Iowa Supreme
Court Justice Appel in his Drake Law Review Article and his analysis of the pertinent Iowa Code
Sections. Specifically, he stated;
Even if the Governor may not exercise item veto powers to reduce appropriations, the question remains whether the Governor can simply decline to spend lawfully appropriated funds. In its most extreme form, such conduct is called impoundment. If the Governor may impound funds, the principle that a Governor may not reduce appropriations through the item veto has little practical consequence. The better view is the Governor cannot freely impound funds in a fashion that defeats the fundamental legislative purpose absent express legislative authorization. However, a refusal to expend funds to accomplish a legislative objective should be distinguished from situations in which the executive determines the legislative purposes can be fully obtained through a lesser expenditure of funds than appropriated. Item Veto Litigation in Iowa: Marking the Boundaries Between Legislative and Executive Power, 41 Drake L. Rev. 1 (1992).
As a basis for his conclusion, Justice Appel defined impoundment as “any action or inaction by the [Governor] that effectively prevents the use of funds that [the legislature] has appropriated for a program or project. Cathy S. Nevre, Addressing the Resurgence of Presidential
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Budgetmaking Initiative: A proposal to Reform the Impoundment Control Act of 1974, 63 Tex. L.
Rev. 693, 693 n. 2 (1984). He also cited Iowa Code Section 8.31, authorizing the Governor to make
“reductions in appropriations in a uniform and proportionate manner in order to prevent an overdraft or deficit in various state funds.” Further noting that under Iowa Code Section 8.31, the reductions must be “’across-the-board’ and cannot attempt to alter previously established legislative funding priority.” See Footnote 229.
As demonstrated above, the Defendants are unable to successfully refute the unconstitutional actions surrounding the closing of the Toledo facility. Clearly showing the actions of the Defendants constitute an illegal impoundment and violate of Article IV Section 9 of the Iowa Constitution. Thus, the Plaintiffs have successfully stated a claim upon which relief can be granted. Therefore, the dismissal of the Defendant Governor from this matter would be inappropriate.
b. The Iowa Administrative Procedure Act is not grounds for dismissal in this
matter.
The assertion by the Defendants that what the Plaintiffs are truly seeking in the matter is judicial review of an agency action is incorrect. After all, the Plaintiffs have successfully detailed their constitutional claim arising from the closing of the Iowa Juvenile Home at Toledo. The fact that the Defendants state that the Iowa Department of Human Services has rulemaking authority over the Toledo facility is irrelevant. After all, this claim is not a challenge action stemming from rule making authority. In reality, the claim presents the issues involving impoundment and a violation of Article IV Section 9 of the Iowa Constitution. Both of which are constitutional claims
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that have been successfully presented by the Plaintiffs in this matter. Ultimately signifying that declaratory relief and a writ of mandamus are appropriate.
The Iowa Supreme Court has stated that declaratory relief “is not appropriate when there is a complete remedy otherwise provided by law that is intended to be exclusive.” Iowa
Dep’t of Transp. V. Iowa Dist. Ct., 534 N.W.2d 457, 459 (Iowa 1995) (quoting City of Des Moines v. Des Moines Police Bargaining Unity Ass’n, 360 N.W.2d 730 (Iowa 1985). Here, there is no other remedy provided by the law to resolve the issues stemming from the closing of the Toledo facility.
After all, the proposed judicial review of an agency decision would not be appropriate. This is based on the fact that there has not been a challenge to an administrative agency decision. It is clear that the closing of the Toledo facility in this matter was not simply an administrative agency decision. Rather, the decision to close the Toledo facility arose from the actions of the Governor through his executive order and establishment of the Iowa Juvenile Home Protection Task Force.
Meaning that Director Palmer’s December 9, 2013 notice of the closing of the Toledo facility was based on the direction of Governor Branstad. Ultimately, reaffirming the existence of the constitutional issues in this matter.
Further, a writ of mandamus “will not be issued in doubtful cases but only where the rights and duties are clear and there is no other speedy and adequate remedy in the ordinary course of the law.” Reed v. Gaylord, 216 N.W.2d 327, 332 (Iowa 1974). The support offered for the appropriateness of declaratory relief in this matter further applies to the appropriateness of a writ of mandamus in this matter. However, it must also be noted that a writ of mandamus addresses the issue of “speedy.” This is extremely important in the matter at hand due to the
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time sensitive nature of the case. After all, employees have been displaced from their jobs and children have been uprooted from the facility, many without definite placement.
Therefore, the Plaintiffs are clearly able to demonstrate the appropriateness of both declaratory relief and writ of mandamus. Consequently, this defeats the Defendants Iowa Code
17A claim. Specifically, the assertion that the Defendants failed to meet the jurisdictional filing requirements under the code section by failing to perfect proof of mailing by affidavit. In relevant part, Iowa Code Section 17A.19(2) states;
…Within ten days after the filing of a petition for judicial review the petitioner shall serve by the means provided in the Iowa rules of civil procedure for the personal service of an original notice, or shall mail copies of the petition to all parties named in the petition and, if the petition involves review of agency action in a contested case, all parties of record in that case before the agency. Such personal service or mailing shall be jurisdictional. The delivery by personal service or mailing referred to in this subsection may be made upon the party’s attorney of record in the proceeding before the agency. A mailing shall be addressed to the parties or their attorney of record at their last known mailing address. Proof of mailing shall be by affidavit….
Despite the fact that Iowa Code Section 17A is not applicable to this matter, the Plaintiffs personally served the Defendants in this matter on January 10, 2014. Subsequently, an Affidavit of Service was filed with the court, which is attached hereto.
By demonstrating this matter is not one of judicial review, the Plaintiffs are able to demonstrate that declaratory relief and writ of mandamus are appropriate. Thereby, disqualify discredited by the Defendants contention of the lack of an Affidavit of Service.
III. Conclusion
As clearly demonstrated above, the facts of the case clearly support their action for
Declaratory Relief, Injunctive Relief and a Writ of Mandamus. The Plaintiffs have also successfully
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stated a claim upon which relief can be granted. Therefore, as set forth by Federal Rule of Civil
Procedure 12(b), such facts should be viewed as true when ruling on this Motion—thus viewing them in a light most favorable to the Plaintiffs.
WHEREFORE, the Plaintiffs respectfully request that the Defendants’ Motion be denied based upon the foregoing reasons as addressed above.
HEDBERG & BOULTON, P.C.
______
______Nathaniel R. Boulton, AT0000992 Mark T. Hedberg, AT0003285 100 Court Avenue, Suite 425 Des Moines, IA 50309 Tel: 515 288-4148 Fax: 515 288-4149 [email protected] [email protected]
Attorneys for Plaintiffs
Original filed.
Copies served via Electronic Filing, with Defendants served via personal service upon the Attorney General.
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IN THE DISTRICT COURT FOR POLK COUNTY ) DANNY HOMAN, STEVEN J. ) SODDERS, JACK HATCH, PAT ) Case No. EQCE075765 MURPHY, and MARK SMITH, ) ) Plaintiffs, ) ) v. ) DEFENDANTS’ REPLY TO ) PLAINTIFFS’ RESISTANCE TERRY BRANSTAD, GOVERNOR ) TO DEFENDANTS’ STATE OF IOWA and CHARLES M. ) MOTION TO DISMISS PALMER, IOWA DEPARTMENT OF ) HUMAN SERVICES DIRECTOR, ) ) Defendants. ) )
COME NOW the Defendants, Terry Branstad, Governor of the State of Iowa,
and Charles M. Palmer, Director of the Department of Human Services, by and through
the undersigned counsel, and file this reply to Plaintiffs’ Resistance to Defendants’
Motion to Dismiss.
STANDING
Plaintiffs make a two-pronged response to Defendants’ standing argument. First,
Plaintiffs assert that whether as citizens, taxpayers, or legislators, they have an interest in
ensuring that the laws of the State are properly enforced. Faithful execution of the law is
undoubtedly a laudable goal. Neither the Iowa Supreme Court nor the United States
Supreme Court, however, has held that such claims are sufficient to establish the injury-
in-fact required for standing. Godfrey v. State, 752 N.W.2d 413, 417 (Iowa 2008); Allen v. Wright, 468 U.S. 737, 754, 104 S. Ct. 3315, 3326 (1984) (“[A]n asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.”); Schlesinger, Sec. of Def. v. Reservists Comm. to Stop
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the War, 418 U.S. 208, 223 n.13, 94 S. Ct. 2925 , 2933 n.13 (1974) (“[T]he abstract injury in nonobservance of the Constitution” is insufficient to confer standing.).
Plaintiffs misconstrue the Iowa Supreme Court’s decision in Hurd v. Odgaard,
297 N.W.2d 355 (Iowa 1980). In Hurd, two lawyers brought a mandamus action to compel Ida County to repair the county courthouse. Hurd, 297 N.W.2d at 356. While the court held that the plaintiffs had standing to proceed, it was not their status as lawyers or taxpayers which gave rise to a supporting, identifiable interest. Id. at 358. Instead it was the plaintiffs’ status as users of the courthouse which gave rise to an interest above and beyond that of the general public. Id. (noting that the county courthouse is the place
“where citizens go to pay taxes, obtain license, record instruments, and attend court”); accord Godfrey, 752 N.W.2d at 420 (interpreting Hurd). None of the Plaintiffs have alleged that they “use” the Iowa Juvenile Home or have a more basic connection with the
Home above or beyond that of the average citizen. As a result, the Plaintiffs have not alleged a particularized injury sufficient to confer standing.
Second, Plaintiffs assert that Danny Homan has standing as president of
AFSCME Iowa Council 61. Mr. Homan has filed an affidavit attesting to this fact. At the outset, Defendants would stress that Mr. Homan did not plead his status as the union president in the Petition. In any event, in his affidavit he does not assert that he has the legal right to represent the union’s interest in this suit. AFSCME is not a named party to this suit. Plaintiffs have not pointed to any support, and Defendants are aware of none, which would confer a special standing status on a union president who is not representing the union in this action.
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Even assuming that AFSCME was a party to the suit or that Mr. Homan could assert the union’s interests, this does not establish standing. AFSCME does not have standing to pursue the claim at issue here. At best, Plaintiffs are bringing a constitutional claim—asserting that the Iowa Constitution prohibits “impoundment.” AFSCME has no particularized interest to assert this claim. AFSCME has the ability to enforce violations of the Collective Bargaining Agreement or Iowa Code chapter 20. Plaintiffs have not alleged a violation of the CBA or chapter 20.
Finally, even assuming that AFSCME was a party to this suit and had standing, it would be prohibited from bringing this direct claim. Under the CBA, AFSCME is required to file a grievance. Iowa Code § 20.18. This is the union’s exclusive remedy for violations of the CBA and chapter 20. Presumably both AFSCME and Mr. Homan are aware of the need to grieve violations of the CBA and chapter 20 as they filed a grievance on December 19 concerning the Home’s closure. See Ex. 1. As a result of this grievance, the State and AFSCME entered into a Memorandum of Understanding. See
Ex. 2.
The court may question if these Plaintiffs do not have standing, who has standing to bring this claim. That question, of course, presumes that Plaintiffs are bringing a recognized claim. No one has standing to bring a claim of impoundment because there is no cause of action for impoundment in Iowa. This does not mean, however, that the closure of the Iowa Juvenile Home is not subject to review. AFSCME has already pursued a grievance on behalf of the Home’s employees. Juvenile court judges across the
State have adjudicated the best interests of the minors previously residing in the home.
The General Assembly is currently considering a multitude of options regarding the
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Home, including its reopening. The only issue presented here is that these plaintiffs
cannot bring this claim concerning the Iowa Juvenile Home.
FAILURE TO STATE A CLAIM
Plaintiffs continue to assert that they are bringing a claim “based on Defendant
Governor’s impoundment and misappropriation of funds.” Plaintiffs, however, have wholly failed to point to the legal support for their claim. They do not cite to any Iowa
Supreme Court case recognizing a cause of action for impoundment. They do not cite to any provision of the Iowa Code recognizing a cause of action for impoundment. The only citation they have provided for their unprecedented action—in their request for a preliminary injunction—is the Take Care Clause of the Iowa Constitution.1 Plaintiffs,
however, cite no authority that the Take Care Clause prohibits impoundment let alone that the Take Care Clause creates a private right of action for its violation.
Plaintiffs acknowledge the utter lack of authority for their suit. In their resistance,
Plaintiffs noted, “The fact that Plaintiffs ‘failed to cite authority’ is based upon the minimal authority that exists concerning the matter.” Resistance at 6. Paradoxically,
Plaintiffs assert that “the nonexistence of Iowa Supreme Court case law” is irrelevant. Id.
Other jurisdictions have recognized a cause of action for impoundment. Those
jurisdictions, however, have what Iowa lacks—a constitutional or statutory basis for an
impoundment cause of action. For example, impoundment is governed under federal law
1 It is unclear whether the Plaintiffs are bringing a single cause of action for impoundment, which they assert is prohibited under the Take Care Clause or whether the Plaintiffs are asserting two claims, one for impoundment and one for violating the Take Care Clause of the Iowa Constitution. The Take Care Clause is not mentioned in the Petition.
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by the Congressional Budget and Impoundment Control Act of 1974. 2 U.S.C. §§ 601-
688.
Because Plaintiffs cannot point to any legal basis for their impoundment claim, they also cannot define impoundment. Does impoundment exist when a state agency does not spend every dollar appropriated to it? Does impoundment exist when the
Governor or the agency can fulfill legislative objectives through a lesser expenditure of funds than appropriated?
Contrary to Plaintiffs’ assertions, if a cause of action exists here it must be found in the Iowa Administrative Procedure Act. Plaintiffs ignore the simple reality that the only individual with the legal authority to “close” the Iowa Juvenile Home is the Director of the Department of Human Services. Whatever action or inaction taken by the
Governor’s Office in this regard is irrelevant. Legally it was an agency decision, reviewable under Iowa Code section 17A.19. The mere allegation that the Governor’s
Office directed or supported an agency decision is not sufficient to remove this case from
the ambit of the IAPA. If it was, the exclusivity provision and the entire statutory scheme
of chapter 17A would be undermined.
CONCLUSION
For the reasons expressed above, Defendants pray that their motion to dismiss be
granted.
Respectfully submitted,
THOMAS J. MILLER ATTORNEY GENERAL OF IOWA
5 APP 67 E-FILED 2014 JAN 31 10:48 AM POLK - CLERK OF DISTRICT COURT
/s/ Jeffrey S. Thompson ______JEFFREY S. THOMPSON Solicitor General of Iowa
/s/ Timothy L. Vavricek ______TIMOTHY L. VAVRICEK Assistant Attorney General
/s/ Meghan L. Gavin ______MEGHAN L. GAVIN Assistant Attorney General Iowa Department of Justice Hoover State Office Bldg., 2nd Fl. 1305 East Walnut Street Des Moines, Iowa 50319 Phone: (515) 281-6858 Fax: (515) 281-4209 Email: [email protected] Email: [email protected] Email: [email protected]
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APP 76 E-FILED 2014 MARIN THE 12 11:32 SUPREME AM POLK COURT - CLERK OF IOWA OF DISTRICT COURT
DANNY HOMAN, STEVEN J., Supreme Court No. 14-0178 SODDERS, JACK HATCH, PAT MURPHY, AND MARK SMITH
Plaintiffs, District Court No. EQCE075765 v. CERTIFICATE OF FILING
TERRY BRANSTAD, GOVERNOR, STATE OF IOWA and CHARLES M. PALMER, IOWA DEPARTMENT OF HUMAN SERVICES DIRECTOR,
Defendant.
I, Janis A. Lavorato, hereby certify that on the 7th day of March, 2014, Jeffrey S. Thompson, ordered the following transcript:
Transcript of hearing from hearing held on January 31, 2014
in the above captioned matter by serving a copy of the combined certificate. I further certify that on the 12th day of March, 2014, I filed the following transcript:
Transcript of hearing held on January 31, 2014
with the clerk of the supreme court.
___/s/ Janis Lavorato______Janis A. Lavorato, CSR 500 Mulberry Street, Rm 405 Des Moines, Iowa 50309 515-286-3234 [email protected]
CERTIFICATE OF SERVICE The undersigned certifies a copy of this reporter’s certificate was served on the 12th day of March, 2014, upon the following persons and upon the clerk of the supreme court:
Jeffrey Thompson Timothy Vavricek Clerk of District Court Mark Hedberg Meghan Gavin Polk County Courthouse Nathanial R. Boulton Assistant Attorneys General E-Filed 100 Court Ave. Suite 425 Hoover State Office Building Des Moines, Iowa 50309. 1305 East Walnut Street e-mailed Des Moines, Iowa 50319 [email protected] e-mailed
1 of 3 APP 77 E-FILED 2014 MAR 12 11:32 AM POLK - CLERK OF DISTRICT COURT _/s/ Janis Lavorato______Janis A. Lavorato, CSR 500 Mulberry Street, Rm 405 Des Moines, Iowa 50309 515-286-3234 [email protected]
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State of Iowa Courts Case Number Case Title EQCE075765 DANNY HOMAN ET AL VS TERRY BRANSTAD ET AL Type: OTHER ORDER So Ordered
Electronically signed on 2014-03-12 11:32:19
3 of 3 APP 79 1
1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY
2 ------
3 DANNY HOMAN, STEVEN J.) SODDERS, JACK HATCH, PAT ) 4 MURPHY and MARK SMITH,) ) 5 Plaintiffs, ) CASE NO. EQCE075765 ) 6 ) vs. ) 7 ) TRANSCRIPT TERRY BRANSTAD, GOVERNOR,) OF PROCEEDINGS 8 STATE OF IOWA and CHARLES ) M. PALMER, IOWA DEPARTMENT ) 9 OF HUMAN SERVICES DIRECTOR,) ) 10 Defendants. ) ) 11 ------
12 The above-entitled matter came on for
13 hearing before the Honorable Scott D. Rosenberg,
14 Judge of the Fifth Judicial District of Iowa,
15 commencing at 1:25 p.m. on January 31, 2014, Room 405
16 of the Polk County Courthouse, Des Moines, Iowa.
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24 Janis A. Lavorato, CSR Official Shorthand Reporter 25 Polk County Courthouse Des Moines, Iowa 50309
APP 80 2
1 A P P E A R A N C E S
2 For the Plaintiffs: MARK T. HEDBERG 3 NATHANIEL R. BOULTON Attorneys at Law 4 100 Court Avenue Suite 425 5 Des Moines, Iowa 50309
6 For the Defendants: MEGHAN L. GAVIN 7 TIMOTHY L. VAVRICEK Assistant Attorneys General 8 Iowa Departments of Justice Hoover State Office Building 9 1305 East Walnut Street Des Moines, Iowa 50319 10
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APP 81 3
1 PROCEEDINGS
2 (The following record commenced at
3 1:25 p.m. on January 31, 2014.)
4 THE COURT: The matter before the Court is
5 EQCE No. 75765; Danny Homan, Steven Sodders, Jack
6 Hatch, Pat Murphy, Mark Smith, Plaintiffs, v. Terry
7 Branstad, Governor of the State of Iowa; Charles M.
8 Palmer, Iowa Department of Human Services Director.
9 We have before the Court at this time an
10 application for preliminary injunction; also, a
11 motion to dismiss filed by the defendants. Is that
12 correct?
13 MS. GAVIN: Yes, Your Honor.
14 THE COURT: Is that correct?
15 MR. HEDBERG: Yes, Your Honor.
16 THE COURT: Very well. You may proceed
17 with the -- how do you want to proceed?
18 MR. HEDBERG:I was just asking ahead of
19 time. They filed a motion to dismiss at the same
20 time we've asked for preliminary injunction.I guess
21 if you grant a motion to dismiss, the preliminary
22 injunction goes away.
23 THE COURT: All right. We'll go with the
24 motion to dismiss first. You may proceed.
25 MR. VAVRICEK: Thank you, Your Honor. May
APP 82 4
1 I stand?
2 THE COURT: Stand or sit, whatever you
3 wish.
4 MR. VAVRICEK: Your Honor, my name is Tim
5 Vavricek from the Attorney General's Office.Along
6 with me is Meghan Gavin.
7 With your permission, after some brief
8 remarks, Ms. Gavin and I would like to split our time
9 on the motion in accordance with parts of the brief
10 that we worked on. She worked on the standing
11 portion, and I worked on the failure to state a
12 claim.
13 THE COURT: No problem.
14 MR. VAVRICEK: Thank you, Your Honor. This
15 case -- the underlying issues that gave rise to this
16 case, obviously, involve very difficult questions of
17 public policy. Surely there aren't more important
18 things than how best to care -- a society would care
19 for its children, especially children who are
20 vulnerable children who have been adjudged to be
21 children in need of assistance or to be delinquent.
22 THE COURT: You say this is a public policy
23 issue before the Court?
24 MR. VAVRICEK: No, no.I was -- what I
25 was --
APP 83 5
1 THE COURT: Because I don't decide public
2 policy issues.
3 MR. VAVRICEK: Not at all, Your Honor.
4 THE COURT:I thought the issue is whether
5 or not they are entitled to an injunction.
6 MR. VAVRICEK: It is. The question --
7 THE COURT: So why don't you talk to me and
8 tell me why they don't have legal standing.
9 MR. VAVRICEK:I was just about to say what
10 this case was not.I was going to say this case does
11 not involve those difficult questions of public
12 policy. What gave rise to the lawsuit certainly did.
13 That's why we're here, as a matter of fact, perhaps.
14 But the issues for this Court today, we
15 believe, are simple: They are legal, and they are
16 governed by Iowa Supreme Court precedence.I hadn't
17 gotten to my winning line yet, Your Honor.
18 And, with that, Ms. Gavin will talk about
19 standing, and then I'll talk about failure to state a
20 claim.
21 THE COURT: Very well.
22 MS. GAVIN: Thank you, Your Honor.
23 The first ground for a motion to dismiss,
24 and it's dispositive in and of itself, is standing.
25 And standing, we think, is essentially important in
APP 84 6
1 this case because it would ensure that the Court has
2 before it the most interested parties to the action
3 and, therefore, is afforded the best advocacy to make
4 sure that these issues regarding the closure of the
5 Iowa Juvenile Home are handled in the most efficient
6 and effective way.
7 If we look to the petition, it appears that
8 we have five plaintiffs: Mr. Homan purports himself
9 to be -- in the petition -- to be a citizen, resident
10 and taxpayer. The other four plaintiffs are also, of
11 course, citizens. Rather than just taxpayers of
12 Iowa, they are also members of the Iowa General
13 Assembly,I believe two senators and two members of
14 the House.
15 If you look to what they have pled for
16 standing, we believe in paragraph 18 of their
17 petition they have only alleged that they are
18 aggrieved or injured by the actions of the defendants
19 as taxpayers and citizens.
20 I will first turn to the question of
21 citizen or resident standing.I think that we have
22 cited the most pertinent cases from the Iowa Supreme
23 Court and the United States Supreme Court that there
24 is no such thing as citizen and resident standing.
25 By definition, if you're asserting your
APP 85 7
1 right as a citizen, you're saying that your interest
2 is the same as everyone else. The plaintiffs have
3 the same interests that I do, that Your Honor does,
4 that everyone in this courtroom does as to this
5 issue, but that is not the particularized injury that
6 is necessary to demonstrate that you have sufficient
7 standing.
8 The next issue is taxpayer standing. We
9 get taxpayer standing claims a lot.I will admit,
10 Your Honor, this is the first one that I have seen
11 where they are alleging taxpayer standing when the
12 government is not expending funds. Almost all the
13 cases go when the government is either expending more
14 funds or it's spending funds in a manner the
15 taxpayers dislike or believe is unlawful.
16 THE COURT: Does that make a difference?
17 MS. GAVIN:I believe it does on the injury
18 prong, Your Honor. The Iowa Supreme Court has talked
19 about taxpayer standing in that taxpayers are
20 aggrieved if their taxes go up, if their taxes are
21 affected.
22 THE COURT: What if they want -- the
23 citizens want their taxes to go to something that is
24 important to them, like a law?
25 MS. GAVIN: That would well be true, Your
APP 86 8
1 Honor, but that ultimately kind of goes back to the
2 circular argument of wanting the law to be enforced,
3 and that's still the same standing everyone has.
4 It's not a unique, particularized injury that's
5 different than taxpayers and every other citizen or
6 resident of the state does not have.
7 THE COURT: You can't visualize where a
8 taxpayer would feel themselves injured if their
9 government did not do an action they wanted them to
10 do and spend some money?
11 MS. GAVIN:I could see --
12 THE COURT: What about repairing our roads?
13 MS. GAVIN:I can certainly see that
14 argument to be made.I think the problem is if we
15 take taxpayers standing to that next level, that
16 we've ultimately recognized citizen and resident
17 standing, and we've made standing to commonplace that
18 we've lost that nexus of the injury.
19 THE COURT: So we allowed too much access
20 to the courts?
21 MS. GAVIN: Well,I think that then we're
22 not ensuring that we're having the proper plaintiffs.
23 It's not about access. It's about who is best-suited
24 to make these arguments, and I think that certainly
25 in your hypotheticals, Your Honor, taxpayers and
APP 87 9
1 citizens have an interest. That is the first prong.
2 The second prong is injury. Do they have
3 an injury?I don't think they do.
4 Now, if that same person from your example,
5 Your Honor, was in a car accident or was somehow
6 adversely affected because the road wasn't there,
7 wasn't able to get to work or something of that
8 nature, that would be a particularized injury to that
9 taxpayer where I think standing could be recognized.
10 The next issue goes to legislative
11 standing.I will note I don't believe that the
12 plaintiffs have asserted legislative standing in this
13 case, but we also can't ignore the simple fact they
14 are, indeed, members of the Iowa General Assembly.
15 And on this issue,I believe, the Iowa
16 Supreme Court first recognized legislature standing
17 in the Alons case and has adopted federal law
18 exclusively in regard to this issue. And legislators
19 do, indeed, have an interest in ensuring the
20 effectiveness of their votes, but that only goes so
21 far.
22 For example, they have an interest in
23 assuring that how they vote and when they vote, that
24 is done in a legal way. For example, is there a
25 quorum of the General Assembly present that would
APP 88 10
1 allow a vote to be lawfully taken? Did the president
2 of the Senate exercise some improper procedures
3 calling for the vote, things of those regards, that
4 go to the procedures of how they vote?
5 They also have legislative standing when it
6 comes to line-item veto because that goes to how
7 their vote is overturned.
8 The effectiveness of their votes, interest
9 and injury, however, Your Honor, doesn't extend to
10 that next level, to ensure that the laws that they
11 pass are executed by the executive branch or
12 interpreted by the judicial branch in the manner that
13 they intended. They, in those circumstances, have
14 the same interest as every other citizen in Iowa.
15 In that regard, Your Honor, we cited a case
16 from the Third Circuit, Russell v. DeJongh. We think
17 it's right on point. And that Court said,"The
18 authorities appear to hold uniformly that an official
19 mere disobedience or flawed execution of a law for
20 which a legislator voted is not injury, in fact, for
21 standing purposes."
22 And we think that's exactly the issue here.
23 These legislators voted for this appropriation bill,
24 or at least voted on this appropriation bill, and now
25 are bringing a claim to enforce the appropriation
APP 89 11
1 bill, and they do not have an injury, in fact, for
2 standing.
3 The last issue related to standing, Your
4 Honor, goes to the affidavit that was filed by
5 Mr. Homan, along with their resistance.
6 The resistance in that affidavit seemed to
7 suggest that Mr. Homan has standing as he is
8 president of AFSCME. That is, of course, undoubtedly
9 true. I'm not going to dispute that factual point.
10 What is important to note, however, is that
11 he did not plead that he was president of AFSCME in
12 the petition, nor is AFSCME a party in this lawsuit.
13 Also absent in the affidavit is any allegation that
14 Mr. Homan is here with the legal authority to
15 represent the union and to pursue their interests.
16 Even if all of those issues were ignored,
17 allowing the union to become a party to this suit, we
18 believe, would be frivolous. The union and union
19 members' interest in this case -- and, of course,
20 they do have an interest. That can't be disputed.
21 The interest goes to the reduction in force or the
22 layoffs that occurred for the union members.
23 Your Honor, those are issues that are
24 covered by the collective bargaining agreement, are
25 covered by Iowa Code Chapter 20. That is the remedy
APP 90 12
1 for those interests, and I would note that those
2 interests have been addressed to the best that they
3 are capable today at this point.
4 Mr. Homan, on behalf of the union, filed a
5 grievance. We have attached that grievance as
6 Exhibit 1 to the reply that was filed today. That
7 grievance,I believe, was filed on December 19th. In
8 response to that, the State and AFSCME have entered
9 into a memorandum of understanding that is executed
10 and binding. That is the exclusive remedy to address
11 those concerns that the union does have.
12 So the question then becomes, does the
13 union or Mr. Homan have an interest beyond that for
14 this particular action? And the answer is no.
15 MR. VAVRICEK: With respect to our argument
16 that the petition fails to state a claim upon which
17 relief can be granted, of course, the standard is
18 familiar. We look at the four corners of the
19 petition. We take all the allegations in the light
20 most favorable to the plaintiffs.
21 Here we have five pages and twenty
22 paragraphs, and what is interesting about this
23 petition is there is no claim in the petition. There
24 is no citation to a constitutional provision or a
25 statute or the common law that has been violated.
APP 91 13
1 When we analyze the petition, however,
2 giving the plaintiffs the benefit of the doubt, there
3 is a line that says an unconstitutional impoundment.
4 And so in our materials we have construed that to
5 mean a violation of the Take Care Clause of the Iowa
6 Constitution, which is Article IV, Section 9. It
7 says,"The governor shall take care that the laws are
8 faithfully executed."
9 And we believe their resistance confirms
10 this understanding of how they believe their petition
11 is styled. So we believe there's one constitutional
12 claim. Of course, that could only be against the
13 governor. There is also named as a defendant the
14 Director of the DHS, Mr.--
15 THE COURT: Palmer.
16 MR. VAVRICEK:-- Palmer, but, of course,
17 Mr. Palmer is not charged under the Constitution with
18 faithfully executing laws.
19 The first thing about this,I actually went
20 and key-cited, shepardized, this actual provision,
21 and there's really not much. And,I think, as the
22 plaintiffs concede in their resistance materials,
23 there's no law on point here. The Iowa Supreme Court
24 has not really construed this very much.
25 There's one case I want to talk about where
APP 92 14
1 it's mentioned, and I think it can be instructive,
2 and that is the AFSCME case from 1992. But I think
3 the important thing to remember here, especially as
4 we will talk about later with the request for a
5 temporary injunction, this Doctrine of
6 Unconstitutional Impoundment is not recognized in
7 Iowa.
8 And so when you go through the materials
9 that they cite, the persuasive authorities of the
10 larger articles from Justice Appel as well as the
11 attorney general's opinions from the last few
12 decades, those articles and persuasive authority make
13 clear that this isn't a recognized doctrine in Iowa,
14 perhaps in other states. And there are different
15 constitutional provisions in other states. And the
16 federal government, for example, has a statute on
17 this, and that's cited in the Justice Appel article.
18 We don't have that here.
19 But I would like to begin with the
20 appropriations bill and the language of that
21 appropriations bill. And if you look at the actual
22 language of the bill, it says,"Not more than a
23 certain amount shall be spent on the Iowa Juvenile
24 Home." And it also says,"It shall be spent as is
25 necessary."
APP 93 15
1 This is unlike what you can imagine an
2 appropriations bill could say, and it should say,
3 "The executive branch shall spend 'X' amount of
4 dollars on X,Y,Z." That's not the language we're
5 dealing with.
6 And if you go back to the --I believe it's
7 the 1980 attorney general opinion, and I have it as
8 page star 6, there is the observation that when these
9 sort of impoundment claims get resolved throughout
10 the states, distinctions are drawn between bills that
11 make mandatory expenditures and those that delegate
12 discretion, and we believe this language itself
13 implies some discretion.
14 THE COURT: To the point of when you say
15 "not more than necessary," can that mean zero?
16 MR. VAVRICEK:I think if it were
17 determined that "as necessary" meant nothing was
18 necessary, it could be zero because that would
19 satisfy both if it wasn't necessary and it was as up
20 to.
21 But in this case we don't have to deal with
22 that because significant funds have been spent on the
23 Iowa Juvenile Home during this fiscal year and will
24 be spent, regardless, on the juvenile home, whether
25 it's open or closed.
APP 94 16
1 Also,I would take that language of the
2 appropriations bill, and I would read it with other
3 laws that the legislature has passed over the years.
4 Chapter 8, which is cited in our materials --
5 provisions of Chapter 8 contemplate expressly that
6 not all money in an appropriations bill will be
7 spent. There can be transfers both on an
8 intra-agency and inter-agency basis, and
9 modifications of the appropriation can be made in
10 consultation with department directors and the
11 governor's office.
12 With respect to the constitutional
13 provision itself, however, it says,"He shall take
14 care that the laws are faithfully executed." We do
15 not have an allegation in this petition that the
16 governor did not act in good faith. There is no
17 allegation that he acted in bad faith, and we think
18 that's important.
19 First of all, it comports with the language
20 of the constitutional provision, but also in this
21 AFSCME case from 1992 -- and, granted, it was in a
22 different context -- but in the course of citing
23 Article IV, Section 9, and that's 484 N.W.2d 393,
24 396, the Iowa Supreme Court affirms the district
25 court's factual finding that the governor did not act
APP 95 17
1 in bad faith and said that the courts, the judicial
2 branch, would not intercede in the appropriations
3 process when -- it will only do so when there is an
4 adjudicated state obligation that has been
5 unenforced.
6 And, see, here, we think the cart is being
7 put before the horse. And I'm just about going to
8 talk to in that this is really judicial review of
9 agency action. One cannot, we do not believe under
10 this provision, directly sue the governor for acting
11 in bad faith in his execution of the laws without a
12 judicial finding ahead of time that it would be wrong
13 in this case not to spend all the money.
14 And we think it's especially important in
15 this case when the language of the bill is not as
16 mandatory as the plaintiffs have suggested. And I
17 would note the plaintiffs do not respond to this
18 argument about the language of the bill in any of
19 their resistance materials, and we think that is
20 appropriate, especially in light of Chapter 8.
21 Now, the question then becomes, well, if
22 you need to adjudicate whether the underlying
23 decision was wrong or not not to spend money, what is
24 that claim, and we believe that's a classic case of
25 judicial review.
APP 96 18
1 The Department of Human Services by
2 statute, under Chapter 212 and others, is in charge
3 of the juvenile home, and it is an administrative
4 agency decision under 17A that would be in truth be
5 challenged here. The problem is this petition
6 clearly does not meet 17A standards, as a matter of
7 pleading, or as a matter of all the technical
8 requirements that go along with 17A actions.
9 So, for example, as we all know, a judicial
10 review action is an appellate proceeding. Their
11 notice pleading doesn't apply. One must allege the
12 specific provisions in 17A.19 (10) on reasonable,
13 arbitrary, those sorts of things. Those things need
14 to be pled in the petition. The Iowa Supreme Court
15 has interpreted those provisions strictly because
16 Chapter 17A is the exclusive means by which someone
17 who claims they are aggrieved by agency action must
18 proceed.
19 And the cases, for example, even the
20 affidavit of service -- you must have an affidavit of
21 service. There have been cases where an original
22 notice -- the Neumeister case, for example, there was
23 an original notice, but that wasn't sufficient.
24 So we believe 17A against the department is
25 the exclusive means by which someone claiming to be
APP 97 19
1 aggrieved would have to proceed. Of course, we
2 also -- as Meghan indicated, standing looms large
3 here, but if someone with standing would come along,
4 it would need to go through 17A.
5 Thank you.
6 THE COURT: Thank you. Anything else?
7 MS. GAVIN: No, Your Honor.
8 THE COURT: Response.
9 MR. HEDBERG: Thank you, Your Honor. My
10 name is Mark Hedberg. I'm here with my law partner,
11 Nate Boulton, and we're accompanied by our law clerk,
12 Sarah Wolfe. Thank you for this opportunity today to
13 speak on this issue.
14 I think I would like to start backwards
15 here, and, first of all, this is a cause of action
16 that exists. It's called impoundment. The law
17 review articles discuss it. It's almost -- it's
18 similar to a line-item veto without the veto because
19 the question becomes, if the governor decides not to
20 spend money that has been lawfully -- that has been
21 appropriated, what's the result? It's, in effect, a
22 line-item veto, but he gets to keep the money and
23 spend it elsewhere, and that's where we think the rub
24 is here.
25 There has been $8.8 million, give or take,
APP 98 20
1 allocated for the operation of the Toledo facility.
2 It doesn't say anything that -- we agree that you
3 don't have to spend that much. But he gets to the
4 point, the governor does, in this case, where the
5 exception swallows the rule; in other words, while
6 there may be a ceiling on it, certainly at some point
7 there is a floor where the legislative intent has
8 been frustrated by the governor's refusal to spend
9 the money.
10 The fact that is a facility at Toledo, it
11 could be the Fort Dodge Correctional Facility, it
12 could be anywhere else, it could be a program that
13 the legislature passed and allocated money for, the
14 governor doesn't like it, all he has to do is not
15 spend the money. And that's where we think
16 impoundment comes into play to the extent it
17 overrides the legislative intent, and, in this case,
18 the operation of the Toledo facility.
19 THE COURT: But they pointed out they've
20 already spent some funds. So what is "as necessary"?
21 MR. HEDBERG: Well, to the extent that it
22 shuts it down, no.I mean, if they can get by
23 spending "X" amount to keep the facility going as a
24 home, which is what it's intended to do, as opposed
25 to having some guy just mowing the lawn,I think that
APP 99 21
1 frustrates the purpose of the Toledo facility.
2 I mean, that's a false claim to say it's
3 still open when, in fact, it's not serving the
4 purpose it's intended to serve, and that is to take
5 care of juveniles. So that's our point.
6 And 17A is not applicable. This is not an
7 administrative action. It's not rule-making. It's
8 not a contested case. This is an unconstitutional
9 impoundment of money that was specifically allocated
10 by the legislature for a specific object with a
11 specific purpose. And he's decided on his own that
12 he doesn't believe that that facility should exist
13 and shut it down or, at least for all practical
14 purposes, shut it down, and I don't think that's in
15 dispute. So, again,I think this is a constitutional
16 issue, not a 17A judicial review issue.
17 And going back to standing, the three
18 standing issues here, taxpayer, citizen, legislative
19 and the effect it's had on employees,I believe there
20 is harm here. And I think we mentioned all along
21 don't the taxpayers have an interest to make sure
22 that the money that has been allocated through the
23 appropriations bill is spent where it should be?
24 In this case, we don't know. He's not
25 spending it. Where is the money going that's out
APP 100 22
1 there? It was intended to be spent on the operations
2 of that facility.
3 So I think there is harm to the taxpayers
4 and to the citizens of Iowa and to the legislators
5 who passed this law.I think there's harm to them as
6 well because now that they passed the law, they've
7 given their intent. It was signed into law, and now
8 that intent is being frustrated by the governor by
9 not spending the money.
10 And I think also we have a situation here
11 where this is a motion to dismiss.I think the
12 facts, the allegations, the theories that we have
13 should be looked at in the best light to go forward
14 with this in terms of ultimate trial of the case, and
15 I think that that should be taken into account, too,
16 when you make a ruling on this.
17 As far as anything else is concerned, Nate?
18 MR. BOULTON: Yes.I just want to add a
19 couple of points on standing and the injury issue
20 that was mentioned.
21 Certainly, there is an injury when the
22 Constitution of Iowa is ignored, essentially, by the
23 governor's office, and the legislators have an
24 absolute interest and,I would think, duty to stand
25 up for the legislative process when a lawfully
APP 101 23
1 enacted bill is essentially nullified by this
2 governor's action to close down the facility and make
3 it so we aren't serving juveniles in the juvenile
4 home just by funds being appropriated for that
5 specific purpose to be used.
6 And Mr. Homan's standing and his injury is,
7 obviously, he is the representative of the bargaining
8 union employees that work at that facility. This is
9 not a contractual issue. This is not a collective
10 bargaining agreement issue.
11 The injury happened to his employees
12 because the Constitution of Iowa was violated, and
13 he's standing up for those represented workers as
14 part of his duties as AFSCME president, but also as a
15 concerned citizen of this state who does not want to
16 see the Constitution affected adversely by a single
17 governor's action.
18 The language between the legislative powers
19 and the governor's powers are critically important to
20 the function of state government, and it's recognized
21 by our legislators, who are part of this claim, as
22 well as Mr. Homan.
23 THE COURT: Paragraph 18 of your petition
24 only mentions the plaintiffs as taxpayers and
25 citizens.
APP 102 24
1 MR. HEDBERG:I think it mentioned senators
2 and legislators too, Your Honor.
3 THE COURT: In 18?
4 MR. HEDBERG: Well, in one paragraph I do,
5 if you look at the beginning. Where is my petition
6 at?
7 THE COURT: You mean paragraphs 2, 3, 4 and
8 5?
9 MR. HEDBERG: Right.I think that mentions
10 who they are, that they are senators and
11 representatives.
12 THE COURT: Sorry to interrupt,
13 Mr. Boulton. You have something else?
14 MR. BOULTON: One other thing I would
15 mention is if there's a defect in the petition in
16 terms of identifying the legislators or Mr. Homan as
17 more than simply citizens and taxpayers to clarify
18 that they are representatives of the General
19 Assembly, Mr. Homan is the president of AFSCME, the
20 state employees' union.
21 The remedy is not simply to dismiss the
22 claim, but to correct the petition so the Petition
23 can go forward. But we feel, like with notice
24 pleadings, it has been met by identifying the
25 legislators as state representatives, state senators,
APP 103 25
1 and with the Homan affidavit clarifying that he's
2 president of AFSCME.
3 THE COURT: Impoundment, has that been a
4 recognized doctrine in Iowa?
5 MR. HEDBERG: What?
6 THE COURT: Has impoundment recognized --
7 MR. HEDBERG: It's been discussed by
8 attorney general opinions. It's been discussed in
9 law review articles. It's a theory. Of course,
10 there's no supreme court case on it, but if that's
11 the standard, then we'd never have anything more than
12 the constitution.
13 I mean, that's what judges do, is decide
14 these theories and whether or not they are applicable
15 or not. So just because they are absent at the
16 appellate level doesn't mean they don't exist.I
17 guess that's the point I would make.
18 MR. BOULTON: And to add to that, Your
19 Honor, if you take the position that the attorney
20 general's office is taking, we will never know if we
21 have an impoundment status in Iowa because it's going
22 to be extremely hard for anyone to have standing if
23 you accept their argument and their position of
24 having any more injury than an injury to the
25 Constitution to create taxpayer standing, legislature
APP 104 26
1 standing, or Mr. Homan standing as a representative
2 of the public employees.
3 THE COURT: Anything else?
4 MR. HEDBERG: No, Your Honor.
5 THE COURT: Anything else? You have the
6 last word on this issue.
7 MS. GAVIN: Yes, Your Honor. Just a couple
8 of issues.
9 I don't think anyone would argue that the
10 Constitution and, in turn, the Constitution of Iowa
11 is enforced faithfully is not a lot of bull. That's
12 not the issue. The issue is whether or not these
13 plaintiffs have a particular injury or a particular
14 interest in ensuring that the Iowa Constitution is
15 faithfully followed, and they don't above that from
16 anyone else in this state and, they have not argued
17 that they have.
18 THE COURT: Who, in your estimation, would?
19 MS. GAVIN: And that's the important
20 question, Your Honor: Who would have standing if
21 these don't, these plaintiffs don't.
22 First of all,I would assert that that
23 assumes that the claim they are bringing is
24 recognized, that anyone could have standing to bring
25 an impoundment claim. And since we don't believe
APP 105 27
1 impoundment exists, no one would because the claim
2 doesn't exist.
3 Your Honor, I'm creative.I can come up
4 with some ideas, but I think some people certainly
5 would have standing to bring this as a 17A action who
6 could be adversely affected by the Department's
7 action.
8 You know, it's hard for me to guess, and I
9 don't necessarily want to invite a lawsuit, but I
10 suppose people involved in the juvenile court system,
11 potential juveniles, people who wish to be placed at
12 the Iowa Juvenile Home.I think there are people in
13 this state who could have standing to bring this
14 claim.
15 I just don't believe that these plaintiffs
16 are the proper people to bring this claim. And
17 although we haven't articulated as such,I think
18 there's some discussion or some attempt to waive
19 standing here under, perhaps, the Great Public
20 Importance Doctrine that the Iowa Supreme Court
21 recognized in the Godfrey case as an exception to
22 standing.
23 I would note, although the Iowa Supreme
24 Court has recognized this exception to standing in
25 Iowa, since it's not a jurisdictional requirement,
APP 106 28
1 generally,I will say, however, that it is for a 17A
2 action because it's a statutory requirement to be
3 adversely affected.
4 The Iowa Supreme Court has never applied
5 the Great Public Importance Doctrine. It didn't
6 waive it in this Godfrey case to allow her to
7 challenge a line-item veto. Even though she was the
8 only person left in the state who could challenge it,
9 they said that still wasn't enough.
10 The Court of Appeals didn't waive it in the
11 George v. Schultz case to allow some Des Moines
12 attorneys to challenge the composition of the
13 judicial retention ballot. Although it's been
14 discussed, like impoundment, it's still a theoretical
15 concept in the State of Iowa.
16 The citation for the Godfrey case is
17 752 N.W.2d 413. The George v. Schultz case isn't
18 published, but can be found at 2011 Westlaw 6077561.
19 THE COURT: What about Wallace? I'm
20 interested in that case.I see you cited that in
21 your motion to dismiss.
22 MS. GAVIN: I'm trying to figure out all
23 the different cases.
24 THE COURT: Just to give you,I guess,
25 some refreshment, you said in your brief that this
APP 107 29
1 recognition regarding standing is due to the common
2 sense observation that taxpayers have an interest in
3 ensuring their tax dollars are lawfully spent.
4 MS. GAVIN: That is true. And I will say,
5 Your Honor, it's undoubtedly the case that taxpayers'
6 standing in Iowa is far broader than it is in the
7 federal level. That is, of course, true.
8 States have recognized much more taxpayer
9 standing. But I do think, Your Honor, if we're going
10 to continue to recognize standing, there has to be
11 some sort of limit; that there has to be more than an
12 interest that's particular to these taxpayers.
13 That's different than the faithful execution of a
14 law, because then it would just be the same as a
15 citizen, and they would be essentially in the same
16 position.
17 So I do agree that it's broader, and where
18 the contours are are admittedly sometimes gray.I
19 just don't think it's found in this case, and they've
20 shown in a particularized case different.I mean, by
21 their own allegation, we're not spending money.
22 And not to jump ahead to the next motion,
23 you know, to discuss the preliminary injunction,I
24 think it will be clear to the Court when we're done
25 discussing those issues that we're not going to be
APP 108 30
1 spending money in an unlawful way. There's no
2 intention to do so, and appropriated money is not
3 going to be spent for another purpose. And so I
4 think in that instance the taxpayers don't have a
5 particularized injury as taxpayers. They certainly
6 have an interest, but no injuries.
7 THE COURT: So not all the 8 million-plus
8 has been spent; correct?
9 MS. GAVIN: No.A great portion of it has
10 because we're halfway through the fiscal year.
11 THE COURT: Okay.
12 MS. GAVIN: And a large portion of it will
13 continue to be spent. But, no,I don't think there's
14 a state of facts that all 8.8 million will be spent.
15 THE COURT: What is going to happen to the
16 rest of the money?
17 MS. GAVIN: It will be reverted back or
18 transferred in accordance with Iowa Code Chapter 8 at
19 the end of the fiscal year, either transferred
20 inter-agency or reverted back to the general fund, as
21 is contemplated by Iowa law.
22 THE COURT: Okay. Anything else?
23 MS. GAVIN: No, Your Honor, not from me.
24 THE COURT: Sir?
25 MR. VAVRICEK: No, Your Honor.
APP 109 31
1 THE COURT: Okay. Take that under
2 advisement and go to the next issue.
3 MR. HEDBERG: Your Honor,I think --I
4 don't want to run over the same ground again, but the
5 elements of the preliminary injunction are success on
6 the merits. And, of course, this isn't the same
7 requirement as it would be as if we're actually at a
8 trial on the merits.
9 So I think that there is some -- the proof
10 necessary or the arguments necessary don't amount to
11 that, but we believe that the merits of the case,
12 based on the theory of impoundment, are there for us.
13 I think that the appropriation itself says it's to
14 operate this facility, and that's not what the money
15 is being used for. It's not being spent.
16 And so, again, the merits of the case come
17 back to whether or not we have a claim, and we've
18 discussed that.
19 The second element is the irreparable harm,
20 and we believe that that will be demonstrated or has
21 been demonstrated because, in fact, they have shut
22 the facility down. The money -- we don't know where
23 the money is going, if it reverts back or not. We
24 don't know. We know right now that the facility is
25 not being operated effective January 15th of this
APP 110 32
1 year, 2014.
2 We know that employees have been -- have
3 lost their jobs, booted out. We know that that
4 facility isn't functioning as it has been prior to
5 that date. So there is a harm there.
6 Thirdly, the harm, we believe, is to the
7 Constitution itself in the misappropriation and/or
8 the not spending of the funds necessary.
9 And getting back to that point, again, this
10 is a ceiling, not a floor.I mean, what we're saying
11 here in our case is that if he can get by operating
12 that facility as it was intended with less than
13 $8.8 million or whatever, so be it.
14 But to the extent that he shut it down,
15 that frustrates the legislative purposes, and there
16 is the harm. The frustration of the legislative
17 purpose was the intent to appropriate money for the
18 operations of that facility in Toledo.
19 Anything else you want to add, Nate?
20 MR. BOULTON: Yes.I would just add that
21 the Constitution itself is irreparably harmed if the
22 government is allowed to carry out this action even
23 temporarily while this case is pending in the courts
24 because it has the effect of acting as
25 unconstitutional nullification of legislative intent
APP 111 33
1 that is expressly contradicted by this alternative
2 purpose for these funds.
3 THE COURT: Anything else?
4 MR. HEDBERG: Not at this point.
5 THE COURT: Response?
6 MR. VAVRICEK: Your Honor, we are prepared
7 to introduce evidence on this matter. We have some
8 affidavits.
9 Before I do so,I just want to be
10 clear -- kind of like a motion for directed verdict,
11 I want to make clear that it's their burden for a
12 temporary injunction here, and there is no evidence.
13 And we think that should be in and of itself reasons
14 to deny the motion.
15 The Court in the Kleman v. Charles City
16 Police Depart. case, 373 N.W.2d at 90 (Iowa 1995),
17 made clear that an unverified petition standing alone
18 is not grounds for a temporary injunction. But, with
19 that, if I may approach, Your Honor,I have your copy
20 and a copy for counsel.
21 THE COURT: Sure. Thank you.
22 MR. VAVRICEK: Your Honor, we would move to
23 admit Exhibit -- what has been premarked as Exhibits
24 A and B. They are, for the record, an affidavit.
25 Exhibit A is an affidavit from Jean Slaybaugh. She
APP 112 34
1 is the chief financial officer of the Iowa Department
2 of Human Services.
3 And Exhibit B is an affidavit from LaVerne
4 Armstrong, division administrator for field
5 operations for the Iowa Department of Human Services.
6 Exhibit A has three attachments. Exhibit 1
7 is the Collective Bargaining Agreement, as currently
8 enforced.
9 Exhibit 2 is Mr. Homan's grievance.
10 And Exhibit 3 to Exhibit A is Memorandum of
11 Understanding reached between State of Iowa and the
12 union about the Iowa Juvenile Home.
13 THE COURT: Very well. Any objection?
14 MR. HEDBERG: Nothing to Exhibit A and its
15 attachments.I haven't had a chance to look at
16 Exhibit B yet.
17 THE COURT: Okay. Can you look at it?
18 MR. HEDBERG:I have no objection to
19 Exhibit B.
20 THE COURT:A and B are hereby admitted by
21 regular procedure.
22 MR. VAVRICEK: Thank you, Your Honor.
23 Before I get into my argument,I would
24 just -- because I think it may answer some of the
25 questions that Your Honor had about the -- sort of
APP 113 35
1 the situation.
2 Exhibit A goes to the numbers, and the CFO
3 of DHS testifies here that the legislature
4 appropriated, as we know, not more than $8,859,355
5 for the Iowa Juvenile Home. She has calculated that
6 as of January 8th DHS has spent $3,675,150 million of
7 that appropriation.
8 She then states that DHS intends,
9 throughout the remainder of the fiscal year, to pay
10 for ongoing maintenance and infrastructure support,
11 and there are a lot of costs listed there, and
12 anticipates that we spend an additional approximate
13 2.3 million of that appropriation.
14 She then -- and this is critical. This is
15 contrary to the allegations in their petition and
16 brief in paragraph 6, "DHS has not transferred any
17 funds from the appropriation to any other
18 appropriation or to meet any other financial need
19 within or without DHS, and there is no plan to do
20 so." And she says that if we did so, we follow
21 Chapter 8.
22 Put it a little differently in paragraph 7,
23 their allegation that the money somehow followed
24 these children is simply false. The costs of caring
25 for the children were absorbed by other funding
APP 114 36
1 sources. She also then provides testimony
2 identifying the CPA, the grievance, and the MOU.
3 With respect to the issuance of a temporary
4 injunction, the goal of the temporary injunction is
5 to preserve the status quo. But, Your Honor, these
6 plaintiffs at this point in time are asking Your
7 Honor not to preserve the status quo but to disrupt
8 it.
9 And this isn't a case where Plaintiffs
10 didn't have notice of what was going to happen so
11 that we're sitting here with vastly changed
12 circumstances without notice; to the contrary, you
13 can look at the Homan affidavit, which was attached
14 to their resistance.
15 Mr. Homan had notice of the intent to close
16 the juvenile home on December 5th, as a matter of
17 fact, on December 19th filed a grievance, and later
18 thereafter signed the Memorandum of Understanding.
19 The second big picture issue, Your Honor,
20 the burden. The plaintiffs have a heavy burden for a
21 temporary injunction. Again, the Kleman case that I
22 cited requires sworn evidence. They have presented
23 no evidence at this hearing. We're the only ones who
24 presented evidence.
25 It is an extraordinary remedy, and that's
APP 115 37
1 why the burden is upon them. Plaintiffs' counsel has
2 candidly admitted here and in his briefing that there
3 is no settled Iowa Supreme Court precedence on this
4 alleged unconstitutional impoundment theory.
5 But to grant a temporary injunction, the
6 Iowa Supreme Court cases have said the opposite has
7 to be true. They use the words "clear right to
8 relief,""certain right to relief." Those are the
9 Stafford, the Reed, the Kent Products v. Hoegh cases
10 cited in our brief, and it said,"It should be denied
11 if it's doubtful."
12 Well, if the plaintiffs themselves say in
13 their brief that there is a nonexistence of supreme
14 court authority to support their position, then I
15 would submit that this is absolutely the case where a
16 temporary injunction should not issue.
17 With respect to irreparable harm, the
18 application mentions things that have already
19 happened. They mention irreparable harm to the
20 children who will be moved. The children have been
21 moved, and courts have approved those moves with
22 findings that it was in the best interests of the
23 children to move.
24 So if Your Honor would look at the second
25 affidavit we have, we have Mr. Armstrong. He was
APP 116 38
1 personally involved in the decisions regarding the
2 children. And he says, for example, in paragraph 3
3 he was personally involved as part of a team in a
4 case-by-case review of each of the children. It
5 consisted of himself, DHS representative, clinical
6 staff and representatives from three of Iowa's
7 psychiatric medical institutions for children or
8 PMICs, we call them.
9 And the goal of the teams was to determine
10 what was in the best interests of those children, and
11 recommendations were made. And on the next page
12 you'll see court approval was required before these
13 children, who had been adjudged to be children in
14 need of assistance, were moved or had been
15 adjudicated delinquent. And that's what happened.
16 So, you know, we would disagree that there
17 would be irreparable harm to these children for
18 moving, but the fact of the matter is they've already
19 been moved. And to the contrary, other judges
20 throughout this state have held that it was in the
21 best interests of those children to be moved.
22 So it would be seriously disruptive for
23 this Court, which does not have jurisdiction over
24 these juvenile matters, to suddenly order children
25 back,I suppose, and that gets to the point of the
APP 117 39
1 remedy.
2 What remedy do Plaintiffs want? Do they
3 want you to move children back to the Iowa Juvenile
4 Home? Would they ask you to order that we hire five
5 people, ten people, fifty people? How many children
6 should be moved back? It opens a lot of questions
7 and questions, respectfully, Your Honor, that we
8 believe are vested in the discretion of the juvenile
9 court.
10 Now, maybe I will close where this all
11 began. There's an informational release attached to
12 their petition where the director of the Department
13 of Human Services said that the decision to close the
14 juvenile home was the product of many difficult
15 decisions. Well, the Director of the Department of
16 Human Services made the best decision he thought of,
17 to think of after -- and it's in this affidavit --
18 all of the thought that went into this, and they made
19 a difficult decision.
20 What Plaintiffs would have you do with the
21 single stroke of a pen is have this Court be in
22 charge of that process and have this Court fashion a
23 remedy when Plaintiffs haven't told you what that
24 remedy should be, in particular, or how that would
25 work when judges throughout the state have found it
APP 118 40
1 was in the best interests of the children to be
2 elsewhere.
3 Thank you, Your Honor.
4 THE COURT: Thank you. You have the last
5 word.
6 MR. HEDBERG: In other words, they created
7 a situation themselves by violating the Constitution,
8 and now argue that we can't undo it. It's their mess
9 they created by violating the Constitution.
10 Understand it's a mess that affects
11 individuals that have no part to this lawsuit
12 readily; but, again,I think they could continue to
13 keep the facility open. And I guess I don't see why
14 they would have a problem with an injunction on the
15 spending if they claim they're not going to spend it
16 anyway. So I don't see that as interfering with
17 anything that that agency has going at this point.
18 And, with that,I will close.
19 MR. BOULTON:I would just point out, Your
20 Honor, the statement that we didn't produce any
21 evidence, the petition includes the evidence that is
22 also supportive of the injunction, which is the
23 statement from Mr. Palmer and the defendants claim
24 saying they have closed the facility or are closing
25 the facility. The legislative appropriation, all of
APP 119 41
1 the evidence is there of exactly what has happened.
2 Mr. Homan's affidavit supports that he
3 received notice of the closure. And if you look at
4 the timeline, one of the criticisms was that somehow
5 Mr. Homan and the legislators were asleep at the
6 wheel and didn't file this suit in a timely fashion.
7 We certainly looked both ways before filing
8 this. We researched the impoundment issue. We
9 didn't come in here recklessly, but still turned it
10 around,I think, in a pretty timely fashion.
11 Notice to Homan was made on December 5th.
12 Within 30 days we had a lawsuit on file with the
13 constitutional theory. Within another week,
14 essentially, we filed for the injunctive relief to go
15 with that. So this statement that somehow we were
16 asleep on our rights,I think, is a bit of a stretch.
17 So we feel the evidence is there to support
18 our position through the petition and through
19 Mr. Homan's affidavit, and we believe that evidence
20 speaks very loudly. It was an unconstitutional
21 action. They had notice this lawsuit was coming and
22 still closed the facility, and I think that speaks
23 volumes for them creating irreparable injury out of
24 haste rather than letting this process work and get
25 resolved and putting those children in these kind of
APP 120 42
1 unsettling temporary positions.
2 THE COURT: Anything further? Any other
3 motions? Very well. The matters are submitted.
4 MR. HEDBERG: Thank you, Your Honor.
5 MR. BOULTON: Thank you, Your Honor.
6 MR. VAVRICEK: Thank you, Your Honor.
7 (Record closed at 2:15 p.m. on January 31,
8 2014.)
9
10
11
12
13
14
15
16
17
18
19
20
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22
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24
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APP 121 43
1 CERTIFICATE TO TRANSCRIPT
2 The undersigned, Janis A. Lavorato, one of
3 the Official Court Reporters in and for the Fifth
4 Judicial District of Iowa, which embraces the County
5 of Polk, hereby certifies:
6 That she acted as such reporter in the
7 above-entitled cause in the District Court of Iowa,
8 for Polk County, before the Judge stated in the title
9 page attached to this transcript, and took down in
10 shorthand the proceedings had at said time and place.
11 That the foregoing pages of typed written
12 matter is a full, true and complete transcript of
13 said shorthand notes so taken by her in said cause,
14 and that said transcript contains all of the
15 proceedings had at the times therein shown.
16 Dated at Des Moines, Iowa, this 6th day of
17 February, 2014.
18
19 ______JANIS A. LAVORATO 20 Certified Shorthand Reporter
21
22
23
24
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IN THE IOWA DISTRICT COURT FOR POLK COUNTY
DANNY HOMAN, STEVEN J. SODDERS, JACK HATCH, PAT CASE NO. EQCE075765 MURPHY, and MARK SMITH
Plaintiffs, RULING AND ORDER ON v. PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION AND TERRY BRANSTAD, GOVERNOR, DEFENDANTS’ MOTION TO DISMISS STATE OF IOWA and CHARLES M. PALMER, IOWA DEPARTMENT OF HUMAN SERVICES DIRECTOR,
Defendants.
The matter of Plaintiffs’ Application for a Preliminary Injunction and the Defendants’
Motion to Dismiss came before the Court for a contested hearing on January 31, 2014.
Representing the Plaintiffs were Mr. Mark Hedburg and Mr. Nathaniel Boulton. Representing the Defendants were Iowa Assistant Attorney Generals Ms. Meghan Gavin and Mr. Timothy
Vavricek. The Court, having heard the arguments of counsel, reviewed the court file, the affidavits and exhibits, finds as follows:
BACKGROUND FACTS AND PROCEDURE
On January 2, 2014, the Plaintiffs filed their Petition for Declaratory Judgment, Injunctive
Relief and Writ of Mandamus. On January 10, 2014, the Plaintiffs filed an Application for
Preliminary Injunction with Notice and Request for hearing. On January 21, 2014, the
Defendants filed their Motion to Dismiss along with a supporting brief.
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APP 384 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
The Petition for Declaratory Judgment, Injunctive Relief and Writ of Mandamus identifies the Plaintiffs as follows: Mr. Danny Homan, a taxpayer, resident and citizen of the
State of Iowa; Mr. Steven J. Sodders, a State Senator, taxpayer, and resident and citizen of the
State of Iowa; Mr. Jack Hatch, a State Senator, taxpayer, resident and citizen of the State of
Iowa; Mr. Pat Murphy, a State Representative, a taxpayer, a resident and citizen of the State of
Iowa; and Mr. Mark Smith, a State Representative, a taxpayer, a resident and citizen of the State of Iowa. The Defendants were identified as The Honorable Terry E. Branstad, Governor of the
State of Iowa, and Mr. Charles M. Palmer, Director of the Iowa Department of Human Services.
In the general allegations the Petition notes that on June 20, 2013, the Governor of the
State of Iowa approved Senate File 446, which was an appropriations bill, passed by the Iowa legislature, portions of which appropriated money to the Department of Health and Human
Services. The relevant portions were attached as Exhibit A to the Plaintiffs’ Petition. Under
Section 17 of Senate File 446, as passed by the Iowa General Assembly and approved by the
Governor of the State of Iowa, in part, is the following:
SEC. 17 JUVENILE INSTITUTIONS. There is appropriated from the general fund of the state to the department of human services for the fiscal year beginning July 1, 2013, and ending June 30, 2014, the following amounts, or such much thereof as is necessary, to be used for the purposes designated:
1. For operation of the Iowa juvenile home at Toledo and for salaries, support, maintenance, and miscellaneous purposes, and for not more than the following full-time equivalent positions:
$8,859.355.00
FTEs 114.00
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APP 385 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
After the adoption of Senate File 446, the Governor of the State of Iowa later appointed a task force under Executive Order No. 82 (attached as Exhibit B to the Plaintiffs’ Petition) which established a task force of no more than five members appointed by the Governor, with the following responsibilities designated to it:
a. Make recommendations about how to improve services for residents;
b. Review incident data to ensure a high-level of care was delivered at the Iowa Juvenile Home;
c. Recommend a strategy for the permanent elimination of seclusion rooms outside the cottage setting;
d. Recommend a strategy outlining the transition of the Iowa Juvenile Home’s education plan from being managed from the Department of Human Services to Area Education Agency 267; and
e. Reach other goals and objectives as requested by the Office of the Governor.
(Executive Order No, 82, Plaintiffs’ Exhibit B attached to Plaintiffs’ Petition).
On October 9, 2013, the task force submitted a report to the Governor of the State of
Iowa. The report did not suggest the closing of the Iowa Juvenile Home at Toledo, Iowa, but rather, made recommendations focusing on improving the Iowa Juvenile Home with the primary consideration being the best interests of the youth served at that facility. On December 9, 2013,
Charles Palmer, as the Director of the Iowa Department of Human Services, gave notice that the
Toledo Iowa Juvenile Home was closing. The notice stated that alternative placement would be found for the 21 youths currently being served at the Iowa Juvenile Home in Toledo, Iowa.
The Plaintiffs allege that the action by the Director of the Iowa Department of Human
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APP 386 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
Services was done under the direction and/or the approval of Governor Terry Branstad, Governor of the State of Iowa. The Plaintiffs further claim in their Petition that as a result of the action taken on December 9, 2013, the Governor of the State of Iowa disallowed the spending of
$8,859,355 that had been “legally appropriated for the operation of the Toledo Home and therefore defeat[ed] the very purpose of the law.” Plaintiffs further allege that the funds would, therefore, be available for other purposes for which they were not intended thus constituting a misappropriation of legally appropriated funds.
Plaintiffs further argued that the action by the Governor of the State of Iowa has injured and damaged the Plaintiffs as taxpayers, citizens, and legislators of the State of Iowa in that the impoundment of the funds by the Governor were impermissibly exercised and were beyond the scope of his constitutional and statutory authority. The Plaintiffs then prayed for relief as follows: (1) A ruling and judgment adjudging that the Governor’s refusal to allow the spending of funds appropriated under Section 17 of Senate File 446 is an unconstitutional impoundment;
(2) that an injunction prohibiting the closure of the Toledo Home and prohibiting the misappropriation of funds dedicated to the Toledo Home be issued; (3) that a Writ of Mandamus ordering that the Toledo Home remain open be entered by the Court; and (4) that an award of such additional relief as the Court may deem necessary, proper or appropriate including an order declaring that the costs of this action be taxed against the Defendants and awarded to the
Plaintiffs (Petition for Declaratory Judgment, Injunctive Relief and Writ of Mandamus, January
2, 2014, page 5).
The Plaintiffs’ Application for Preliminary Injunction, filed on January 10, 2014,
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APP 387 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
requested the Court to issue an injunction pursuant to Iowa Rule of Civil Procedure 1.1502,
which would restrain the Defendants from closing the Toledo, Iowa Juvenile Home, scheduled
for January 16, 2014, and would disallow the spending of the money for other purposes that was
lawfully appropriated for the operation of said facility. The Plaintiffs alleged in their Application
for Preliminary Injunction that the “intentional impoundment of funds by the Defendants in this
matter will work irreparable injury to the Plaintiffs.” (Application for Preliminary Injunction
with Notice and Request for Hearing, January 10, 2014, page 1).
On January 21, 2014, the Defendants filed a Motion to Dismiss along with the supporting brief. The Defendants allege that the Plaintiffs lack standing to bring an action for declaratory
relief, injunctive relief, or a writ of mandamus. Further, the Defendants argue that Plaintiffs have
failed to state a claim upon which relief can be granted.
MOTION TO DISMISS
A. Standard of Review
“A motion to dismiss tests the legal sufficiency of the challenged pleading.” Southard v.
Visa U.S.A., Inc., 734 N.W.2d 1942, 194 (Iowa 2007). The Court may grant a motion to dismiss
only if the petition shows no possible right of recovery under the facts. Trobaugh v. Sondag, 668
N.W.2d 577, 580 (Iowa 2003). A motion to dismiss will rarely succeed. Rees v. City of
Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004). When considering a motion to dismiss, courts
assess the petition “in the light most favorable to the plaintiffs, and all doubts and ambiguities are
resolved in plaintiff’s favor.” Robbins v. Heritage Acres, 578 N.W.2d 262, 264 (Iowa Ct. App.
1998) (citation omitted). A petition must contain factual allegations sufficient to provide the
5
APP 388 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
defendant with “fair notice” of the claim asserted. Id. A petition satisfies the “fair notice”
standard “if it informs the defendant of the incident giving rise to the claim and of the claim’s
general nature.” Id. “The only issue when considering a motion to dismiss is the ‘petitioner’s
right of access to the district court, not the merits of his allegations.’” Hawkeye Foodservice
Distribution, Inc. v. Iowa Educators Corp., 812 N.W.2d 600, 609 (Iowa 2012) (quoting Rieff v.
Evans, 630 N.W.2d 278, 284 (Iowa 2001)); Cutler v. Klass, Whicher & Mishne, 473 N.W.2d
178, 181 (Iowa 1991) (“Both the filing and the sustaining [of motions to dismiss] are poor
ideas.”).
B. Standing
“‘Standing to sue’ has been defined to mean that a party must have ‘sufficient stake in an
otherwise justiciable controversy to obtain judicial resolution of that controversy.’” Birkhofer ex
rel. Johannsen v. Brammeier, 610 N.W.2d 844, 847 (Iowa 2000) (quoting Black's Law
Dictionary 1405 (6th ed.1990)). In Iowa, “a complaining party must (1) have a specific personal
or legal interest in the litigation and (2) be injuriously affected.” Citizens for Responsible Choices
v. City of Shenandoah, 686 N.W.2d 470, 475 (Iowa 2004).
An association has standing when it seeks an injunction or declaration to benefit its
injured members. Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 2213 (1975). Plaintiff
Danny Homan is the President of the American Federation of State, County, and Municipal
Employees (“AFSCME”) Iowa Council 61 (Affidavit of Danny Homan). He represents the
interests of the employees who work at the Iowa Juvenile Home in Toledo. On January 15, 2014,
93 members of AFSCME Iowa Council 61 who worked at the Iowa Juvenile Home in Toledo
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APP 389 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
were laid off following the closure of the facility. Therefore, the members have suffered an injury as a result of the Defendants’ actions, and Danny Homan has standing as the President of
AFSCME Iowa Council 61 to represent their interests.
Legislators have a “plain, direct and adequate interest in maintaining the effectiveness of their votes.” Coleman v. Miller, 307 U.S. 433, 438, 59 S.Ct. 972, 975 (1939). The Iowa Juvenile
Home in Toledo is specifically addressed in Section 233A.1, the Code of Iowa, and appropriations were directly made for its continued operation in Senate File 446, Section 17. The
Plaintiff legislators have alleged that the Defendants’ decision to close the facility frustrated legislative intent and constituted an impoundment of appropriated funds in violation of Article
IV Section 9 of the Iowa Constitution (“He shall take care that the laws are faithfully executed.”).
Therefore, the Plaintiff legislators have been injured by the Defendants’ actions, and have standing in this case to protect the effectiveness of their votes.
C. Failure to State a Claim
“A motion to dismiss is only sustainable where it appears to a certainty that a plaintiff would not be entitled to any relief under any state of facts which could be proved in support of the claims asserted by him.” Newton v. City of Grundy Ctr., 70 N.W.2d 162, 164 (Iowa 1955).
Plaintiffs allege that Defendants’ decision to close the Iowa Juvenile Home in Toledo was an impoundment of lawfully appropriated funds in violation of Article IV Section 9 of the Iowa
Constitution. While Iowa has not addressed the concept of impoundment of appropriated funds, other states have recognized such a constitutional claim. See New Hampshire Health Care Ass’n v. Governor, 161 N.H. 378, 390, 13 A.3d 145, 156 (2011); Oneida County v. Berle, 49 N.Y.2d
7
APP 390 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
515, 404 N.E.2d 133 (Ct. App. N.Y. 1980); Int'l Union, United Auto., Aerospace & Agr.
Implement Workers of Am., UAW, & Local 6000 v. State, 194 Mich. App. 489, 491 N.W.2d 855
(Mich. Ct. App. 1992). The mere fact that there is an absence of judicial precedent for a
constitutional claim does not mean the Plaintiffs have failed to state a claim under the Iowa Rules
of Civil Procedure 1.421(1). The plaintiffs have cited a provision of the Iowa Constitution that
they allege the Defendants have violated, and there is a possibility of a right of recovery under
such a claim under the facts presented. Therefore, the Plaintiffs have stated a claim upon which
relief can be granted.
D. Judicial Review
Defendants also argue that the Plaintiffs’ Petition should be dismissed because the claim
is more appropriate as a Judicial Review of an action of the Iowa Department of Human Services
under Iowa Code section 17A. Usually, the judicial review provisions are the exclusive means to
challenge an administrative agency action and the Plaintiff must exhaust all administrative
remedies before being entitled to judicial review. Tindal v. Norman, 427 N.W.2d 871, 872 (Iowa
1988). However, this exhaustion doctrine does not apply if an adequate administrative remedy
does not exist. Id. As agencies cannot decide issues of constitutionality, administrative remedies
are inadequate when a party claims the agency violated the Iowa Constitution. Salsbury
Laboratories v. Iowa Dep’t of Envtl. Quality, 276 N.W.2d 830, 836 (Iowa 1979). Since the
Plaintiffs in this case allege the Defendants’ actions violated the Iowa Constitution, the
exhaustion doctrine does not bar their action before the Court.
8
APP 391 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
PRELIMINARY INJUNTION
A. Applicable Law
Injunctions may be obtained by a party as an independent remedy by an action in equity
or as an auxiliary remedy in any action. I.R.C.P. 1.1501. Temporary injunctions may be allowed
under three circumstances as follows:
When the petition, supported by affidavit, shows the plaintiff is entitled to relief which includes restraining the commission or continuance of some act which would greatly or irreparably injure the plaintiff.
Where, during litigation, it appears that a party is doing, procuring, or suffering to be done, or threatens or is about to do, an act violating the other party’s right respecting the subject of the action and intending to make the judgment ineffectual.
In any case especially authorized by statute.
I.R.C.P. 1.1502.
In regard to temporary injunctions, the burden of proof requires a showing by the party
seeking the injunction of the likelihood of success on the merits. PIC USA v. North Carolina
Farm Partnership, 672 N.W.2d 718, 723 (Iowa 2003). A permanent injunction requires actual
success. Id.
If an injunction is entered then, pursuant to I.R.C.P. 1.1508, the order directing a
temporary injunction must require that before the writ issues, a bond is to be filed, with a penalty
to be specified in the order, which shall be 125 percent of the probable liability to be incurred.
The issuance of temporary injunctions “invokes the equitable powers of the court and
courts apply equitable principles.” Max 100 L.C. v. Iowa Realty Co., Inc., 621 N.W.2d 178, 181
9
APP 392 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
(Iowa 2001). “The standards considered in granting temporary injunctions are similar to those
for permanent injunctions, except temporary injunctions require a showing of the likelihood of
success on the merits instead of actual success.” Id., quoting 42 Am. Jur. 2d Injunctions Section
8, at 566 (2000). In applying the principles stated to temporary injunctions, courts are to consider
the “circumstances confronting the parties and balance the harm that a temporary injunction may
prevent against the harm that may result from its issuance.” Max 100 L.C. v. Iowa Realty, Inc.,
621 N.W.2d 178, 181 (Iowa 2001) quoting Kleman v. Charles City Police Dept., 373 N.W.2d 90,
96 (Iowa 1985).
An injunction is an extraordinary remedy which should be granted with caution and only when clearly required to avoid irreparable damage. An injunction should issue only when the party seeking it has no adequate remedy at law.
Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 639 (Iowa 1991). In deciding
whether to grant injunctions courts should be careful to weigh the relative hardship which would be suffered by the enjoined party upon awarding any injunctive relief. Matlock v. Weets, 531
N.W.2d 118, 122 (Iowa 1995).
B. Merits
At the outset, it is important to consider that the Plaintiffs and the Defendants represent
two of the three separate departments of government as recognized by our Iowa Constitution.
Article III, Section 1 of the Constitution of the State of Iowa states:
The powers of the Government of Iowa shall be divided into three separate departments – the Legislative, the Executive, and the Judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed 10
APP 393 E-FILED 2014 FEB 05 12:58 PM POLK - CLERK OF DISTRICT COURT
or permitted.
Further, Article IV, Section 9 of the Constitution of the State of Iowa, states:
He shall take care that the laws are faithfully executed.
The “He” referred to in Article IV, Section 9, is the Governor of the State of Iowa.
The actions of an executive branch department head, such as Charles Palmer, the Director
of the Iowa Department of Human Services, can only be done in accordance with the legislative
authority granted to said department and also under the control and subject to the requirements of
the duties and responsibilities of the executive branch as set forth in Article IV of the
Constitution of the State of Iowa. In other words, a department head such as the Director of the
Iowa Department of Human Services cannot have greater power than that of the Governor and
such power is limited by our Constitution in the same manner as the Governor. To find
otherwise would have the absurd result of granting to nonconstitutionally-designated directors of
state agencies greater power than the executive, the Governor of the State of Iowa, or for that
matter, any other of the two remaining branches of government. The actions, therefore, of the
Director of the Department of Human Services are thus the actions of the executive branch and,
therefore, the actions of the Governor of the State of Iowa.
In addition, the Plaintiffs have brought this action seeking also a writ of mandamus.
Under Section 661.1, the Code of Iowa, the action of mandamus “is one brought to obtain an
order commanding an inferior tribunal, board, corporation, or person to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office, trust, or
station.” The restrictions on a writ of mandamus include the exercise of discretion by an inferior
11
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tribunal or person. Therefore, Section 661.2, the Code of Iowa, states that “where discretion is
left to the inferior tribunal or person, then mandamus can only compel it to act, but cannot
control such discretion.” The district court has the authority to issue the writ of mandamus order.
Section 661.4, the Code of Iowa. Section 661.8, the Code of Iowa, provides that the order of
mandamus “is granted on the petition of any private party aggrieved … when the public interest
is concerned, and is in the name of such private party or of the state, as the case may be in fact brought.” The Petition itself has the following requirements:
The plaintiff in such action shall state the plaintiff’s claim, and shall also state facts sufficient to constitute a cause for such claim, and shall also set forth that the plaintiff, if a private individual, is personally interested therein, and that the plaintiff sustains and may sustain damage by the nonperformance of such duty, and that performance thereof has been demanded by the plaintiff, and refused or neglected, and shall pray an order of mandamus commanding the defendant to fulfill such duty.
Section 661.9, the Code of Iowa.
The Plaintiffs argue that the actions of the Defendants in this case are constitutionally
forbidden in that a lawful act as adopted by the General Assembly of the State of Iowa and
approved by the Governor, as evidenced by the bill in question here in fact becoming law and no
veto being issued, that the executive branch, including the Governor as the head of that branch,
must faithfully execute the law as legally adopted. By ordering the closing of the Toledo Home
the law’s intent under Senate File 446 has been totally frustrated and, in effect, rendered null.
The appropriation of $8,859,355.00 for the Iowa Juvenile Home at Toledo, Iowa, was to be used
for salaries, support, maintenance, and miscellaneous purposes as set forth in the legislation.
However, as pointed out, the amounts so appropriated from the General Fund are to be for
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the purposes stated “or so much thereof as is necessary.” The Defendants argue that the clause
“or so much thereof as is necessary” means that the Defendants can, in their discretion, decide to
spend none of the amounts appropriated under the legislation for the Iowa Juvenile Home at
Toledo, Iowa. By a plain reading of the legislation such a definition is absurd and disingenuous.
Clearly, not only does Senate File 446 appropriate money for the operation of the Iowa
Juvenile Home at Toledo, Iowa, but several other statutes contained in the Code of Iowa
anticipate that the Home is operational and in existence. By closing the Toledo home, the other
sections of the Code would be rendered ineffectual. A brief sampling of some of the statutes
which anticipate the use of and purpose of the Iowa Juvenile Home at Toledo, Iowa, are as
follows: Section 233B.1; Section 232.102; Section 233A.1 (the section which establishes the
Toledo facility); Section 232.52; Section 231.424; Section 232.54; and Section 232.117, the
Code of Iowa.
The Court finds that the facts and circumstances of this case support the burden of proof
required by the Plaintiffs seeking the preliminary injunction. First, Plaintiffs are entitled to relief because the actions of the Defendants constitute an act or omission that would greatly and
irreparably injure the Plaintiffs. In addition, it appears the Defendants are threatening to do or
have, in fact, already committed an act which violates the Plaintiffs’ rights: the ignoring or
contravention of a duly enacted law of the Iowa Legislature. There is also a likelihood of success
on the merits.
However the issue before the Court is framed, whether as one of impoundment or simply
an exercise of executive authority not allowed by our statutes or by our constitution, the Court
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finds that the actions of the Defendants, and, in particular, the Governor of the State of Iowa,
allowing an appointee to unilaterally frustrate and, in effect, change the laws as duly enacted by
the Iowa Legislature cannot be allowed. The Toledo Home has been established by the Iowa
Legislature with the approval of the Executive branch. Appropriations to effectuate the purpose
of the Toledo Home were properly passed by the Iowa Legislature and became law. It thus became incumbent upon the Defendants to ensure that the law is carried out. To argue that the
language “or so much thereof as is necessary” in Senate File 446 means that the Governor and/or
his Director of the Iowa Department of Human Services can spend none of the money as
appropriated is clearly in error. The legislature intended that the Toledo facility be established
and operate and that the money so appropriated be used for salaries, support, maintenance and
miscellaneous purposes. If the Department of Human Services and the Toledo facility could
operate with some amount less than the $8,859,355.00 appropriated, so be it. But to totally
eliminate the operations of the Toledo Home under the guise of the language “or so much thereof
as is necessary” is to essentially ignore the laws of the State of Iowa as enacted lawfully by the
General Assembly and allows the Executive branch to unilaterally decide which laws it will obey
and which laws it will not.
This is not the basis upon which our government in Iowa was established by our Iowa
Constitution that established the three separate branches of government along with their duties
and responsibilities. The actions here by the Defendants effectively contravene the legislature’s purpose and policy of establishing the Toledo Home and the appropriations legally and duly passed into law for its operation. To argue that those appropriations not already used for the
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Toledo Home would eventually finds its way back into the General Fund for the State of Iowa
thus saving taxpayers’ money is no argument at all. The legislators, as elected by the electorate
of the State of Iowa, are bound under the Constitution to perform their duties as expressly set
forth. If the Legislature, without veto from the Governor of the State of Iowa, passes a law or
laws, which, in this case, established a facility for a specific purpose and then passes another law,
again without veto, for the purpose of ensuring that the facility runs and operates as intended,
then the Legislature is not only acting according to the Constitution of the State of Iowa, but is
also acting in accordance with their obligation as the elected representatives from the citizenry.
The argument of Defendants that taxpayer money not expended as appropriated and legislated is
always a benefit to the taxpayer is misleading and wrong. To take such a view to any or all
legislation as passed by the legislature would lead to ridiculous and illogical results. For
instance, if in the name of saving taxpayers money no expenditures are made to repair bridges
within the State of Iowa and the bridges are allowed to fall into disrepair to the point where persons and property are injured from the disrepair, although there may be savings from taxpayer
expenditures from the General Fund, the harm to the citizenry by personal injury, property
damage, interference with commercial trade and travel, would most likely far exceed any such
savings.
If the Governor of the State of Iowa decided that the Toledo Home should not operate, he
had the opportunity to end its operation when the appropriations bill was placed upon his desk
for signature. At that point the Governor could have vetoed the bill. To later, however, decide
that the Toledo Home should no longer operate under any circumstances is to not only a failure
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to carry out his Constitutional duties to take care that the laws are faithfully executed, but is an
affront to the very purpose and establishment of our governmental institutions as adopted by the
Constitution of the State of Iowa with the approval of the people of the State of Iowa. The
danger in allowing such an action to happen is the destruction of our republican form of
government itself and the democracy which it is designed to serve for the general welfare of all
of its citizens.
No citation is needed in recognizing that we are a nation of laws and not a nation of men
and women. Our laws serve to protect the will of the majority and the rights of the minority. No
one person under our form of government, unless duly authorized by that form of government
through our Constitution can exercise a power not delegated to it or in contravention of the
government itself and the laws duly enacted. As aptly pointed out in a case from the State of
New Hampshire:
While the Governor may not circumvent the appropriations process ‘by withholding funds or otherwise failing to execute the law on the basis of his views regarding the social utility or wisdom of the law,’ this must be distinguished ‘from the exercise of executive judgment that the full legislative objectives can be accomplished by a lesser expenditure of funds then appropriated.’ New Hampshire Health Care Association v. Governor, 161 N.H. 378, 390; 13 A.3d145, 156 (2011).
Here, the Governor did not lessen the expenditure of funds as is necessary to run the
Toledo Home, but, rather, found that no Toledo Home should be established or operated any
longer. This was not the intent of the legislature and the laws enacted establishing the Toledo
Home and the appropriations to make sure that it operates appropriately. Again, as appropriately
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noted in a New York case, In The Matter of County of Oneida v. Berle, 404 N.E.2d 133, 137; 427
N.Y.Supp.2d 407, 412:
However laudable its goals, the executive branch may not override enactments which have emerged from the lawmaking process. It is required to implement policy declarations of the Legislature, unless vetoed or judicially invalidated.
In the New York case, as in this case, the “usurpation of the legislative function cannot
receive judicial sanction.” Id.
Other jurisdictions, including Michigan, Massachusetts, New Hampshire, and New York,
have also found that this use of executive power to defeat lawfully enacted statutes cannot
survive judicial scrutiny and are contrary to our form of government. (See International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Local
6000 v. State of Michigan, 194 Mich. App. 489; 491 N.W.2d 855 (1992); Felicetti v. Secretary
of Communities & Development, et al., 386 Mass. 868; 438 N.E.2d 343 (1982); Detroit
Firefighters Assoc. v. City of Detroit, 449 Mich. 629; 537 N.W.2d 436 (1995); In The Matter of
County of Oneida v. Berle, 49 N.Y.2d 515; 404 N.E.2d 133; 427 N.Y. S.2d 407 (1980); New
Hampshire Health Care Assoc. v. Governor, 168 N.H. 378; 13 A.3d 145 (2011)).
RULING AND ORDER
For the above reasons the Court finds that the Defendants’ Motion to Dismiss is hereby
denied and the Plaintiffs’ Application for Preliminary Injunction is hereby sustained.
It is therefore the Order of the Court that the Defendants shall reopen the Toledo Home
and abide by the duly passed laws of the State of Iowa which established the Toledo Home and
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shall allow the use of funds duly appropriated and passed by the legislature of the State of Iowa
and the Governor of the State of Iowa to be used for the operation of the Toledo Home in
compliance with Senate File 446, Section 17, Laws of 85th General Assembly, 2013 Session.
It is further Ordered that pursuant to I.R.C.P. 1.1508, that a bond shall be posted with the
Polk County Clerk of Court, Polk County, Iowa, by the Plaintiffs. In order to properly determine
the amount of bond appropriate under these circumstances, that the parties shall file with the
court any and all affidavits the parties deem necessary so that the Court may set a bond at 125 percent of the probable liability to be incurred in accordance with I.R.C.P. 1.1508. Said
affidavits shall be filed no later than 25 days from the date of the filing of this Order.
Costs are assessed to the Defendants.
Dated this ____ day of February, 2014.
______SCOTT D. ROSENBERG Judge, 5th Judicial District of Iowa
Copies to:
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State of Iowa Courts
Type: OTHER ORDER
Case Number Case Title EQCE075765 DANNY HOMAN ET AL VS TERRY BRANSTAD ET AL
So Ordered
Electronically signed on 2014-02-05 12:58:08 page 19 of 19
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APP 420