IN THE IOWA DISTRICT COURT FOR POLK COUNTY

Transcription

1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY AMERICAN CIVIL LIBERTIES ) Case No: CVCV UNION, and LEAGUE OF UNITED ) LATIN AMERICAN CITIZENS ) OF IOWA, ) RESISTANCE TO MOTION ) FOR REVIEW ON THE MERITS Petitioners, ) OR, IN THE ALTERNATIVE, FOR ) TEMPORARY INJUNCTIVE v. ) RELIEF PURSUANT TO IOWA ) CODE 17A.19, AND MOTION TO MATT SCHULTZ, ) STRIKE APPENDIX AND ) STATEMENT OF UNDISPUTED Respondent. ) FACTS COMES NOW the Respondent, Matt Schultz, resists Petitioners Motion for Review on the Merits or, in the Alternative, for Temporary Injunctive Relief Pursuant to Iowa Code section 17A.19, and moves to strike Petitioners Appendix, and Statement of Undisputed Material Facts. Additionally, the Secretary requests the court issue an amended scheduling order. In support, the Respondent respectfully states the following: Introduction and Procedural History. 1. On August 8, 2012, the Petitioners filed a petition for judicial review challenging the Secretary of State s promulgation of two emergency rules and seeking temporary injunctive relief. The court granted temporary relief over the Secretary s objection. 2. While the injunction was in place, Petitioners sought to conduct discovery, including deposing the Secretary and an investigator for the Department of Criminal Investigations, ignoring the limited and appellate nature of judicial review.

2 3. Simultaneous to their discovery requests, the Petitioners filed a motion for summary judgment belying the necessity of their discovery requests and once again ignoring the tenants of judicial review where summary judgment is impermissible. The Secretary opposed these motions and the district court did not rule on either the discovery issues or the motion for summary judgment. Instead, the court granted the Secretary s request for a stay, pending completion of the normal rulemaking process. The Petitioners have not sought to reassert their motion for summary judgment or requested a ruling on the pending motion. 4. A new rule was adopted under normal rulemaking procedures and has been effective since March 27. Instead of limiting an amended petition to the newly adopted rule, the Petitioners filed an amended petition challenging both the emergency rules, which were wholly rescinded by the new rule, and the newly adopted rule itself. 5. The Secretary of State thereafter filed a partial motion to dismiss, seeking to limit the petition to the newly adopted rule. A hearing was held on the Respondent s motion on June 7, A ruling has not yet been issued. During this period, the court issued a scheduling order establishing the procedure and timeline for submission of the case. The case was scheduled to be fully submitted to the court on September 13, The ACLU and LULAC, however, filed a motion to modify this schedule, delaying final submission of the case until March 14, The court granted this six-month delay. 6. On August 26, the Petitioners took the unprecedented step of filing a Motion for Review on the Merits, or in the Alternative, For Temporary Injunctive Relief pursuant to Iowa Code section 17A.19. This latest round of filings by the ACLU and LULAC once again demonstrates an unwillingness to abide by the procedures outlined by the court and an unwillingness to wait for the district court to rule on the pending 2

3 partial motion to dismiss. As will be demonstrated below, the Petitioners extraordinary requests should be denied in their entirety as they are not cognizable under existing law, are beyond the court s jurisdiction, and are unwarranted under the facts at hand. Nevertheless, the Secretary would agree to expediting the submission of this judicial review if the Petitioners now agree that this case involves purely legal questions making discovery and the Petitioners prior request for a delay unnecessary. The Motion for Review on the Merits is Inappropriate, Particularly in Light of the Existing Scheduling Order. 7. A petition for judicial review is, of course, an appellate proceeding. As a result, different rules and procedures apply to the hearing and disposition of judicial review proceedings as distinguished from original actions. Black v. Univ. of Iowa, 362 N.W.2d 459, 463 (Iowa 1985). 8. Petitions for judicial review, moreover, often include pure questions of law, questions of application of law to facts, substantial evidence reviews, and any combination thereof. The Iowa Administrative Procedure Act provides a comprehensive, integrated procedure for review of action. Iowa Bankers Ass n v. Iowa Credit Union Dep t, 335 N.W.2d 439, 449 (Iowa 1983). 9. To effectuate appellate judicial review, district courts issue scheduling orders establishing an order for briefing and submission of the case following oral argument. An order establishing the conduct of the proceedings was issued in this case on May 7. The Petitioners, however, sought and were granted a six-month delay to the scheduling order. Final submission of the case is now set for March 14, 2014, at the Petitioners request. The Secretary will comply with the current Order Modifying Case Schedule 3

4 issued on May 30, 2013, and will submit his brief on the merits of this judicial review on January 20, Contrary to Petitioners assertions neither Iowa Medical Society v. Iowa Board of Nursing, 831 N.W.2d 826, 839 (Iowa 2013) nor City of Sioux City v. GME, Ltd., 584 N.W.2d 322, (Iowa 1998), permit a Motion for Review on the Merits. Instead those two cases stand for the proposition that the court will review a summary judgment ruling in a judicial review action as a review on the merits of the petition. These cases did not establish a new procedural mechanism for the adjudication of a judicial review. Review on the merits is accomplished through the judicial review process as established by the scheduling order. To allow the Petitioners to proceed with their motion would be to undermine the Iowa Supreme Court s long disapproval of summary judgments in judicial review petitions as the Petitioners motion is essentially a motion for summary judgment with a new caption. Contrary to Petitioners assertion the inapplicability of summary judgment to judicial review is not in name only. 11. It further appears that the Petitioners are seeking to adjudicate only a portion of the petition in their Motion for Review on the Merits. In that motion, Petitioners discuss only the issue related to the statutory authority of the Voter Registration Commission. The Iowa Supreme Court has been critical of past attempts to bifurcate judicial review. Iowa Bankers Ass n, 335 N.W.2d at 449. Additionally, because the Respondent s partial motion to dismiss has not yet been ruled upon, it is wholly unclear which rule or rules should be reviewed under the Petitioners motion the rescinded emergency rules, the newly adopted rule, or both. Grant of the Petitioners motion under these circumstances would be wholly inefficient. 4

5 There is no Basis for Temporary Injunctive Relief under Iowa Code section 17A In the alternative, Petitioners seek temporary injunctive relief under Iowa Code section 17A.19(5). The request should be denied as the district court has no jurisdiction to grant the relief and there is no factual basis for the request. 13. Under Iowa Code section 17A.19(5)(a), the filing of [a] petition for judicial review does not itself stay execution or enforcement of any agency action. An agency, however, may grant an application for stay. Iowa Code 17A.19(5)(a). Under section 17A.19(5)(b) (c) the district court has jurisdiction to review an agency s denial of a stay or other temporary remedy. Iowa Code 17A.19(5)(b) ( A party may file an interlocutory motion in the reviewing court, during the pendency of judicial review, seeking review of the agency s action on an application for stay or other remedies. ). 14. Despite Petitioners recognition that their request for temporary relief is governed by section 17A.19(5), the Petitioners did not first seek a stay with the Secretary. Without an agency decision regarding a stay, there is nothing for this court to review and jurisdiction over grant of the stay has not transferred to this court. As a result, Petitioners request for temporary relief should be denied. See Cota v. Iowa Envtl. Prot. Comm n, 490 N.W.2d (Iowa 1992) (affirming dismissal of petition for judicial review for failing to exhaust administrative remedies, where petitioner did not seek a stay or otherwise challenge order before the agency); Jahn v. Embassy Rehab., No , 2002 WL *1 (Iowa Ct. App. Oct. 22, 2002) (affirming dismissal of request for stay filed in the district court, holding the appropriate method to seek is contained in section 17A.19(5), which authorizes and details the process for seeking such a stay of execution from the agency, and provides a method for reviewing a 5

6 denial of that request in the district court. ). Petitioners should be well aware of the need to first request a stay with the agency as they failed to do so when they filed their first request for temporary injunctive relief in August Even if this court had jurisdiction to grant the requested relief, there is no factual basis to support the request. 16. In evaluating a request for temporary relief, the court considers (1) the extent to which the applicant is likely to prevail when the court finally disposes of the matter; (2) the extent to which the applicant will suffer irreparable injury if relief is not granted; (3) the extent to which the grant of relief to the applicant will substantially harm other parties to the proceedings; and (4) the extent to which the public interest relied on by the agency is sufficient to justify the agency s action in the circumstances. Iowa Code 17A.19(5). 17. While the Secretary asserts that none of the aforementioned criterion has been met, Petitioners entire argument in support of the motion is based on a falsity. Petitioners continually assert that they are trying to maintain the status quo. A grant of a stay at this juncture of the proceedings, however, would not maintain the status quo. 18. The permanent rule at issue in this case has been in effect since March 27, More than five months have now elapsed. Moreover, given the normal rulemaking process, the adoption and effective date of the permanent rule were known well in advance of March 27. At no time, prior to now, did the Petitioners seek to enjoin the effectiveness of the permanent rule. Such extraordinary relief is particularly inappropriate here where the delay in submission of the case on its merits was due to the Petitioners own request. 6

7 19. Any agreement between the federal government and the Secretary of State regarding access to the Systematic Alien Verification for Entitlements (SAVE) Program does not constitute an emergency. Negotiations between the federal government and the Secretary have been ongoing throughout the rulemaking process a situation of which the Petitioners were well aware. See Schultz Affidavit (filed August 16, 2012). The Secretary s intended use of the SAVE database was thoroughly debated and discussed at the fist hearing on the Petitioners Motion for Temporary Injunctive Relief on September 6, Petitioners argument, moreover, wholly misconstrues the purpose of the Secretary s access to the SAVE database. As noted by Secretary Schultz, he sought access to SAVE to determine the accuracy of Iowa s internal information regarding noncitizen registration and voting. See Schultz Affidavit at 8. The Secretary did not seek access to SAVE to identify additional allegedly fraudulent voters. Instead, the Secretary intends to use the database to eliminate names of potential fraudulent voters identified in the preliminary investigation the purpose of which is to ensure that qualified voters are not incorrectly suspected of fraudulent voting. Petitioners Supporting Documents Should be Struck from the Record. 21. Throughout the pendency of this judicial review action, the Petitioners have continuously misunderstood the judicial review process. First, Petitioners routinely assert this is a judicial review of other agency action. Second, Petitioners continue to assert there will be a trial. Both of these misunderstandings have affected Petitioners belief that additional evidence is warranted or even permitted under these circumstances. 7

8 22. There are three types of agency action contested cases, rulemaking, and the catch all, other agency action. Iowa Code 17A.2(2); Gartner v. Iowa Dep t of Pub. Health, 830 N.W.2d 335, 343 (Iowa 2013). Because this judicial review challenges the validity of rules adopted by the Secretary, it is obviously a rulemaking challenge. 23. A petition for judicial review is an appellate proceeding no trial, therefore, is conducted. The introduction of evidence in these proceedings is also limited. Under Iowa Code section 17A.19(7), a district court may take additional evidence in rulemaking and other agency action challenges. The Iowa Supreme Court, however, has made clear that the evidence admissible on judicial review is limited to that evidence which highlights what actually occurred in the agency in order to facilitate the court s search for errors of law or unreasonable, arbitrary, or capricious action. Office of Consumer Advocate v. Iowa Utilities Bd., 770 N.W.2d 334, 343 (Iowa 2009) (quoting Medco Behavioral Care Corp. v. Iowa Dep t of Human Servs., 553 N.W.2d 556, 562 (Iowa 1996)). Petitioners have not suggested how any of the documents included in their Appendix reflect what the agency actually did. 24. Finally, the vast majority of appellate cases discussing the applicability of section 17A.19(7) and permissible evidence on judicial review concern other agency action. There is little precedent on the evidence admissible in a rulemaking challenge. One could argue that the rules themselves are the sole reflection of the agency action making additional evidence wholly unnecessary. WHEREFORE, the Respondent respectfully requests that Petitioners Motion for Review on the Merits or, in the Alternative, for Temporary Injunctive Relief Pursuant to Iowa Code section 17A.19 be denied and the supporting documentation 8

9 struck from the record. Additionally, the Secretary requests that the court issue an amended scheduling order, expediting submission of this judicial review. All parties served by EDMS to: Respectfully submitted, THOMAS J. MILLER ATTORNEY GENERAL OF IOWA JEFFREY S. THOMPSON Deputy Attorney General /s/ Meghan Gavin MEGHAN 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 Meghan.Gavin@iowa.gov Joseph Glazebrook Dan L. Johnston Glazebrook & Moe, LLP Glazebrook & Moe, LLP 118 SE 4 th St., Ste SE 4 th St., Ste. 101 Des Moines, IA Des Moines, IA M. Laughlin McDonald Randall Wilson American Civil Liberties Union ACLU of Iowa Foundation, Inc. Foundation, Inc. 505 Fifth Avenue, Ste Peachtree Street, Suite 1440 Des Moines, IA Atlanta, GA Rita Bettis ACLU of Iowa Foundation, Inc. 505 Fifth Avenue, Ste. 901 Des Moines, IA ATTORNEYS FOR PETITIONERS 9