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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 ABDULSAMAD, 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,

No. CVCV050143

GOVERNOR BRANSTADS AND

DIRECTOR PALMERS BRIEF IN
SUPPORT OF THEIR MOTION TO
DISMISS OR IN THE ALTERNATIVE
MOTION TO RECAST
AMENDED PETITION

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

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

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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..........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-

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

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.
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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

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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

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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. . . .
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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

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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,

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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

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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

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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 caseby-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.

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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

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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: Meghan.Gavin@iowa.gov
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
___ Hand Delivery
___ Federal Express
___ E-mail
Signature: /s/ Lisa Wittmus

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___ FAX
___ Overnight Courier
___ Other
X ElectronicallyECF System