Embed Size (px)
Citation preview
IOWA SUPREME COURT _______________________________________________
No. 14-0178 _______________________________________________
DANNY HOMAN et al.,
Appellees,
vs.
TERRY BRANSTAD et al.,
Appellants. _______________________________________________APPEAL FROM THE IOWA DISTRICT COURT FOR POLK COUNTY
HONORABLE SCOTT D. ROSENBERG, JUDGE _______________________________________________
RESPONDENT-APPELLANTS’ AMENDED FINAL BRIEF AND REQUEST FOR ORAL ARGUMENT
_______________________________________________ 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 Fl. 1305 East Walnut Street Des Moines, Iowa 50319 Phone: (515) 281-6858 Fax: (515) 281-4209 Email: [email protected] Email: [email protected]
EL
EC
TR
ON
ICA
LL
Y F
ILE
D
A
UG
06,
201
4
CL
ER
K O
F SU
PRE
ME
CO
UR
T
ii
TABLE OF CONTENTS
Page TABLE OF AUTHORITIES .................................................................. iv STATEMENT OF THE ISSUE PRESENTED FOR REVIEW ................ 1 ROUTING STATEMENT .......................................................................4 STATEMENT OF THE CASE ................................................................ 5 STATEMENT OF THE FACTS ..............................................................9
I. Seclusion and Restraint, Executive Order 83, and the Task Force ........................................................................................9
II. Lawsuit and Application for Preliminary Injunction ........... 10
III. The Iowa General Assembly’s Response ............................... 11
ARGUMENT ........................................................................................ 13
I. The District Court Erred in Entering a Preliminary
Injunction Ordering Governor Branstad and Director Palmer to Reopen the Iowa Juvenile Home ...... 13
A. Error Preservation, Standard of Review,and Scope
of Review ................................................................. 13 B. The Petition was Unverified, and Plaintiffs
Presented No Evidence at the Hearing ................... 15
C. Appellees’ Legal Theory is Novel, Unprecedented, and Unarticulated ................................................... 19
D. There Were No Exceptional Circumstances
Warranting Preliminary Restraint Against Public Officers ................................................................... 22
iii
E. This Injunction Would Have Impermissibly Destroyed the Status Quo in the Iowa Supreme Court Had Not Intervened ...................................... 25
F. In Any Event, Appellees Lack Standing ................. 26
CONCLUSION ..................................................................................... 31 REQUEST FOR ORAL ARGUMENT .................................................. 31 CERTIFICATE OF COMPLIANCE ...................................................... 31
iv
TABLE OF AUTHORITIES
Cases Page(s)
Alons v. Iowa Dist. Ct., 698 N.W.2d 858 (Iowa 2005)...................... 30 Beidenkopf v. Des Moines Life Ins. Co., 160 Iowa 629, 142 N.W. 434 (1913).............................................................................. 8 City of Audubon v. Iowa Light, Heat & Power Co., 192 Iowa 1398, 186 N.W. 434 (1922) ................................................. 26 Clay v. Harrison Hills City Sch. Dist. Bd. of Educ., 723 N.E.2d 1149 (Ohio 1999) .............................................................. 22 Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597 (1923) ....................................................................... 22, 23 Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802 (4th Cir. 1991) ...................................................................................... 21 Giza v. BNSF Ry. Co., 843 N.W.2d 713 (Iowa 2014) .......................... 15 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) ....... 30 In re Trust No. T-1 of Trimble, 826 N.W.2d 474 (Iowa 2013) ........... 15 Iowa State Dep’t of Health v. Hertko, 282 N.W.2d 744 (Iowa 1979) .......................................................................................... 21 Kent Prods. Inc. v. Hoegh, 245 Iowa 205, 61 N.W.2d 711 (1953) .. 8, 22 Kleman v. Charles City Police Dep’t, 373 N.W.2d 90 (Iowa 1985) ........................................................................... 7, 14, 15, 25 Lee v. Consol. Sch. Dist. No. 4, 494 F. Supp. 987 (W.D. Mo. 1980) ... 21 Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180 (Iowa 2005) ........................................................................................ 25 Madison Square Garden Corp., v. Braddock, 90 F.2d 924 (3d Cir. 1937) ....................................................................................... 21 Matlock v. Weets, 531 N.W.2d 118 (Iowa 1995) .................................. 14 Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178 (Iowa 2001) ........ 14 Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637 (Iowa 1991) ........................................................................................... 14 Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312 (1997) .................... 28, 30 Reed v. Gaylord, 216 N.W.2d 327 (Iowa 1974) ................................... 21 Russell v. DeJongh, 491 F.3d 130 (3d Cir. 2007) ........................ 29, 30 State v. Krogmann, 804 N.W.2d 518 (Iowa 2011) ............................. 14 Teleconnect Co. v. Iowa State Commerce Comm’n, 366 N.W.2d 511 (Iowa 1985) ............................................................... 19 Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669 (D.C. Cir. 1985) .............................................................. 19
v
Statutes and Rules Article IV, Section 9 of the Iowa Constitution ..................................... 8 Iowa Code chapter 20 ................................................................... 27, 28 Iowa Code § 20.18 ................................................................................ 27 Iowa Code chapter 232 ....................................................................... 24 Iowa Code § 232.47(2) ......................................................................... 18 Iowa Code § 232.52(1) ......................................................................... 18 Iowa Code § 232.52(2)(e) .................................................................... 18 Iowa Code § 232.96 ............................................................................. 18 Iowa Code § 232.99 ............................................................................. 18 Iowa Code § 232.102(3) ....................................................................... 18 Iowa Code chapter 233 ....................................................................... 24 Iowa Code chapter 233B ....................................................................... 4 Iowa Code chapter 234 ....................................................................... 24 2014 Iowa Acts, H.F. 2463, § 147 ............................................. 11, 12, 25 2014 S-5166, § 147 ......................................................................... 12, 25 2014 SCR 101 ...................................................................................... 24 2013 HR 7 ........................................................................................... 24 2013 HCR 5 ......................................................................................... 24 2013 Iowa Acts, ch. 138, § 147 ............................................................. 12 Iowa Rule of Civil Procedure 1.1502 ............................................... 6, 15 Iowa Rule of Civil Procedure 1.1508 .................................................... 9 Iowa Rule of Appellate Procedure 6.104(2) .................................... 9, 11 Iowa Rule Appellate Procedure 6.1101(2) ............................................ 4 Other 43 C.J.S., Injunctions, § 108c, at 619 ................................................. 22
1
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW
I. WHETHER THE DISTRICT COURT ERRED IN ORDERING GOVERNOR BRANSTAD AND DIRECTOR PALMER TO REOPEN THE IOWA JUVENILE HOME.
AUTHORITIES
Iowa Rule Appellate Procedure 6.1101(2) Iowa Code chapter 233B Iowa Rule of Civil Procedure 1.1502
Kleman v. Charles City Police Dep’t, 373 N.W.2d 90, 95 (Iowa 1985) Kent Prods. Inc. v. Hoegh, 245 Iowa 205, 61 N.W.2d 711, 715 (1953) Article IV, Section 9 of the Iowa Constitution Beidenkopf v. Des Moines Life Ins. Co., 160 Iowa 629, 142 N.W. 434, 438 (1913) Iowa Rule of Civil Procedure 1.1508 Iowa Rule of Appellate Procedure 6.104(2) 2014 Iowa Acts, H.F. 2463, § 147 2014 S-5166, § 147 2013 Iowa Acts, ch. 138, § 147 Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178 (Iowa 2001) Matlock v. Weets, 531 N.W.2d 118, 123 (Iowa 1995) Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 639 (Iowa 1991)
2
State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011) Giza v. BNSF Ry. Co., 843 N.W.2d 713, 718 (Iowa 2014) In re Trust No. T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013) Iowa Code § 232.47(2) Iowa Code § 232.96 Iowa Code § 232.52(1) Iowa Code § 232.52(2)(e) Iowa Code § 232.99 Iowa Code § 232.102(3) Teleconnect Co. v. Iowa State Commerce Comm’n, 366 N.W.2d 511, 514 (Iowa 1985) Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) Reed v. Gaylord, 216 N.W.2d 327, 332 (Iowa 1974) Iowa State Dep’t of Health v. Hertko, 282 N.W.2d 744, 751 (Iowa 1979) Madison Square Garden Corp., v. Braddock, 90 F.2d 924, 927 (3d Cir. 1937) Lee v. Consol. Sch. Dist. No. 4, 494 F. Supp. 987, 989 (W.D. Mo. 1980) Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 813 (4th Cir. 1991) 43 C.J.S., Injunctions, § 108c, at 619
3
Clay v. Harrison Hills City Sch. Dist. Bd. of Educ., 723 N.E.2d 1149 (Ohio 1999) Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597 (1923) Iowa Code chapters 232 Iowa Code chapter 233 Iowa Code chapter 234 2013 HCR 5 2013 HR 7 2014 SCR 101 Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180 (Iowa 2005) City of Audubon v. Iowa Light, Heat & Power Co., 192 Iowa 1398, 186 N.W. 434 (1922) Iowa Code chapter 20 Iowa Code § 20.18 Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312 (1997) Russell v. DeJongh, 491 F.3d 130, 134 (3d Cir. 2007) 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) Alons v. Iowa Dist. Ct., 698 N.W.2d 858 (Iowa 2005)
4
ROUTING STATEMENT
The Iowa Supreme Court should retain this interlocutory
appeal. This case concerns fundamental and urgent issues of broad
public importance requiring prompt or ultimate determination by the
Iowa Supreme Court. Iowa R. App. P. 6.1101(2). On the motion of
five “taxpayer[s], resident[s], and citizen[s]” of the State of Iowa
(Petition at ¶¶ 1-5; App. 2), the District Court granted an
unprecedented preliminary injunction compelling Governor Terry
Branstad (“Governor Branstad”) and Charles M. Palmer, Director of
the Iowa Department of Human Services (“Director Palmer” and
“IDHS,” respectively), to reopen the Iowa Juvenile Home (“the IJH”).
Dist. Ct. Order at 17–18; App. 400–01. The IJH was a state-run
institution at Toledo, Iowa, for children adjudicated delinquent or in
need of assistance. See generally Iowa Code chapter 233B. Months
earlier Director Palmer had made the “difficult decision” to find
alternative placements for these children after well-publicized
complaints about the IJH’s uses of seclusion and restraint. Petition,
Ex. C, at 1; App. 10.
5
STATEMENT OF THE CASE
On January 2, 2014, Plaintiffs Danny Homan, Steven Sodders,
Jack Hatch, Pat Murphy, and Mark Smith, each as a “taxpayer,
resident and citizen” of the State of Iowa, filed a “Petition for
Declaratory Judgment, Injunctive Relief, and Writ of Mandamus”
(“Petition”) against Governor Branstad and Director Palmer.
Petition; App. 2–14. The Petition contained no counts or claims for
relief, but instead requested a declaration that Governor Branstad’s
“refusal to allow the spending of funds appropriated in Section 17 of
S.F. 446 [of 2013 Iowa Acts] is an unconstitutional impoundment”;
an injunction “prohibiting the closure of the [IJH] and prohibiting
the misappropriation of funds dedicated to the [IJH]”; and “a Writ of
Mandamus ordering that the [IJH] remain open.” Petition at 5; App.
6. Plaintiffs alleged that, on December 9, 2013, Director Palmer had
notified the public that the IJH would close. Plaintiffs requested an
expedited hearing, and the Chief Judge of the Fifth Judicial District
agreed to expedite the case. Pls., Letter Dated 1/2/14; App. 14; Order
Dated 1/10/14; App. 15–16.
On January 10, 2014, Plaintiffs filed an “Application for
Preliminary Injunction with Notice and Request for Hearing”
6
(“Application for Preliminary Injunction”), pursuant to Iowa Rule of
Civil Procedure 1.1502. App. 17–18. Plaintiffs requested immediate
relief on their Petition, arguing that the impending closure of the IJH
would result in the alternative placement of children, lay-offs of
employees, and “irreparable harm” to the Iowa Constitution.
On January 15, 2014, the IJH closed. The IJH thus closed after
Plaintiffs filed the Petition and Application for Preliminary Injunction
but before the Defendants responded thereto or the district court
scheduled a hearing on the Application for Preliminary Injunction.
On January 21, 2014, Defendants separately moved to dismiss
the Petition on the grounds that Plaintiffs lacked standing and that
chapter 17A was Plaintiffs’ exclusive remedy. App. 19–37.
Defendants also resisted the Application for Preliminary Injunction.
App. 38–46. On January 23, 2014, the court sua sponte scheduled a
hearing on Defendants’ Motion to Dismiss and Plaintiffs’ Application
for Preliminary Injunction. On January 24, 2014, Plaintiffs resisted
Defendants’ motion to dismiss. App. 49–59.
On January 31, 2014, the district court heard argument on
Defendants’ motion to dismiss and held an evidentiary hearing on
Plaintiffs’ Application for Preliminary Injunction. Surprisingly, at the
7
evidentiary hearing on the Application for Preliminary Injunction, no
evidence was offered, received, or admitted on behalf of Plaintiffs.
Defendants offered, and the district court received and admitted, two
exhibits on behalf of the Defendants. See Def.’s Ex. A (with
attachments 1, 2, and 3) and Def.’s Ex. B; App. 123–381; 382–383.
On February 5, 2014, by written order, the district court denied
Defendants’ motion to dismiss and granted Plaintiffs’ Application for
Preliminary Injunction. App. 384–402. Specifically, the District
Court ordered,
Defendants shall reopen the [IJH] and abide by the duly passed laws of the State of Iowa which established the [IJH] and 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 [IJH] in compliance with Senate File 446, Laws of 85th General Assembly, 2013 Session.
Order at 17–18; App. 400–401. Before arriving at this order, the
District Court essentially accepted all of the allegations in Plaintiffs’
unverified Petition as true and granted Plaintiffs’ Application for a
Preliminary Injunction without any record evidence. But see Kleman
v. Charles City Police Dep’t, 373 N.W.2d 90, 95 (Iowa 1985) (holding
a district court may not grant a preliminary injunction “solely on the
basis of the allegations contained in an unverified petition”).
8
The court’s Order impermissibly threatened to destroy the
status quo and put the future of the children in question in doubt.
See Kent Prods. Inc. v. Hoegh, 245 Iowa 205, 61 N.W.2d 711, 715
(1953). The injunction was based in part on a legal conclusion that
Appellees were likely to succeed on their claim that Article IV, Section
9 of the Iowa Constitution (“the Take Care Clause”)1 required
Governor Branstad and Director Palmer to spend the entire amount
appropriated to the IJH. But the district court itself recognized that
“there is absence of judicial precedence” in Iowa for Appellees’ claim.
Dist. Ct. Order at 8; App. 391. The district court’s grant of a
preliminary injunction, therefore, directly violated over one hundred
years of this Court’s precedent. See, e.g., Beidenkopf v. Des Moines
Life Ins. Co., 160 Iowa 629, 142 N.W. 434, 438 (1913) (“An injunction
will not issue where the right of the complainant . . . depends upon a
disputed question of law about which there may be a doubt, which
has not been settled by the . . . law of this state.”); see also Kent
Prods., 245 Iowa at 205, 61 N.W.2d at 715 (observing that a
preliminary injunction “against public officers should not be ordered
1Article IV, section 9 of the Iowa Constitution states, “He shall take care that the laws are faithfully executed.”
9
unless on the pressure of urgent public necessity” and “ordinarily . . .
will be refused where plaintiff’s right to an injunction is doubtful.”).
Before issuing a writ, however, the District Court sua sponte
granted Plaintiffs an additional twenty-five days to submit affidavits
concerning the appropriate amount of a bond. App. 401. See Iowa R.
Civ. P. 1.1508 (stating that a bond must be filed before any writ of
temporary injunction issues). Within this twenty-five-day window,
however, Defendants immediately sought interlocutory review of the
District Court’s decision to grant the Application for Preliminary
Injunction.
On February 21, 2014, the Iowa Supreme Court granted
Defendants’ request for interlocutory review. App. 419–420.
Pursuant to Iowa Rule of Appellate Procedure 6.104(2), the Iowa
Supreme Court stayed the District Court’s Order and all other
proceedings in the District Court. No bond was ever filed, and the
injunction thus never went into effect.
STATEMENT OF THE FACTS
I. Seclusion and Restraint, Executive Order 83, and
the Task Force.
10
In August 2013, after learning about the IJH’s alleged use of
seclusion and restraint on juveniles, Governor Branstad issued
Executive Order 83. Petition, Exhibit B; App. 8–9. Executive Order
83 created the Iowa Juvenile Home Protection Task Force (“the Task
Force”). Petition, Exs. B, C; App. 8–9; 10–12.
In early December 2013, after examining the Task Force’s
recommendations, Director Palmer found alternative placements for
21 children who were then living at the IJH. Petition, Ex. C; App. 10–
12. 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 agreed,
and by the time of the District Court’s ruling the children were all
living elsewhere.
II. Lawsuit and Application for Preliminary
Injunction.
As explained in more detail in the Statement of the Case above,
over a month later Plaintiffs filed the Application for Preliminary
Injunction in the District Court. Application, passim; App. 17–18.
Plaintiffs consist of one taxpayer and four legislators, but are notably
not employees or residents of the IJH. Id. Plaintiffs sought to require
11
Governor Branstad and Director Palmer to reopen the IJH in spite of
all prior determinations that living at the IJH was not in the
children’s best interests. Id.
On February 5, 2014, the District Court granted the Application
and entered an unprecedented preliminary injunction ordering
Governor Branstad to reopen the IJH even though no evidence was
offered, received, or admitted on behalf of the Plaintiffs at the
evidentiary hearing. Dist. Ct. Order at 17–18; App. 400–401; Tr. at
31-33, 40-42; App. 110-112; 119-121.
On February 21, 2014, the Iowa Supreme Court granted
Appellants’ application for appeal in advance of final judgment. The
District Court’s injunction and all other proceedings presently are
stayed, pursuant to Iowa Rule of Appellate Procedure 6.104(2).
III. The Iowa General Assembly’s Response.
While this case was on appeal, the Iowa General Assembly
decided to completely defund the IJH’s operations. See 2014 Iowa
Acts, H.F. 2463, § 147 (as signed by Governor Branstad on May 30,
2014). Although during the legislative process the Iowa Senate had
passed an amendment to H.F. 2463 which would have continued to
fund the IJH’s operations during Fiscal Year 2015 (“FY 2015”), the
12
Iowa House refused to concur in such amendment. Compare S-5166,
§ 147 (proposing to appropriate over $7 million to the IJH for not
more than 54 full-time-equivalent positions (“FTEs”) and at least 20
beds for juveniles), with 2014 Iowa Acts, H.F. 2463, § 147.
The final version of H.F. 2463, as signed into law by Governor
Branstad on May 30, 2014, removed all funding for the IJH’s
operations. 2014 Iowa Acts, H.F. 2463, § 147 (amending 2013 Iowa
Acts, ch. 138, § 147). The final bill only appropriated up to $507,766
to fund two FTEs to secure and maintain IJH’s empty building and
vacant grounds. Id.
13
ARGUMENT
I. The District Court Erred in Entering A Preliminary Injunction Ordering Governor Branstad and Director Palmer to Reopen the Iowa Juvenile Home.
A. Error Preservation, Standard of Review, and Scope
of Review. Defendants preserved error. On January 21, 2014,
Defendants filed a Motion to Dismiss and Supporting Brief (“the
Motion”) and a Resistance to Petition for Preliminary Injunction and
Supporting Brief (“the Resistance”). In those two filings, as well at
argument during the hearing, Defendants generally pressed the
arguments raised here. See, e.g., Resistance at 3; App. 40; Tr. at 33,
36; App. 112, 115 (arguing Plaintiffs must present evidence at the
hearing, because an unverified petition standing alone is insufficient);
Resistance at 3–6; App 40–43; Tr. at 37; App. 116 (arguing a novel or
unprecedented legal theory cannot support an injunction); Motion at
3–9 (arguing Plaintiffs lack standing); App. 21–27; Tr. at 36; App. 115
(arguing the goal of a temporary injunction is to preserve the status
quo, not destroy it).
The standards and scope of review are settled and familiar. The
issuance or denial of a temporary injunction invokes the equitable
power of the court. As a result, in determining whether to grant a
14
temporary injunction, courts employ equitable principles. Max 100
L.C. v. Iowa Realty 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, 373 N.W.2d at 95
(“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.”). “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 Iowa Supreme Court has framed its review of the District
Court’s granting of a temporary injunction as follows:
A temporary injunction is a preventive remedy to maintain the status quo of the parties prior to final judgment and to protect the subject of the litigation. Our review is for an abuse of discretion. The decision to issue a temporary injunction requires great caution, deliberation, and sound discretion. We usually will not overturn such a decision unless there has been an abuse of discretion or violation of a principle of equity.
State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011) (citations and
internal marks omitted).
15
“A court abuses its discretion when its ruling is based on
grounds that are unreasonable or untenable.” Giza v. BNSF Ry. Co.,
843 N.W.2d 713, 718 (Iowa 2014) (quoting In re Trust No. T-1 of
Trimble, 826 N.W.2d 474, 482 (Iowa 2013)). “The grounds for the
ruling are unreasonable or untenable when they are based on an
erroneous application of the law.” Id. Therefore, the Iowa Supreme
Court corrects errors of law under the abuse-of-discretion standard.
Id.
B. The Petition was Unverifed, and Appellees
Presented No Evidence at the Hearing. Iowa law is quite clear.
Iowa Rule of Civil Procedure 1.1502 requires a request for preliminary
injunction to be supported by affidavit. This Court has further
explained that before a court can grant a preliminary injunction,
there must be some 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 preliminary
injunction may prevent against the harm that may result from its
issuance.” Kleman, 373 N.W.2d at 96.
Plaintiffs did not submit any affidavits with their request for
temporary injunction. Nor did the Plaintiffs call a single witness at
16
the hearing on the request for temporary injunction. Tr. pp. 31–42;
App. 110–121. In fact, Plaintiffs did not introduce any evidence at the
hearing at all. Id. The only “evidence” in the record submitted by the
Plaintiffs were five attachments to their Petition—a copy of the
appropriation bill, a copy of the Governor’s Executive Order creating
the Task Force, a copy of an IDHS press release from December 9,
2013, a 1998 Administrative Order concerning line item veto cases,
and a letter from the Plaintiffs to the Chief Judge of the Fifth Judicial
District requesting that this case be treated like a line-item veto
case—and an affidavit from Plaintiff Danny Homan in support of their
resistance to the motion to dismiss.
The district court based the preliminary injunction on the
unverified and unsubstantiated claims in the Petition. The
background facts identified by the district court and set forth in the
Statement of Facts above consist of the allegations in the Petition,
none of which were verified and which Defendants’ evidence in part
disproved. Compare District Court Ruling pp. 1–5 with Exhibit A
(DHS’ CFO testifying appropriated funds have not been transferred
and are not intended to be transferred); App. 384–388; 123–125.
While certainly it is proper to assume all allegations in the Petition
17
are true when evaluating a motion to dismiss, the opposite is true
when evaluating a request for preliminary injunction.
The District Court’s Order does not point to a single piece of
evidence to support its ruling. There was no evidence of irreparable
injury and it is wholly unclear how the Plaintiffs would be irreparably
injured if the preliminary injunction was denied. The Court
concluded there was irreparable injury but neglected to identify any
facts upon which that conclusion is based. Dist. Ct. Order at 13; App.
396. In the Application for Preliminary Injunction, the Plaintiffs did
not even allege an injury to themselves. Instead they alleged (1) the
amorphous injury which occurs whenever a law is not faithfully
executed, (2) the potential injury to the juveniles formerly placed at
the IJH if they are moved elsewhere, and (3) the potential injury to
the employees of the IJH, and the Toledo community, as a result of
potential layoffs.
In any event, neither Plaintiffs nor the District Court cited any
allegation or authority that an “irreparable” injury to the Constitution
or the law itself warrants grant of the extraordinary remedy of a
temporary injunction. Plaintiffs neither alleged nor presented any
evidence as to irreparable injury which may result to former residents
18
of the IJH. Indeed, these Plaintiffs have no right to assert an injury to
children. The district court did not even mention the juveniles in
issuing the preliminary injunction. The only evidence in the record
about the former residents of the facility was presented by the
Defendants. That evidence, moreover, demonstrates that the best
interests of the juveniles is not served by the preliminary injunction.
Mr. LaVerne Armstrong’s affidavit demonstrates that juvenile courts
throughout Iowa are responsible to determine which placement is in
the best interests of the former resident of IJH. Defts’ Ex. B, passim;
App. 382–383.
Issuance of the preliminary injunction could have had no effect
on the placement of these juveniles. The juvenile court has exclusive
jurisdiction to adjudicate a child as having committed a delinquent
act or as being a child in need of assistance. Iowa Code §§ 232.47(2);
232.96. Further, only the juvenile court has jurisdiction to determine
the least restrictive disposition appropriate for adjudicated
delinquents or children in need of assistance and to order placement
of such juveniles at the IJH. Id. §§ 232.52(1); 232.52(2)(e); 232.99;
232.102(3). The district court’s order cannot directly alter or change
the current placement of any juveniles in Iowa. Essentially, the
19
district court ordered the IJH “reopened” without any residents.
Even assuming Plaintiffs could raise the interests of IJH’s
former employees, and assuming there was some evidence in the
record about the employees, the employees have not suffered an
irreparable injury warranting issuance of a preliminary injunction.
Presumably, the employees’ injury is the loss of employment—the loss
of salary. This is a purely financial concern. Economic loss standing
alone does not constitute irreparable injury. Teleconnect Co. v. Iowa
State Commerce Comm’n, 366 N.W.2d 511, 514 (Iowa 1985);
Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d
669, 674 (D.C. Cir. 1985).
The district court abused its discretion in granting a
preliminary injunction without evidentiary support. In any event,
there could be no evidence of irreparable injury here—to these five
Plaintiffs—warranting issuance of a preliminary injunction.
C. Appellees’ Legal Theory is Novel, Unprecedented,
and Unarticulated. Even if Plaintiffs had presented evidence to
support their Application for a Preliminary Injunction, which
Plaintiffs did not do, the District Court’s order still must be reversed
because it is based upon a novel, unprecedented, and unarticulated
20
legal theory. As framed by the District Court, Plaintiffs’ Petition rests
solely on the Take Care Clause of the Iowa Constitution, which
Plaintiffs allege prohibits executive “impoundment” of appropriated
funds. All parties, and the District Court, agree that there is no
precedent for such an “impoundment” claim in Iowa. Plaintiffs
referred to “the nonexistence of Iowa Supreme Court case law” in
their briefing to the district court. Pls. Res. to Defs Mtn. to Dism. at
6; App. 54. The district court recognized the “absence of judicial
precedent for [the] constitutional claim” in denying the Defendants’
Motion to Dismiss. Nevertheless, the district court found there was a
“possibility of a right of recovery under such a claim” and granted
Plaintiffs’ Application. Dist. Ct. Order at 8; App. 391.
In contradiction to this finding of a “possibility” of recovery on
an unprecedented claim, the District Court elsewhere found Plaintiffs
had “a likelihood of success on the merits” and granted the
preliminary injunction. Dist. Ct. Order at 13; App. 396. A possibility
and a likelihood are two very different things. The dichotomy and the
inconsistency of the District Court on this point cannot be reconciled.
A novel, unprecedented claim cannot and should not serve as the
21
basis for a preliminary injunction.2
Where there is a disputed question of law, the Iowa Supreme
Court has recognized 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 by this Court 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). “[T]o 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) (similar).
The district court abused its discretion in issuing a temporary
injunction on the “possibility” that Plaintiffs’ novel claim may—at
some uncertain date in the future—be recognized in Iowa.
2 It also demonstrates why mandamus could not lie here as
requested in Plaintiff’s Petition. 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).
22
D. There Are No Exceptional Circumstances
Warranting Preliminary Restraint Against Public Officers.
“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, 245 Iowa at 205, 61 N.W.2d at 715
(citing 43 C.J.S., Injunctions, § 108c, at 619). See also Clay v.
Harrison Hills City Sch. Dist. Bd. of Educ., 723 N.E.2d 1149 (Ohio
1999) (“Great caution should be exercised when a court of law is
requested to constrain the functions of other branches of
government.”). The reason for this restraint is clear—to exercise this
authority too broadly is to risk subsuming the powers reserved to the
other branches of government.
In Commonwealth of Massachusetts v. Mellon, 262 U.S. 447,
43 S. Ct. 597 (1923), Massachusetts argued that a Congressional
appropriation of money to individual states in exchange for
complying with the Maternity Act (designed to reduce maternal and
infant mortality) was unconstitutional. The theory was that the
purpose of the appropriation was not national but local to the states
23
and that the financing of it fell disproportionately to industrial states
such as Massachusetts. Id. at 479, 43 S. Ct. at 598.
The United States Supreme Court held that it has no authority
to grant preventive relief when the complaining party was asking the
Court to prevent execution of an unconstitutional enactment. “To do
so would be, not to decide a judicial controversy, but to assume a
position of authority over the governmental acts of another and
coequal department, an authority which plainly we do not possess.”
Id. at 488, 43 S.Ct. at 601. The Supreme Court held that it could only
intervene when the party alleging unconstitutionality “has sustained
or is immediately in danger of sustaining some direct injury as a
result of its [the statute’s] enforcement, and not merely that he suffers
in some indefinite way in common with people generally.” Id.
The grant of the preliminary injunction put the District Court in
the unprecedented and unenviable position of controlling the
operation of the IJH. The district court ordered the reopening of IJH
even though it has no jurisdiction to order that children be placed at
the IJH or to direct how an executive branch agency should exercise
its discretion in spending an appropriation. The district court’s order
is based on a single premise—that Governor Branstad did not
24
faithfully execute IJH’s appropriation. This appropriation bill,
however, did not exist in a vacuum. Under the Take Care Clause,
Governor Branstad has the duty to faithfully execute all laws of the
State of Iowa. These laws include the entire statutory scheme of
children adjudicated delinquent or in need of assistance. See Iowa
Code chapters 232, 233, 234. These laws are based on a single,
overriding premise—the best interests of the children.
As Chief Executive, Governor Branstad had the duty to balance
these interests. By ordering the reopening of the IJH, the district
court exceeded its constitutional authority and impermissibly
assumed the duties of another branch of government without
sufficient justification.
The district court’s issuance of the injunction was particularly
inappropriate—and in hindsight clearly inconsistent with legislative
intent—in light of the Iowa General Assembly’s ability to settle the
matter through legislation. The 85th Iowa General Assembly’s 2014
Legislative Session began on January 13, 2014, see HCR 5 and HR 7
(2013) and SCR 101 (2014), and continued throughout the remainder
of the district court proceedings. While this case was on appeal, the
Iowa General Assembly decided to completely defund all of the IJH’s
25
operations and explicitly rejected S-5166, which would have
appropriated funds to operate the IJH. See 2014 Iowa Acts, H.F.
2463, § 147 (as signed by Governor Branstad on May 30, 2014). The
Iowa General Assembly, therefore, ultimately rejected the district
court’s statutory construction and instead placed its imprimatur upon
Defendants’ actions to protect Iowa’s children. The final bill only
appropriated up to $507,766 to fund two FTEs to secure and
maintain IJH’s empty building and vacant grounds. Id.
The Iowa Supreme Court has “repeatedly emphasized that the
issuance or refusal of a temporary injunction is a delicate matter—an
exercise of judicial power which requires great caution, deliberation,
and sound discretion.” See Kleman, 373 N.W.2d at 95. Not only was
the District Court decision to grant an injunction against public
officers, including a sitting Governor, made with undue haste, but
subsequent events clearly belie its wisdom. It must be reversed.
E. The Injunction Would Have Destroyed the Status
Quo if the Iowa Supreme Court Had Not Intervened. “A
temporary injunction is a preventive remedy to maintain the status
quo of the parties prior to final judgment and to protect the subject of
the litigation.” Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180,
26
184 (Iowa 2005) (emphasis added, internal quotation marks
omitted). By the time of the hearing, the IJH was already closed.
Contrary to Plaintiff’s requests in the Petition and the Application for
Preliminary Injunction, therefore, the district court’s injunction
served to destroy rather than preserve the status quo. This Court
should dissolve the injunction under longstanding legal principles.
See, e.g., City of Audubon v. Iowa Light, Heat & Power Co., 192 Iowa
1398, 186 N.W. 434, 435 (1922) (reversing and dissolving temporary
injunction whose “effect . . . was not to maintain the status quo, but
rather to destroy it with the stroke of a pen” (internal quotation
omitted)).
F. In Any Event, Appellees Lack Standing. Plaintiffs
profess to be one citizen, resident, and taxpayer of Iowa, and four
citizens, residents, taxpayers, and legislators of Iowa. Petition at ¶¶
1–5; App. 2. Plaintiffs asserted they were harmed by Defendants’
actions only as citizens and taxpayers. Petition at ¶ 10. Despite this
limited pleading, the district court found organizational and
legislative standing to sue. Not only is there no support for this
determination based upon the pleadings, the determination is
27
contrary to the very decisions cited by the District Court in support of
its ruling.
Organizational Standing. The District Court sua sponte
found organizational standing without briefing from the parties.
AFSCME is not a party to this action. How may there be
organizational standing when no organization is a named party?
Although Danny Homan is a named Plaintiff, Homan does not
allege or assert that he has the legal authority to represent AFSCME
or the organization’s interests in this suit. Homan stated in an
affidavit in response to Defendants’ Motion to Dismiss that he is
President of AFSCME, but does not say he is authorized to bring suit
on that organization’s behalf. Homan Affidavit; App. 60–62.
This is not a mere defect in the Petition that may be easily
amended. Even assuming AFSCME were a named party, or that
Homan could somehow in his individual capacity assert the union’s
interests, there still would be no organization standing. AFSCME’s
interest and injury lays in the layoffs or reduction of force of IJH’s
former employees. That interest is wholly subsumed by the Collective
Bargaining Agreement (”CBA”) and Iowa Code chapter 20. Under the
CBA, AFSCME is required to file a grievance. Iowa Code § 20.18.
28
This is the union’s exclusive remedy for violations of the CBA and
chapter 20.
Both AFSCME and Homan are undoubtedly aware of the need
to grieve violations of the CBA. The record shows AFSCME and
Homan in fact filed a grievance on December 19 challenging the
closure of the IJH. Defendants' Reply Brief Ex. 1; App. 69–70. As a
result of this grievance, the State and AFSCME entered into a
Memorandum of Understanding (“MOU”). Defendants' Reply Brief
Ex. 2; App. 71–76. The question wholly ignored by the District Court
is what interest or injury does AFSCME or Homan have above and
beyond this grievance and MOU? The answer is none—Homan has
no standing to sue.
Legislative Standing. In finding the four legislators had
standing, the district court expanded the doctrine of legislative
standing to near universal portions—wholly beyond all precedent.
Contrary to the district court’s ruling, legislative standing is not and
cannot be absolute, as the United States 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
29
underlying the standing doctrine. In any event, because there is no
Iowa Supreme Court authority on point, a preliminary injunction is
clearly inappropriate.
This is not a question of the effectiveness of a legislator’s vote.
The issue in this case is whether the executive branch executed a law
in the manner intended by the legislature—and subsequent events
during the 2014 Legislative Session while this case was on appeal
answered that question squarely in Defendants’ favor. In any event,
the issue of whether the executive branch executed a law in the
manner intended by the legislature is 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
30
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). 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 v. Iowa Dist. Ct., 698
N.W.2d 858, 873 (Iowa 2005). 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
disagreed with the Defendants’’ interpretation of its appropriations
bill, its prerogative was to pass legislation in the legislative session,
not to sue. In fact, the legislature did exactly the opposite.
31
None of the Plaintiffs had standing to sue. Granting an
injunction to Plaintiffs without an interest and injury in the action
was an abuse of discretion.
CONCLUSION
This Court should reverse the district court’s granting of
Plaintiffs’ Application for Preliminary Injunction and dissolve the
District Court’s Injunction in its entirety.
REQUEST FOR ORAL ARGUMENT
Appellants respectfully requests to be heard in oral argument.
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Iowa
Rule of Appellate Procedure 6.903(1)(g)(1) or (2) because this brief
5443 words, excluding the parts of the brief exempted by Iowa Rule of
Appellate Procedure 6.903(1)(g)(1).
This brief complies with the typeface requirements and the
type-style requirements of Iowa Rule of Appellate Procedure
6.903(1)(e) and (f) because this brief has been prepared in a
proportionally spaced typeface using Microsoft Office Word 2003 in
14-point, Georgia font.
32
/s/ Meghan Gavin Meghan Gavin Date: August 6, 2014 Assistant Attorney General
