IN THE DISTRICT COURT FOR POLK COUNTY ) DANNY HOMAN, STEVEN J. ) SODDERS JACK HATCH, PAT ) Case No. EQCE075765 MURPHY, and MARK SMITH, ) ) Plaintiffs, ) RESISTANCE TO PETITION ) FOR PRELIMINARY v. ) INJUNCTION AND ) SUPPORTING BRIEF 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 Iowa Department of Human Services, by and through the undersigned counsel, and resist the Plaintiffs Petition for Preliminary Injunction. In support thereof, the Defendants respectfully submit the following brief. STATEMENT OF THE CASE The Plaintiffs, one taxpayer and four legislators, ask this Court to grant injunctive relief (1) restraining Defendants from closing the Iowa Juvenile Home; and (2) disallowing the spending of money appropriated to the Iowa Juvenile Home. (Plaintiff s Application for Preliminary Injunction). 1 Plaintiffs extraordinary and unprecedented request, for which Plaintiffs cite no legal authority, seeks to have this Court require Director Palmer to reopen the Juvenile Home in spite of all prior determinations that living at the Juvenile Home is not in the children s best interests. 1 In their Brief in Support of Petition for Preliminary Injunction, Plaintiffs further ask the court to enjoin any construction of the structure. Defendants do not understand this request for relief. 1
TEMPORARY INJUNCTION STANDARDS The issuance or denial of a temporary injunction invokes the equitable power of the court. As a result, in determining whether to grant a temporary injunction, courts employ equitable principles. Max100 L.C. v. Iowa Reality 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 v. Charles City Police Dep t, 373 N.W.2d 90 (Iowa 1985) ( 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. ). In doubtful cases, 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 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). The Third Circuit has succinctly articulated the standard as to 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). 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. 2
Matlock, 531 N.W.2d at 123. 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, Inc. v. Hoegh, 245 Iowa 205, 61 N.W.2d 711, 715 (1953) (citing 43 C.J.S., Injunctions, 108c, at 619). Before a court can grant a temporary injunction, there must be 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 temporary injunction may prevent against the harm that may result from its issuance. Kleman, 373 N.W.2d at 96. See also, Iowa R. Civ. Pro. 1.1502 (requiring petition to be supported by affidavit). Plaintiffs have not complied with the requirement that their Petition for Preliminary Injunction be supported by affidavit. In fact, they acknowledge that there are no affidavits available and instead ask the court simply to rely upon their pleadings. (Plaintiff s Brief in Support of Petition for Preliminary Injunction, unnumbered p. 3). However, unverified pleading, standing alone, is not sufficient evidence to authorize an interlocutory or temporary injunction. Id. (citing 43A C.J.S. Injunctions 214, at 469). II. THE LEGAL THEORY ASSERTED BY PLAINTIFFS HAS NOT BEEN RECOGNIZED OR CLEARLY DEFINED BY THE IOWA COURTS AND A TEMPORARY INJUNCTION CANNOT ISSUE IN SUCH CIRCUMSTANCES. The legal theory espoused by Plaintiffs, and upon which they seek injunctive relief, is identified by them as follows: Therefore, injunctive relief is necessary in order to stop the illegal impoundment of funds appropriated to the Iowa Juvenile Home at Toledo. Further, injunctive relief is necessary to prevent the funds from being made available for other, unintended purposes which would result in a misappropriation of legally appropriated funds. 3
(Plaintiff s Brief in Support of Petition for Preliminary Injunction, unnumbered p. 3). The Plaintiffs entire case is based upon an alleged illegal impoundment of funds, yet they fail to cite one case from any jurisdiction that would support their theory. It is Plaintiff s burden to cite legal authority to establish that injunctive relief is warranted. Kleman, 373 N.W.2d at 96. They have not done so. There are a handful of Attorney General opinions in which the concept of impoundment has been discussed, but those decisions acknowledge there is no Iowa Supreme Court guidance on the issue. 1980 Iowa Op. Atty. Gen. 786, at 6 (1980) ( in Iowa the question of what type of executive action constitutes an impoundment of appropriated funds has not been precisely identified as a matter of law ). The acknowledged lack of any clear legal authority for the Plaintiff s position is fatal to their injunction request. As noted above, injunctive relief is not appropriate when there is no settled legal authority. Kent Products, Inc., 245 Iowa 205, 61 N.W.2d at 715 (1953). Federal courts have addressed impoundment in the context of federal appropriations, but even then it has been stated that the crucial issue will involve a determination as to whether the language of an appropriations statute mandates the expenditure of appropriated funds or delegates discretion to the executive to spend the funds. 1980 Iowa Op. Atty. Gen. 786, at 5 (1980). In this case, the language of the appropriation at issue, coupled with the statutory discretion afforded the executive branch to manage the budget, provides no legal basis upon which a court could determine that there has been an impoundment of funds. The appropriation at issue states: Sec. 17. JUVENILE INSTITUTIONS. There is appropriated from the general fund of the state to the department of human services for the fiscal year beginning July 1, 2013, and ending June 30, 2014, the following 4
amounts, or so much thereof as is necessary, to be used for the purpose designated: 1. For operation of the Iowa juvenile home at Toledo and for salaries, support, maintenance, and miscellaneous purposes, and not for more than the following full-time equivalent positions:... $8,859,355...FTEs 114.0 The appropriation, on its face, gives discretion to the executive branch to determine how much of the appropriation is necessary for the operation of the Iowa Juvenile Home and for other miscellaneous purposes. There is nothing in the appropriation language that mandates that the entire amount be expended. The legislature clearly gave the Defendants the authority to determine how much of the appropriation to expend and the Plaintiffs are asking the Court to now ignore that authority. The authority to execute and supervise the budget of the state of Iowa lies with the Governor. See generally Iowa Code 8.30 8.54. Specific powers include the ability to reorganize state services to bring about increased economy and efficient in the conduct of the affairs of government, Iowa Code section 8.35; make intradepartmental transfers of unexpended appropriations for any purpose within the scope of the such department, Iowa Code section 8.39(1); make interdepartmental transfers of appropriations, Iowa Code section 8.39 (2); and order a uniform and prorate reduction of all appropriations in the event resources are insufficient to pay all appropriations, Iowa Code section 8.31. Plaintiffs cite no case law or other binding precedent for their extraordinary and novel suit. Instead, Plaintiffs rely upon a regurgitation of unsubstantiated facts to show the likelihood of success on their unsupported, unarticulated claim. See Kleman, 373 5
N.W.2d at 95 (noting that even though the rules of evidence are relaxed, this relaxation does not permit a court to issue a temporary injunction solely on the basis of the allegations contained in an unverified petition ). Not only is this demonstration wholly insufficient to support grant of a temporary injunction, as demonstrated extensively in Defendants Motion to Dismiss and Supporting Brief, it is insufficient to sustain their suit at all. See IES Utils. Inc. v. Iowa Dep t of Revenue and Fin., 545 N.W.2d 536, 541 (Iowa 1996) (summarily dismissing review of denial of temporary injunction where the underlying claim was properly dismissed). III. PLAINTIFFS HAVE NO PROOF OF ANY HARM, MUCH LESS IRREPARABLE HARM. Plaintiffs cite three injuries necessitating a stay (1) the amorphous injury which occurs whenever a law is not faithfully executed, (2) the potential injury to the juveniles formerly placed at the Iowa Juvenile Home, and (3) the potential injury to the employees of the Iowa Juvenile Home, and the Toledo community, as a result of staff layoffs. Most notably, none of these injuries are to the Plaintiffs themselves, which reinforces why the Plaintiffs have no standing to bring this action. The first injury the vaguely stated injury that occurs whenever a law is not faithfully executed is the same injury suffered by society at large and thus is not unique to the Plaintiffs. This injury is moreover is not sufficient ground for a temporary injunction. If it was, an injunction would issue in every action or in every action where a constitutional violation was alleged. Plaintiffs have cited no authority for this proposition. Plaintiffs do not even allege let alone offer evidence of a particularized, irreparable injury to themselves should the temporary injunction not be granted. 6
Plaintiffs assert that by closing the Toledo Iowa Juvenile Home, the youth it serves will suffer from irreparable harm. Not only is this claim wholly unsubstantiated, it is beyond the jurisdiction of this court to address. First, Plaintiffs have no standing to assert claims on behalf of other individuals with whom they have no legal relationship. Second, exclusive jurisdiction over children who are alleged to be either delinquent or children in need of assistance lies with the juvenile court. Iowa Code 232.8, 232.61. Only the juvenile court has jurisdiction to adjudicate a child as having committed a delinquent act or as being a child in need of assistance, Iowa Code section 232.47(2), 232.96; determine the least restrictive disposition appropriate for adjudicated delinquents or children in need of assistance, Iowa Code sections 232.52(1), 232.99; order placement at the Iowa Juvenile Home, Iowa Code sections 232.52(2)(e), 232.102(3); and modify or vacate a dispositional order, Iowa Code sections 232.54, 232.103. All of the children that Plaintiffs purport to be irreparably injured are under the jurisdiction of the juvenile court. The juvenile court is responsible for determining what is in the best interests of the children and only the juvenile court can make adjudicatory and placement decisions with respect to the children. The Plaintiffs are asking that this Court interfere with decisions made by juvenile courts based upon vague and unsubstantiated allegations. This Court has no authority to do so. Although the closure of the Iowa Juvenile Home will impact the Iowa Juvenile Home employees, at least temporarily, Plaintiffs have no standing to assert irreparable harm on behalf of the employees again a group of people with whom they have no legal relationship. Even if there was standing, the Plaintiffs have wholly failed to offer any 7
type of proof of irreparable harm. There are no facts alleged and no affidavits identifying specific harms. Plaintiffs are requesting that the Court exercise one of its most extraordinary powers but have failed to comply with the basic statutory requirement of providing affidavits, have failed to offer any legal authority in support of their legal theories and have failed to articulate any irreparable harm to themselves. They are asking the Court to order state officials to reopen a state facility, at great expense to the taxpayers, even though there are no children placed there by the juvenile court. The Supreme Court has cautioned against the issuance of a temporary injunction against public officers when the right to an injunction is doubtful or is based on facts determinable only by trial. Hoegh, 61 N.W.2d at 715. Plaintiffs have provided neither law nor fact that would support the issuance of a temporary injunction. CONCLUSION Grant of a temporary injunction is an extraordinary, equitable remedy. Plaintiffs simply have not shown or even alleged that principles of equity and fairness warrant grant of a temporary injunction. The State respectfully requests that Plaintiffs Petition for Preliminary Injunction be denied. Respectfully submitted, THOMAS J. MILLER ATTORNEY GENERAL OF IOWA /s/ Jeffrey S. Thompson JEFFREY S. THOMPSON Solicitor General of Iowa 8
/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. 1305 East Walnut Street Des Moines, Iowa 50319 Phone: (515) 281-6858 Fax: (515) 281-7551 Email: Jeffrey.Thompson@iowa.gov Email: tvavric@dhs.state.ia.us Email: Meghan.Gavin@iowa.gov 9