and Charles M. Palmer, Director of the Department of Human Services, by and through

Transcription

1 IN THE DISTRICT COURT FOR POLK COUNTY ) DANNY HOMAN, STEVEN J. ) SODDERS JACK HATCH, PAT ) Case No. EQCE MURPHY, and MARK SMITH, ) ) Plaintiffs, ) MOTION TO DISMISS ) AND SUPPORTING BRIEF v. ) ) TERRY BRANSTAD, GOVERNOR ) STATE OF IOWA and CHARLES M. ) PALMER, IOWA DEPARTMENT OF ) HUMAN SERVICES DIRECTOR, ) ) Defendants. ) ) COME NOW the Defendants, Terry Branstad, Governor of the State of Iowa, and Charles M. Palmer, Director of the Department of Human Services, by and through the undersigned counsel, and respectfully move to dismiss the above captioned claim pursuant to Iowa Rule of Civil Procedure 1.421(1) for failure to state a claim upon which relief can be granted. In support thereof, the Defendants submit the following brief. TABLE OF CONTENTS STATEMENT OF THE CASE... 2 STANDARD FOR GRANTING MOTION TO DISMISS... 3 ARGUMENT... 3 I. Plaintiffs Lack Standing to Bring an Action for Declaratory Relief, Injunctive Relief, or A Writ of Mandamus... 3 A. Plaintiffs Do Not Have Standing as Residents or Citizens of the State of Iowa... 5 B. Plaintiffs Do Not Have Standing as Taxpayers... 6 C. Plaintiffs Sodders, Hatch, Murphy, and Smith Do Not Have Standing as Legislators

2 II. Plaintiffs Have Failed to State a Claim Upon Which Relief Can be Granted... 9 A. The Governor Must Be Dismissed From This Lawsuit B. The Iowa Administrative Procedure Act Affords the Exclusive Remedy and, Under Binding Iowa Supreme Court Precedent, Requires Dismissal of this Lawsuit CONCLUSION STATEMENT OF THE CASE On December 9, 2013, Charles M. Palmer, Director of the Iowa Department of Human Services, made the difficult decision to find alternative placements for 21 children who were then living at the Iowa Juvenile Home at Toledo. Petition, Ex. C. After carefully examining the recommendations of the Iowa Juvenile Home Task Force, Director Palmer determined that finding appropriate alternative placements is in the best interest of the youth and consistent with the Task Force s goals. Id. Judges across the State of Iowa have agreed, and by and large the children are now living elsewhere. Governor Terry E. Branstad created the Task Force after complaints about the Home s use of seclusion and restraint. Petition, Exhibit B, C. The Plaintiffs, one taxpayer and four legislators, now ask this Court to require the State of Iowa to resume spending state taxpayer dollars on the Iowa Juvenile Home at Toledo. Plaintiffs extraordinary and unprecedented request, for which Plaintiffs cite no legal authority, seeks to have this Court require Director Palmer to maintain the Iowa Juvenile Home in order to fully spend the money appropriated by the legislature. But Plaintiffs have no standing to bring the lawsuit, and even if Plaintiffs did have standing, 2

3 the lawsuit fails to state any claim upon which relief may be granted. This Court should dismiss this lawsuit. STANDARD FOR GRANTING MOTION TO DISMISS A motion to dismiss tests the legal sufficiency of the challenged pleading. Southard v. Visa U.S.A., Inc., 734 N.W.2d 192, 194 (Iowa 2007). For purposes of evaluating a motion to dismiss for failure to state a claim upon which relief can be granted, facts pled in the petition are assumed true and all doubts and ambiguities are resolved in favor of the nonmoving party. Id. A motion to dismiss shall be granted only if the petition shows no right of recovery under any state of the facts. Comes v. Microsoft Corp., 646 N.W.2d 440, 442 (Iowa 2002). ARGUMENT I. Plaintiffs Lack Standing to Bring an Action for Declaratory Relief, Injunctive Relief, or a Writ of Mandamus. Courts traditionally have been cautious to avoid issuing advisory opinions. As a result, the judiciary has developed a variety of rules designed to impose self-restraint. Godfrey v. State, 752 N.W.2d 413, 417 (Iowa 2008). Amongst these rules is the doctrine of standing, which ensures that the proper party is bringing the action by requiring the complaining party to have a sufficient stake in a justiciable controversy. Standing in Iowa is comprised of two elements. In order to pursue a claim, a plaintiff must (1) have a specific personal interest in the litigation and (2) be injuriously affected. Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d 470, 475 (Iowa 2004). Though these two elements have much in common, they are separate requirements. Godfrey, 752 N.W.2d at 418. The first requirement that plaintiffs have a personal or legal interest in the litigation recognizes that in order to have standing one 3

4 must have a specific interest in the action, apart from the general interest of the public at large. Id. at 419. The second requirement that plaintiffs be injured in fact requires the plaintiffs to show some specific and perceptible harm from the challenged action, distinguished from those citizens who are outside the subject of the action but claim to be affected. Id. (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14, 93 S. Ct. 2405, 2417 n.14 (1973)). Iowa s two-pronged standing doctrine parallels the federal doctrine, even though federal standing is jurisdictional, while standing in Iowa is prudential. Godfrey, 752 N.W.2d at 418; Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 867, 869 (Iowa 2005) (discussing Article III case and controversy requirements). As a result, federal case law will often serve as persuasive authority in determining the applicability of Iowa s standing doctrine. When standing is at issue, the focus is on the party, not on the claim. Alons, 698 N.W.2d at 864. In other words, the merits of the plaintiffs claim are irrelevant to the question of standing. Citizens, 686 N.W.2d at 475 ( Whether litigants have standing does not depend on the legal merit of their claims, but rather whether, if the wrong alleged produces a legally cognizable injury, they are among those who have sustained it. ). Plaintiffs have the burden to establish standing. FOCUS v. Allegheny County Ct. of Common Pleas, 75 F.3d 834, 838 (3d Cir. 1996). In bringing their claim, Plaintiff Danny Homan notes that he is a taxpayer, resident and citizen of the State of Iowa. Petition 1. Plaintiffs Sodders, Hatch, Murphy, and Smith note they are members of the Iowa General Assembly, taxpayers, residents and citizens of the State of Iowa. Petition 2 5. None of these grounds, 4

5 however, provides any of the Plaintiffs with proper standing to being this action declaratory judgment, injunctive relief, or writ of mandamus. As a result, Plaintiffs Petition for Declaratory Judgment, Injunctive Relief, and Writ of Mandamus should be dismissed. A. Plaintiffs Do Not Have Standing as Residents or Citizens of the State of Iowa. The Iowa Supreme Court has long-recognized that mere citizenship confers no right to maintain [an] action. Polk Cnty. v. Dist. Ct., 133 Iowa 710, 711, 119 N.W. 1054, 1054 (1907). The reason for this prohibition is clear by asserting a claim based upon citizenship, the plaintiffs have not alleged a specific personal or legal interest in the underlying action different from that of the public generally. See Korioth v. Briscoe, 523 F.2d 1271, 1276 (5th Cir. 1975) ( It is tautologically clear that a citizen who asserts only his citizen status as a basis for standing to pursue constitutional or statutory claims has not specified any injury which sets him apart from the mass of citizens who desire that the state adhere to the legal amenities of governance. ). The United States Supreme Court has also long-rejected citizenship as a basis for standing. Justice Louis Brandeis noted almost one hundred years ago, Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys not be wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit.... Fairchild v. Hughes, 258 U.S. 126, , 43 S. Ct. 274, 275 (1922) (emphasis added); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, , 112 S. Ct (1992) ( We have consistently held that a plaintiff raising only a generally available grievance about government claiming only harm to his and every citizen s interest in proper application of the Constitution and laws, and seeking relief that no more directly and 5

6 tangibly benefits him than it does the public at large does not state an Article III case or controversy. ); Tyler v. Judges of Ct. of Registration, 179 U.S. 405, 406, 21 S. Ct. 206 (1900) ( [E]ven in a proceeding which he prosecutes for the benefit of the public... [the plaintiff] must generally aver an injury peculiar to himself, as distinguished from the general body of his fellow citizens. ). B. Plaintiffs Do Not Have Standing as Taxpayers. It has long been established... that the payment of taxes is generally not enough to establish standing to challenge an action taken by the [] Government. Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 594, 127 S. Ct. 2553, 2559 (2007). The United States Supreme Court created a narrow exception to this doctrine to recognize standing for plaintiffs to challenge a law authorizing the use of federal funds which contravenes the Establishment Clause. Id. That narrow exception is not at issue here. The Iowa Supreme Court, however, has recognized an additional exception a taxpayer has standing to maintain an action in his own name to prevent unlawful acts by a public officer which would increase the amount of taxes he is required to pay.... Alons, 698 N.W.2d at 865 (quoting Polk County v. Dist. Ct., 133 Iowa 710, 712, 110 N.W. 1054, 1055 (1907))). This recognition is due to the common sense observation that taxpayers have an interest in ensuring that their tax dollars are lawfully spent. Wallace v. Des Moines Indep. Cmty. Sch. Dist. Bd. Of Dirs., 754 N.W.2d 854, 859 (Iowa 2008). Even this exception is not absolute. Taxpayers are injured in fact and thus acquire standing by showing some link between higher taxes and the government action being challenged. Godfrey, 752 N.W.2d at 424. That link, however, is wholly absent here. There is no allegation, much less evidence, that taxes will be increased as a result of any 6

7 of the alleged actions by the Defendants. In fact, Plaintiffs are alleging that Defendants are refusing to spend money. No injury in fact occurs in these circumstances. Plaintiffs do not have standing to bring an action for declaratory judgment or writ of mandamus. Plaintiffs likewise do not have standing to bring an action for injunctive relief. Although taxpayers have the right to bring an action to enjoin the illegal expenditure of public funds, Wallace, 754 N.W.2d at 859, that is not what the Plaintiffs are seeking here. Plaintiffs do not allege that any illegal expenditure has occurred. All Plaintiffs have alleged is that the Defendants will not spend the maximum appropriated for the Iowa Juvenile Home. As will be discussed below, Iowa law does not require the maximum appropriation to be spent but to the contrary outlines how unspent funds are transferred at the end of the fiscal year. C. Plaintiffs Sodders, Hatch, Murphy, and Smith Do Not Have Standing as Legislators. From the face of the Petition it appears that the Plaintiffs are asserting standing solely as taxpayers and citizens of Iowa. See Petition 18 ( All actions of the Defendant Governor herein complained of have injured and damaged the Plaintiffs both as taxpayers and citizens of Iowa.... ) (emphasis added). Even if the Petition could be read broadly to assume Plaintiffs Sodders, Hatch, Murphy, and Smith are asserting standing in their official capacity as legislators, their claim nevertheless must fail. The United States Supreme Court has recognized legislative standing for over seventy years. In Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972 (1939), the Court held that state legislators had standing to challenge the process by which an act was ratified. In so holding, the Court recognized that legislators have a plain, direct and adequate interest in maintaining the effectiveness of their votes. Coleman, 307 U.S. at 438, 59 7

8 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 (1997). Indeed, absolute legislative standing would thwart the concern for separation of powers and a limited judiciary the two interests underlying the standing doctrine. None of the Plaintiffs are alleging that their right to vote either as citizens or legislators has been abridged or nullified by any action of the Defendants. Instead, what the Plaintiffs are claiming is that the Defendants unlawfully executed an appropriations bill. That is a fundamentally different question, and a question for which the Plaintiffs cannot show a particularized injury. As the Third Circuit Court of Appeals has held, [A]n official s mere disobedience or flawed execution of a law for which a legislator voted... is not an injury in fact for standing purposes. Russell v. DeJongh, 491 F.3d 130, 134 (3d Cir. 2007). In examining the contours of legislative standing, federal courts have consistently distinguished between the complete withdrawal or nullification of a voting opportunity and a diminution in a legislator s effectiveness, subjectively judged by him or her, resulting from Executive action withholding information or failing to obey a statute enacted through the legislators.... Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir.) (en banc), vacated on other grounds, 444 U.S. 996, 100 S. Ct. 533 (1979). See also Chiles v. Thornburgh, 865 F.2d 1197, 1205 (11th Cir. 1989) (rejecting the argument that the defendants failure to comply with these laws deprived the Senator of the effectiveness of his vote on the legislation and that the deprivation constitutes a legally cognizable injury ); Daughtrey v. Carter, 584 F.2d 1050, 1057 (D.C. Cir. 1978) (finding no legislative standing to challenge executive nonenforcement of a law); Harrington v. 8

9 Schlesigner, 528 F.2d 455, 459 (4th Cir. 1975) (holding legislator did not have standing to enjoin President from spending money in violation of legislation restricting the sue of certain appropriations). The reason for this distinction is simple once a law is passed a legislator has no special interest apart from the average citizen in seeing a law followed. Russell, 491 F.3d at 135. This distinction is especially important where, as here, the legislature retains the ability to correct any perceived error in the Defendants execution of the law through the legislative process. Id. at 136; see also Raines, 521 U.S. at 829, 117 S. Ct. at This situation is analogous to Alons. In Alons, the Iowa Supreme Court determined that legislators lacked standing to challenge a district court s interpretation of a statute. Alons, 698 N.W.2d at 873. The Court noted, If the legislature disagrees with a court s interpretation, its prerogative is to pass legislation making it clear that the court s interpretation of their intention was incorrect. Id. Just as in Alons, if the legislature disagrees with the Defendants interpretation of its appropriations bill, it prerogative is to pass legislation in the ongoing legislative session that just began, not to sue. II. Plaintiffs Have Failed to State a Claim Upon Which Relief Can be Granted. Even if Plaintiffs had standing to pursue this action, which they do not, the Petition fails to state a claim upon which relief may be granted. Plaintiffs have wrongly filed an original action against Governor Branstad and Director Palmer 1 instead of complying with the familiar requirements of the Iowa Administrative Procedure Act, 1 Petitioners name Terry Branstad, Governor State of Iowa and Charles M. Palmer, Iowa Department of Human Services Director as Defendants. For purposes of this Motion, the State assumes Plaintiffs are suing these individuals in their official capacities and the Petition is, in substance, a suit against the State itself. SeeEgerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Tinius v. Carroll Cnty.Sherriff Dep t, 255 F. Supp. 2d 971, 986 (N.D. Iowa 2003) (Bennett, J.) (same). 9

10 Iowa Code chapter 17A, and bringing a petition for judicial review against the Iowa Department of Human Services. Pursuant to Iowa Rule of Civil Procedure 1.421, the Court must dismiss this case. The Petition, which is not a model of clarity, contains no counts or express claims for relief. Rather, Plaintiffs describe the Petition generally as a declaratory judgment action challenging the constitutionality of Defendant Governor s closing of the Toledo Iowa Juvenile Home and impoundment of appropriated funds in 2013 Iowa Acts, S.F. 446, 17. Petition at 9. Plaintiffs do not allege what constitutional provision Governor Branstad and Director Palmer allegedly violated, but, in Plaintiffs subsequently filed Motion for Temporary Injunction, Plaintiffs assert Governor Branstad ran afoul of Article IV, Section 9 of the Iowa Constitution ( the Take Care Clause ). For relief, Petitioners more broadly request this Court not only (1) declare Governor Branstad s alleged refusal to allow the spending of funds appropriated in Section 17 of SF 446 is an unconstitutional impoundment but also (2) enjoin the closure of the Iowa Juvenile Home and the misappropriation of funds dedicated to the Toledo Home and (3) issue a Writ of Mandamus ordering that the Toledo Home remain open. A. The Governor Must Be Dismissed From This Lawsuit. At the outset, the State stresses that any claim that the Governor has impounded funds must necessarily fail. It should not go unnoticed that Petitioners cite no constitutional or statutory provision in the Petition to support the remarkable legal proposition that a state agency s failure to spend the entirety of an appropriation would be illegal and somehow beget a claim against the Governor for relief. 10

11 In the case at bar, any claim for an unconstitutional impoundment against the Governor fails for three equally sufficient, independent reasons: First, S.F. 446 does not require that the Iowa Department of Human Services spend all funds appropriated with reference to the Iowa Juvenile Home. By its very terms, S.F. 446 merely states that the Iowa Department of Human Services may spend not more than identified amounts as is necessary. Petition, Exhibit A. S.F. 446 does not require the Governor to spend $8,859,355 on the Iowa Juvenile Home. There can be no impoundment here, because S.F. 446 does not require the expenditure of funds. Rather, the legislature gave the Executive Branch the discretion to determine how much of the appropriation was necessary. Second, even if S.F. 447 purported to mandate that the Iowa Department of Human Services (or the Governor) spend every dollar appropriated for the Iowa Juvenile Home, the Take Care Clause 2 of the Iowa Constitution can afford Plaintiffs no relief against the Governor. Petitioners underlying legal premise that the Governor is always required to ensure that every dollar the legislature appropriates is always spent lest the Governor violate Article IV, 9 of the Iowa Constitution and answer to the judiciary lacks any support in the law. See 1980 Op. Atty Gen 786, 1980 WL 26040, *12 (Aug. 11, 1980) ( The Governor has implied constitutional authority under Article IV, 9, to make a reasonable judgment that a legislative objective can be accomplished by spending less than the sum appropriated for that objective. ). To the contrary, the Iowa Code expressly confers authority on the Governor to modify appropriations, Iowa Code 2 Article IV, section 9 of the Iowa Constitution states, He shall take care that the laws are faithfully executed. 11

12 sections 8.31 through The law also permits the Governor and agency directors to transfer appropriated funds within an agency, Iowa Code section Third, at present there is no justiciable controversy against the Governor under the Take Care Clause of the Iowa Constitution. On one of the rare occasions in which the Iowa Supreme Court has cited the Take Care Clause, the Iowa Supreme Court recognized that there can be no justiciable controversy without a prior, underlying finding of some illegality. See AFSCME/Iowa Council 61 v. State, 484 N.W.2d 390, 395 (Iowa 1992) (holding [i]t was entirely appropriate for the governor to secure a judicial determination [of the underlying dispute] before acting to fund ). Rather, [t]he judicial branch will intercede, under its constitutional authority, in [the appropriations] process only when a failure to act... has left an adjudicated state obligation [unenforced]. Id. at 396. Instead of preemptively enjoining or otherwise hauling the Governor into this legal fray over the Iowa Department of Human Services authority over the Iowa Juvenile Home, this Court should trust, owing to goodwill and respect for the rule of law on the part of the governor and legislature, such a point will not be reached in this dispute. Id. To hold to the contrary would risk transforming every disagreement with state action into a question of constitutional import. In sum, the appropriations in S.F. 446 is not as absolute as Plaintiffs appear to assume. Nor could the construction of any appropriations bill be so absolute, in our system of laws, given the practical realities of legislating and governing. See, e.g., Fletcher v. Peck, 10 U.S. (Cranch) 87, 136, 1810 WL 1558 (1810) ( It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other 12

13 departments. How far the power of giving the law may involve every other power... never has been, and perhaps never can be, definitely stated. ). But even if there were some statutory violation that this Court, or some other court, may adjudicate in the future with respect to the Iowa Department of Human Services authority over the Iowa Juvenile Home, it does not follow that Plaintiffs already have a cognizable constitutional claim against the Governor under the Iowa Constitution s Take Care Clause. Plaintiffs claim against the Governor under the Take Care Clause of the Iowa Constitution clearly fails and must be dismissed. 3 B. The Iowa Administrative Procedure Act Affords the Exclusive Remedy and, Under Binding Iowa Supreme Court Precedent, Requires Dismissal of this Lawsuit. Once it is recognized that Plaintiffs have no original action against the Governor, the Petition s fatal flaw comes into sharp focus. Although styled as an action against the Governor and Director Palmer, what Plaintiffs truly seek is judicial review of agency action. Indeed, elsewhere in the Petition, Plaintiffs allege Charles Palmer [Director of the Iowa Department of Human Services], acting under the direction and/or approval of Governor Branstad... gave notice that the Toledo Iowa Juvenile Home was closing. Petition at 15 (citing Exhibit C). The Iowa Juvenile Home is a creature of statutes, and those statutes place the Iowa Juvenile Home under the auspices of the Iowa Department of Human Services. The Iowa Code provides that the Director of the Department of Human Services shall have the general and full authority given under statute to control, manage, direct, and operate 3 In a related vein, this Court has already rejected Plaintiffs attempt to characterize the substance of this lawsuit as in a nature that is similar to a line-item veto case against the Governor. This case is about administrative agency action, not the executive power of the Governor. See Order dated January 10,

14 the Iowa Juvenile Home. Iowa Code 218.1(8); see also Iowa Code ch. 233A (generally providing for the Iowa Juvenile Home under the ultimate administration of the Director of the Iowa Department of Human Services). The Iowa Code grants the Iowa Department of Human Services rulemaking authority for the Iowa Juvenile Home, see Iowa Code 218.4, which the Iowa Department of Human Services has done, see generally 441 Iowa Admin. Code ch The Iowa Department of Human Services serves as the guardian for any children placed at the Iowa Juvenile Home pursuant to juvenile court order. Iowa Code (2)(e), (4). Any disagreement Plaintiffs may have with the State s actions with respect to the Iowa Juvenile Home clearly must be administrative agency action on the part of the Iowa Department of Human Services. Neither a declaratory judgment nor a writ of mandamus may lie here. It is beyond peradventure that the judicial review provisions of the Iowa Administrative Procedure Act are the exclusive means by which a party may seek judicial review of administrative agency action. Iowa Code 17A.19; Norland v. Iowa Dep t of Job Serv., 412 N.W.2d 904, 908 (Iowa 1987). Where, as here, plaintiffs attempt to bring an original action, styled as either a declaratory judgment or mandamus action challenging agency action, the Iowa Supreme Court has held repeatedly that the action should be dismissed for lack of jurisdiction over the case. See, e.g., IES Util. Inc. v. Iowa Dep t of Revenue & Fin., 545 N.W.2d 536, (Iowa 1996). Put somewhat differently, [d]eclaratory relief is not appropriate when there is a complete remedy otherwise provided by law that is intended to be exclusive. Iowa Dep t of Transp. v. Iowa Dist. Ct., 534 N.W.2d 457, 459 (Iowa 1995) (quoting City of 14

15 Des Moines v. Des Moines Police Bargaining Unit Ass n, 360 N.W. 2d. 730 (Iowa 1985)). Likewise, [m]andamus is not available to establish legal rights, but only to enforce legal rights that are clear and certain. Stafford v. Valley Cmty. Sch. Dist., 298 N.W.2d 307, 309 (Iowa 1980). Mandamus is a summary and extraordinary writ that will not be issued in doubtful cases but only where the rights and duties are clear and there is no other speedy and adequate remedy in the ordinary course of the law. Reed v. Gaylord, 216 N.W.2d 327, 332 (Iowa 1974). The issue is not whether the court has subject matter jurisdiction over declaratory judgment actions or applications for writs of mandamus generally. For example, this Court clearly may issue declaratory judgment actions under Iowa Rule of Civil Procedure Rather, the question is whether this Court has the authority to entertain the Petition based on the particular procedural status of the case. IES, 545 N.W.2d at 538 (emphasis in original). Time and again the Iowa Supreme Court and Iowa Court of Appeals have required dismissal of similar lawsuits. IES, 545 N.W.2d at (citing cases); City of Des Moines v. Des Moines Police Bargaining Unit Ass n, 360 N.W.2d 729, 731 (analyzing what is now Iowa R. Civ. P. 1101, stating that declaratory judgment power is not unlimited and is not appropriate and must be denied when there is a complete remedy otherwise provided by law that is intended to be exclusive, and sua sponte reversing district court for granting declaratory judgment because plaintiffs sought declaratory judgment against an administrative agency instead of proceeding under Iowa Code chapter 17A); Basik Five Trust v. Culver, No , 2007 WL , *3 (Iowa Ct. App. Jan. 18, 2007) (per curiam) (rejecting attempt to bring a count in an original 15

16 action for a declaratory judgment and/or writ of mandamus against the Iowa Secretary of State, because the Iowa Administrative Procedure Act, Iowa Code chapter 17A, provided the exclusive means for such relief) (citing Graham v. Baker, 447 N.W.2d 397 (Iowa 1989) and Citizens Aide/Ombudsman v. Rolfes, 454 N.W.2d 815 (Iowa 1990)). The Iowa Supreme Court has observed that requiring allegedly aggrieved parties to exhaust all avenues for judicial review recognizes that [t]he very purpose of an administrative agency... is to expertly form various functions in a general area of the law for the benefit of the general public (the taxpayers that fund the operation of all administrative agencies). IES, 545 N.W.2d at 539. Decision-making authority with respect to the Iowa Juvenile Home is vested with the Iowa Department of Human Services and can only be challenged under Iowa Code chapter 17A. 4 Further, Plaintiffs failure to first seek agency review under Iowa Code chapter 17A is fatal to this lawsuit and requires dismissal. Because Plaintiffs have not brought their concerns to the Iowa Department of Human Services which is unsurprising given they lack any personal interest in the case, as explained above Plaintiffs clearly have not exhausted their administrative remedies. Iowa Code 17A.19(1). Even if Plaintiffs had exhausted their administrative remedies, the Iowa Supreme Court has held this Court may not simply construe the Petition as an appellate proceeding under Iowa Code chapter 17A. The Court has said: 4 The Plaintiffs further cannot join an original law or equity action, assuming one exists, with a petition for judicial review. Black v. Univ. of Iowa, 362 N.W.2d 459, 462 (Iowa 1985). If a justiciable claim against the Governor survives it would need to be severed from any claim against the Department. If a viable judicial review proceeding does exist, it too would need to be recast namely the Department and not Director Palmer as the proper Respondent. 16

17 [W]hen a party initiates a district court declaratory judgment action to obtain an adjudication entrusted exclusively in the first instance to an administrative agency, the action must be dismissed unless it is indistinguishable in substance from a petition for judicial review and all of the jurisdictional prerequisites for judicial review of agency action under [Iowa Code chapter 17A] have been met. City of Des Moines, 360 N.W.2d at 730 (emphasis added). Plaintiffs Petition is not indistinguishable in substance from a petition for judicial review. A judicial review action is an appellate proceeding, and the Petition is pled as an ordinary action. See IES, 545 N.W.2d at (emphasizing that the district court in a chapter 17A proceeding sits in an appellate capacity and holding that [e]xhaustion of administrative remedies is generally required prior to permitting a party to seek relief via judicial review in district court (emphasis in original)). Further, under Iowa Code chapter 17A, ordinary rules of notice pleading do not apply. Second Injury Fund v. Klebs, 539 N.W.2d 178, 180 (Iowa 1995). The pleading requirements set forth in Iowa Code chapter 17A are much more stringent than those in an original action under the Iowa Rules of Civil Procedure. Id. Iowa Code section 17A.19(4) requires a petitioner to state the facts on which venue is based, the grounds on which relief is sought, and the relief sought. Id. (emphasis added). Further, each claimed error must be separately and distinctly stated. Id. Plaintiffs have not, for example, separately and distinctly stated the grounds upon which Plaintiffs seek reversal of an act, or failure to act, on the part of the Iowa Department of Human Services. Plaintiffs do not identify the subparagraphs of Iowa Code chapter 17A.19(10) upon which Plaintiffs rely to seek reversal of the agency action in question. See Iowa Code 17A.19(10) (limiting reversal to certain specified grounds); State v. Clark, 608 N.W.2d 5, 8 (Iowa 2000) (after quoting chapter 17A s pleading requirements at length, reversing judgment in favor of plaintiff in 17

18 declaratory judgment action because the plaintiff was required to file a petition for judicial review). Nor have Plaintiffs met all the jurisdictional prerequisites for filing an action under Iowa Code chapter 17A. For example, Plaintiffs did not perfect proof of mailing by affidavit, as required by Iowa Code section 17A.19. Plaintiffs failure to do so deprives this Court of jurisdiction and requires dismissal. See Iowa Code 17A.19(2) ( Such personal service or mailing shall be jurisdictional. ); Dawson v. Iowa Merit Employment Comm n, 303 N.W.2d 158, 160 (1981)) (affirming dismissal); Neumeister v. City Development Bd., 291 N.W.2d 11, 14 (Iowa 1980) (dismissing appeal, where petitioner, because he did not file a petition for judicial review, necessarily did not perfect proof of mailing by affidavit within ten days, but instead delivered a copy of a petition with an original notice); Record v. Iowa Merit Employment Dep t, 285 N.W.2d 169, 173 (Iowa 1979) (similar); Iowa Dep t of Transp. v. Iowa Dist. Ct. ex rel. Shelby Cnty., No , 2004 WL , *2 & n.2 (Iowa Ct. App. Aug. 26, 2004) (reiterating that the court must refuse to issue a ruling unless... all of the jurisdictional prerequisites for judicial review of agency action have been met (quoting Clark, 608 N.W.2d at 7) and noting that [n]o proof-of-mailing affidavit... appears in the record ). While these jurisdictional requirements may appear at first glance to be mere formalities, the Iowa Supreme Court s consistent decisions in this area of the law underscore and reinforce fundamental principles of administrative law the legislature s specific standards for challenging agency action, as set forth in the Iowa Administrative Procedure Act, and the appellate nature of this Court s review. See Neumeister, 291 N.W.2d at

19 granted. CONCLUSION For the reasons expressed above, Defendants pray that their motion to dismiss be Respectfully submitted, THOMAS J. MILLER ATTORNEY GENERAL OF IOWA /s/ Jeffrey S. Thompson JEFFREY S. THOMPSON Solicitor General of Iowa /s/ Timothy L. Vavricek TIMOTHY L. VAVRICEK Assistant Attorney General /s/ Meghan L. Gavin MEGHAN L. GAVIN Assistant Attorney General Iowa Department of Justice Hoover State Office Bldg., 2 nd Fl East Walnut Street Des Moines, Iowa Phone: (515) Fax: (515) Jeffrey.Thompson@iowa.gov tvavric@dhs.state.ia.us Meghan.Gavin@iowa.gov 19