gov. branstad brief on closing of mhis

IN THE IOWA DISTRICT COURT FOR POLK COUNTY

DANNY HOMAN, RICH TAYLOR, JERRY KEARNS, MARK SMITH, THOMAS COURTNEY, JANET PETERSEN, BRUCE HUNTER, CURT HANSON, TONY BISIGNANO, HERMAN QUIRMBACH, DICK DEARDEN, ART STAED, AKO ABDUL-SAMAD, JO OLDSON, RUTH ANN GAINES, SHARON STECKMAN, TODD TAYLOR, MARY GASKILL, KIRSTEN RUNNINGS-MARQUARDT, TIMI BROWN-POWERS, DAVE JACOBY, PAM JOCHUM, MATT MCCOY, MICHAEL GRONSTAL, and BRUCE BEARINGER,

Plaintiffs, v. TERRY E. BRANSTAD, GOVERNOR OF THE STATE OF IOWA and CHARLES M. PALMER, DIRECTOR OF THE IOWA DEPARTMENT OF HUMAN SERVICES,

Defendants.

No. CVCV050143

GOVERNOR BRANSTADS AND DIRECTOR PALMERS BRIEF IN SUPPORT OF THEIR MOTION TO

DISMISS OR IN THE ALTERNATIVE MOTION TO RECAST

AMENDED PETITION

COMES NOW Governor Branstad and Director Palmer and in support of their

Motion to Dismiss or in the Alternative Motion to Recast respectfully submit the

following brief:

TABLE OF CONTENTS

Statement of the Case...........................................................................................................2

Argument .............................................................................................................................3

I. Plaintiffs Failed to State a Recognizable Claim ..................................................3

1

E-FILED 2015 AUG 03 5:31 PM POLK - CLERK OF DISTRICT COURT

A. Mandamus Cannot Lie Here as Iowa Code section 218.1 Does Not Establish a Clear and Certain Right that This Court can Enforce ..........5

B. Injunctive Relief is Inappropriate as There is No Future Action to Enjoin .....................................................................................................9

II. Plaintiffs Lack Standing to Bring a Writ of Mandamus or Petition for Injunctive Relief...............................................................................................10

A. Plaintiffs Do Not Have Standing as Residents or Citizens of the State

of Iowa .................................................................................................12

B. Plaintiffs Do Not Have Standing as Taxpayers ....................................13

C. The Plaintiffs Do Not Have Standing as Legislators ...........................14

D. Plaintiff Homan Cannot Assert Third-Party Standing .........................16

III. This Case Presents a Nonjusticiable Political Question .................................17

Conclusion .........................................................................................................................19

STATEMENT OF THE CASE

Danny Homan and numerous members of the Iowa General Assembly have filed

a Petition for Injunctive Relief and Writ of Mandamus challenging the closure of the

Clarinda Mental Health Institute and Mount Pleasant Mental Health Institute. Governor

Branstad and Director Palmer move to dismiss the suit as: (1) Plaintiffs have failed to

state a claim upon which relief can be granted; (2) Plaintiffs do not have standing to

pursue this action, and (3) this case is barred by the political question doctrine. In the

alternative, Defendants ask that Plaintiffs be ordered to recast their Petition.

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

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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 Fail to State a Recognizable Claim.

The primary difficulty in responding to the Amended Petition is determining what

cause or causes of action are at issue. Clearly the Plaintiffs are unhappy with events

related to funding and operation the Clarinda and Mount Pleasant mental health institutes.

The legal theories supporting their action, however, remain opaque. For instance, in their

July 9th letter to Chief Judge Arthur Gamble, Plaintiffs characterized this litigation as a

line item veto case and, as a result, requested expedited resolution. See July 9, 2015

Letter ([W]e are notifying you as Chief Judge of the filing today of an action

challenging the constitutionality of the Governors attempted exercise of line item vetoes.

. . .). That request was granted in conformance with an Administrative Order of the

Fifth Judicial District dated August 15, 1988.

Despite this initial claim, the Amended Petition is silent on the Governors use of

the vetoother than to note its occurrence.1 Nowhere is it alleged that Governor

Branstad used his constitutional veto power in an unlawful manner. Nowhere is the

Governors veto authority, Article III, section 16 of the Iowa Constitution even

referenced. Instead Plaintiffs claim Governor Branstad violated the Take Care Clause of

the Iowa Constitution, Article IV, section 9. Thus, rather than alleging error in the

Governors exercise of the veto, the Plaintiffs complain generally of the Governors

1 If this is a line-item-veto case it is also unclear why Director Palmer is named as a Defendant.

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unilateral decision to close or Governors order to close Clarinda and Mount

Pleasant. Amended Petition 31, 47.

Even assuming Defendants knew what decision or order was at issue, when it

occurred, etc., that decision is independent of the line item veto. If Plaintiffs intend to

challenge the constitutionality of the Governors use of his veto authority, they should be

ordered to recast their petition. Iowa may be a generous notice pleading state, but at least

some facts must be alleged related to the Governors item veto to present a viable cause

of action and put the Defendants on reasonable notice.

Perhaps Plaintiffs deliberately chose not to bring a challenge to the Governors

item vetoes. After all, the legislature cannot by statute constrain the Governors

constitutional veto authority. See Welden v. Ray, 229 N.W.2d 706, (Iowa 1975) (holding

the legislature may not under the guise of a qualification upon an appropriation attempt

to shield an appropriation from the Governors veto power). Finally, the remedy

Plaintiffs are seekingreopening of Clarinda and Mount Pleasantis not available in a

line-item-veto action. As the Iowa Supreme Court has recently made clear, the remedy

for the improper use of an executive veto is not nullification of the veto but nullification

of the entire appropriation. Homan v. Branstad, 812 N.W.2d 623, 63435 (Iowa 2012).

If this is not a challenge to the Governors veto authority, the question becomes

what is this? Plaintiffs have characterized this action as a Writ of Mandamus and a

Petition for Injunctive Relief. Neither of those causes of action, however, is viable. Each

will be addressed in turn.

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A. Mandamus Cannot Lie Here as Iowa Code section 218.1 Does Not

Establish a Clear and Certain Right that This Court can Enforce.

Mandamus is a special action established by Iowa Code chapter 661. An 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. Iowa Code 661.1. The

Iowa Supreme Court has long held that mandamus 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). See also Stith v. Civil Sers. Commn, 159

N.W.2d 806, 808 (Iowa 1968) (noting that mandamus is a drastic remedy to be applied

only in exceptional circumstances.).

Here Plaintiffs seek mandamus to compel the Governor and Director Palmer to

reopen Clarinda and Mount Pleasant and appropriate all funds vetoed for their

operation by the Governor. Plaintiffs argue that such action is required by Iowa Code

section 218.1, which states [t]he director of human services shall have the general and

full authority given under statute to control manage, direct, and operate the following

institutions: . . . 3. Mental health Institute, Clarinda, Iowa. . . . 6. Mental Health Institute,

Mount Pleasant, Iowa.

Mandamus cannot lie under section 218.1 because that code section does not

establish any clear and certain legal right or duty that would give rise to any claim by

these plaintiffs. Section 218.1 grants the general and full authority to the director to

control, manage, direct, and operate the facilities under the control of the Department of

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Human Services, including Clarinda and Mt. Pleasant.2 The Plaintiffs ask the Court to

read into this code section the requirement that the MHIs must be funded at a certain

level and must continue to admit patients.3 The statute cannot be read to constrain the

directors authority to such an extent.

The purpose of the MHIs has changed considerably since the time they were first

established. Until the early 1980s the MHIs existed primarily to provide in-patient

psychiatric services. See Iowa Code 217.2(1) (1973 Code of Iowa) (the director to

establish psychiatric services ... in order that patients in such institutions shall receive

the psychiatric services that are necessary). In 1981 the legislature recognized the

importance of community-based care over that of institutionalized care. See 81 Acts, ch

78, 1, 20; Iowa Code 225C.1 (1983 Code of Iowa). DHS was directed to emphasize

the provision of outpatient services by community mental health centers and local mental

retardation providers as a preferable alternative to inpatient hospital services. Iowa

Code 225C.4(1)(c) (1983 Code of Iowa). In 1998 the legislature declared that while

the department of human services institutions were originally established as single-

2 With respect to this broad grant of authority it has been recognized that [i]n the absence of any constitutional restriction, it is within the province of the Legislature to clothe an officer or agency created by it with functions involving the exercise of powers executive, legislative, and judicial in characterone or all. State v. Barker, 116 Iowa 96, 109, 89 N. W. 204 (1902); State v. Manning, 220 Iowa 525, 259 N.W. 213 (1935). 3 Plaintiffs cite to a 1973 Attorney General opinion to support its request for mandamus. In 1973, however, the Code dictated specific services that state mental health institutes were required to provide and proscribed the order of preference of admitting patients to such institutes. See Iowa Code 217.12(1); chapter 226 (1973). As set forth herein, the code requirements have changed significantly since 1973. The context from which the 1973 opinion arose was also quite distinguishable from the present dispute.

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purpose care facilities, they are evolving into diversified, multiuse regional resource

centers with a mixture of public and private providers. 1998 Iowa Acts, ch. 1155, 1.

There is no longer a statutory requirement that the MHIs provide in-patient

psychiatric services. Instead, the purpose of the MHIs is to operate as regional resource

centers to provide one or more of the following:

(1) Treatment, training, care, habilitation, and support of persons with mental illness or a substance abuse problem.

(2) Facilities, services, and other support to the

communities located in the region being served by a mental health institute so as to maximize the usefulness of the mental health institutes while minimizing overall costs.

(3) a unit for the civil commitment of sexually violent predators committed to the custody of the director of human services pursuant to chapter 229A.

Iowa Code 226.1(2)(a).

The Plaintiffs argument that Clarinda and Mt. Pleasant are required to operate as

in-patient psychiatric facilities, funded at a certain level, is not supported either by

legislative history or the current statutory language establishing the purpose of the MHIs

and giving the director full authority.4 The Court cannot command the Defendants to do

something for which there is no statutory mandate and which is contrary to the legislative

directive to encourage mental health services in community settings rather than state

institutions.

4 The Plaintiffs attempt to compel operation of Clarinda and Mt. Pleasant as they previously existed is also inconsistent with Iowa Code 218.94. As a part of the Directors authority with respect to the MHIs, the Director has full power to buy and sell real estate. If the Director has been granted the power to sell the real property of the MHIs, it necessarily follows that there is no clear legal obligation that the MHIs continue to function as in-patient psychiatric facilities.

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Mandamus is also improper when there is a plain, speedy, and adequate remedy

in the ordinary course of the law. . . . Id. (quoting Iowa Code 661.7). A writ of

certiorari is the type of remedy that precludes the use of a mandamus action. Id. As is

a declaratory action. Plaintiffs should have brought a certiorari proceeding or an action

for declaratory judgment to first establish that the continuous operation of Clarinda and

Mount Pleasant is required before seeking to compel that action through a mandamus

action. These Plaintiffs, with the exception of Mr. Homan, have another remedy

available to themthe ability to attempt to override Governor Branstads veto.

Plaintiffs, however, are not simply seeking a writ of mandamus to compel the

reopening of Clarinda and Mount Pleasant: Plaintiffs are seeking a writ of mandamus

to compel the reopening of Clarinda and Mount Pleasant with the appropriations

vetoed by the Governor. If section 218.1 is not clear and certain as to whether the

continuous operation of these facilities is required, the statute is absolutely silent as to the

required level of funding. The Director cannot be compelled to operate facilities when

there is no money appropriated to the facilities.5

Alternatively, Plaintiffs seek an order commanding the Governor to convene an

extraordinary session of the Iowa General Assembly for the purposes of appropriating

necessary funds to keep Clarinda and Mount Pleasant open. Amended Petition 54.

Convening a special session likewise is likewise far beyond the four corners of Iowa

Code 218.1. Plaintiffs cite no authority that would allow a court to direct that a special

session be convened, particularly since the Plaintiffs themselves have the legal authority

5 The director previously had authority to transfer funds between mental health institutions. See Iowa Code 218.6 (2013). That authority, however, was removed by the legislature. SF 505, 23.

8


to accomplish the same result. There is simply no basis in law that would allow the

judicial branch to interfere with a right given solely to the executive and legislative

branches.

B. Injunctive Relief is Inappropriate as There is No Future Action to Enjoin.

Plaintiffs further seek temporary and permanent injunctive relief enjoining

Defendants from closing Clarinda and Mount Pleasant or taking any actions in

furtherance thereof, including misappropriating or impounding any funds apportioned to

Clarinda and Mount Pleasant, which were item vetoed by the Governor. . . . Amended

Petition 49. 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 Dept, 373 N.W.2d 90, 95 (Iowa 1985) (We have

repeatedly emphasized that the issuance or refusal of a temporary injunction is a delicate

materan exercise of judicial power which requires great caution, deliberation, and

sound discretion.). 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. Matlock, 531 N.W.2d at 123.

The purpose of granting a temporary injunction is to preserve the status quo,

while the purpose of a permanent injunction is to prevent future behavior. Lewis

Investments, Inc. v. City of Iowa City, 703 N.W.2d 180, 184 (Iowa 2005). Injunctive

relief cannot lie here for the simple fact that there is no future action to enjoin. For

example, Plaintiffs seek to enjoin the Governor and Director Palmer from

misappropriating or impounding funds appropriated to Clarinda and Mount Pleasant.

As the Plaintiffs are aware, the Governor vetoed those appropriations, and that veto has

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not been challenged here. As a result of that veto, the appropriations never became

lawno appropriation thus occurred. See Iowa Const. Art. III, 16 (Every bill which

shall have passed the General Assembly, shall, before it becomes a law, be presented to

the governor.). With no appropriation for fiscal year 2016, there are no funds which can

be misappropriated or impounded. See Belfanti v. Casey, 596 A.2d 298 (Penn. 1991)

(finding there was no impoundment where there was no appropriation). All funds not

specifically appropriated by the General Assembly reverted back to the General Fund.

Plaintiffs further seek to enjoin the Defendants from closing Clarinda and Mount

Pleasant or taking any actions in furtherance thereof. Amended Petition 49. This is a

peculiar request as Plaintiffs contend that Defendants have already unlawfully closed

these facilities, and seek to compel Defendants to reopen the facilities. See Amended

Petition 40 (On or about June 30, 2015, Defendant Governor closed the facilities at

Clarinda and Mount Pleasant, and laid off all workers.). The actions Plaintiffs complain

of have already occurred. There is simply no future action by Governor Branstad or

Director Palmer for the Plaintiffs to enjoin.

II. Plaintiffs Lack Standing to Bring a Writ of Mandamus or Petition for

Injunctive Relief.

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

10


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 requirementthat plaintiffs have

a personal or legal interest in the litigationrecognizes that in order to have standing one

must have a specific interest in the action, apart from the general interest of the public at

large. Id. at 419. The second requirementthat plaintiffs be injured in factrequires

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)).

Iowas 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 Iowas

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

11


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. The remainder of the Plaintiffs

assert standing as taxpayers, residents, citizens, and members of the Iowa General

Assembly. Petition 225. None of these grounds, however, provides any of the

Plaintiffs with proper standing to being this action for injunctive relief or writ of

mandamus. As a result, the above-captioned Amended Petition must 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 clearby 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. . . .

12


Fairchild v. Hughes, 258 U.S. 126, 12930, 43 S. Ct. 274, 275 (1922) (emphasis added);

see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 57374, 112 S. Ct. 2130 (1992)

(We have consistently held that a plaintiff raising only a generally available grievance

about governmentclaiming only harm to his and every citizens interest in proper

application of the Constitution and laws, and seeking relief that no more directly and

tangibly benefits him than it does the public at largedoes 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 exceptiona

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))emphasis added). This recognition is due to the common sense

13


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

of the alleged actions by the Defendants. In fact, Plaintiffs are arguing that millions of

dollars are not being spent. 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. Once again,

Plaintiffs are arguing that monies should be spent.

C. The Plaintiffs Do Not Have Standing as Legislators.

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

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,

14


absolute legislative standing would thwart the concern for separation of powers and a

limited judiciarythe two interests underlying the standing doctrine.

In examining the contours of legislative standing, courts have distinguished

between actions which concern how a law gets made with actions to enforce the law.

Legislators have standing to bring actions concerning how laws are madefor example,

whether the legislature followed the proper procedure or whether the governor

appropriately used his veto authority. Once a law is made, however, legislators have no

unique interest in ensuring that the law is faithfully executed. All citizens, legislators and

lay people alike, have the same interest in that regard. Because challenges to the faithful

execution of the law is common, Plaintiffs have not suffered the particularized injury

upon which to confer standing. As the Third Circuit Court of Appeals has held, [A]n

officials 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). 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. 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).

Plaintiffs are not challenging the manner in which House File 666 and Senate File

505 passed the General Assembly. Plaintiffs are not challenging the Governors item

15


veto of the Clarinda and Mount Pleasant appropriations contained in those bills. Instead,

Plaintiffs are asserting that Governor Branstad has a constitutional duty to faithfully

execute the law and Director Palmer is required to control, manage, and operate facilities

in Clarinda and Mount Pleasant. These arguments directly go to execution of the law, not

creation of the law. As a result, these legislators have no special interest apart from the

average citizen in ensuring that section 218.1 is followed.

D. Plaintiff Homan Cannot Assert Third-Party Standing.

Although Plaintiffs Petition asserts merely that Plaintiff Homan is a taxpayer,

resident and citizen of Iowa, Mr. Homans affidavit asserts he is president of AFSCME

and references the interests of MHI employees and patients. Homan Affidavit. Mr.

Homan however does not allege or assert that he has the legal authority to represent

AFSCME or the organizations interest in this suit. Ostensibly, therefore, Mr. Homan

appears to be attempting to assert the interest of a third-party and not an interest unique to

himself. Third-party standing normally requires a litigant to establish that parties not

before the court, who have a direct stake in the litigation, are unlikely or unable to assert

their rights. Godfrey, 752 N.W.2d at 424. Mr. Homan cannot meet this threshold

requirement of third-party standing.

First, AFSCME is able to assert its own rights. AFSCME has in the past and

likely will in the future sue the State of Iowa. AFSCME thus needs no special protection

or special designee to assert its interests. Second, AFSCME is currently asserting its

rights and the rights of its members in regard to the layoffs at Clarinda and Mount

Pleasant in the appropriate manner by filing a grievance under the Collective Bargaining

Agreement and Iowa Code chapter 20. See Exhibit A. The grievance is AFSCMEs

16


exclusive remedy regarding the layoffs, thus there is no additional interest for Mr. Homan

to vicariously assert.

Second, Mr. Homan has neither legal authority nor any unique personal interest to

act on behalf of former patients of the Clarinda and Mount Pleasant Mental Health

Institutes. He has no standing to assert their interests in this case.

III. This Case Presents a Nonjusticiable Political Question.

It is well-established principle that the courts will not intervene or attempt to

adjudicate a challenge to a legislative action involving a political question. King v.

State, 818 N.W.2d 1, 16 (Iowa 2012). The political question doctrine is rooted in the

separation of powers doctrine, which requires [courts to] leave intact the respective

roles and regions of independence of the coordinate branches of government. Id.

(quoting Des Moines Register & Tribune Co. v. Dwyer, 542 N.W.2d 491, 495 (Iowa

1996)).

Although determining whether a matter involves a political question is a case-

by-case, fact-specific examination, the Iowa Supreme Court has held that a political

question may be found when one or more of the following is present:

(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) a lack of judicially discoverable and manageable standards for resolving the issue; (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) the impossibility of a courts undertaking independent resolution without expressing a lack of the respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one questions.

Dwyer, 542 N.W.2d at 495. Several of these considerations are present here.

17


Its important to remember the case actually brought by the Plaintiffs. Plaintiffs

are not challenging the Governors use of his veto authority. Plaintiffs are not

challenging the meaning of Iowa Code section 218.1. Plaintiffs are not arguing that the

State failed to fund these facilities in the amount required by law. Review of those

challenges would not offend separation of powers and would not unnecessarily inject the

Judicial Branch into a dispute between the Legislative and Executive Branches.

Here, Plaintiffs seek this court to do what they presumably cannot do through the

legislative processoverride Governor Branstads veto. The power of the purse lies

with the Iowa General Assemblysubject to executive veto, not with this court and not

with the Defendants. Even assuming there is a statutory mandate for the State to

continuously operate mental health institutions in Clarinda and Mount Pleasant is does

not necessarily follow that the State is required to appropriate funds for their operation.

Associated Indus. v. Sec., 595 N.E.2d 282 (Mass. 1992) (The Legislature cannot,

through enactment of an act or statute, bind itself or its successors to make a particular

appropriation.). States cannot be compelled to appropriate funds for legislative

mandates. Nor can the State be compelled to expend funds absent an appropriation.

AFSCME v. Netsch, 575 N.E.2d 945, 946 (Ill. Ct. App. 1991) (finding that the

comptroller cannot pay salaries absent a specific appropriation for the salaries).

The Plaintiffs are attempting to have their cake and eat it too. As noted above,

they have not challenged the Governors use of the item veto, yet seek this court to

effectively nullify that actiona remedy not even available if this were an item veto

challenge. They also ask this court to insert itself in the political process and order the

18


Governor to convene a special session of the General Assembly.6 As members of the

General Assembly, Plaintiffs have the ability to call themselves back into special session.

Plaintiffs, in essence are attempting to circumvent the constitutional requirements for a

special session by appeal to this Court. See Iowa Const., Article III, 2 (Upon written

request to the presiding officer of each house of the general assembly by two-thirds of the

members of each house, the general assembly shall convene in special session.). This

Court must not permit them to succeed.

CONCLUSION

Governor Branstad and Director Palmer respectfully request that Plaintiffs

Amended Petition be dismissed in its entirety or, alternatively, Plaintiffs be ordered to

Recast their Amended Petition.

Respectfully submitted,

THOMAS J. MILLER ATTORNEY GENERAL OF IOWA JEFFREY S. THOMPSON SOLICITOR GENERAL OF IOWA /s/ Meghan Gavin

MEGHAN GAVIN

Assistant Attorney General Hoover State Office Building, 2nd Floor 1305 East Walnut Street Des Moines, Iowa 50319 Telephone: (515) 281-6736

6 The Governor cannot be commanded to convene a special session as the Governors power to call a special session is clearly discretionary and not mandatory. See Iowa Const., Art. III, 2 (The governor of the state may convene the general assembly by proclamation in the interim) (emphasis added). See also Geveden v. Kentucky, 142 S.W.3d 170, 173 (Ky. Ct. App. 2014) (holding that governor cannot be compelled to convene a special session despite the legislatures failure to pass a budget where governors authority to convene the legislature is discretionary).

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Fax: (515) 281-4209 E-mail: [email protected] ATTORNEYS FOR THE DEFENDANTS

Original filed. All parties served electronically: Mark Hedberg Nathaniel R. Boulton Sarah M. Wolfe 100 Court Avenue, Suite 425 Des Moines, Iowa 50309 ATTORNEYS FOR PLAINTIFFS

Proof of Service

The undersigned certifies that the foregoing instrument was served upon each of the persons identified as receiving a copy by delivery in the following manner on the 3rd day of August, 2015. ___ U.S. Mail ___ FAX ___ Hand Delivery ___ Overnight Courier ___ Federal Express ___ Other ___ E-mail X Electronically- ECF System

Signature: /s/ Lisa Wittmus

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gov. branstad brief on closing of mhis

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