Regan v. DenneyRegan v. Denney
Lead Opinion
Petitioner Brent Regan asserts that Idaho Code section 56-267, a statute enacted pursuant to the initiative power retained by the people of Idaho in Article III, section 1 of the Idaho Constitution, violates Idaho's Constitution by delegating future lawmaking authority regarding Medicaid expansion to the federal government. Regan requests that this Court declare section 56-267 unconstitutional and also requests that this Court issue a writ of mandamus directing the Secretary of State Lawerence Denney to remove section 56-267 from the Idaho Code. We dismiss
I. FACTUAL AND PROCEDURAL BACKGROUND
In the November 6, 2018 election, the Idaho electorate passed a ballot initiative, known as Proposition 2, to expand Medicaid eligibility in Idaho. On November 20, 2018, the Acting Governor issued a proclamation that Proposition 2 had passed, and subsequently the Idaho Code was amended to add section 56-267 which reads as follows:
56-267. MEDICAID ELIGIBILITY EXPANSION. (1) Notwithstanding any provision of law or federal waiver to the contrary, the state shall amend its state plan to expand Medicaid eligibility to include those persons under sixty-five (65) years of age whose modified adjusted gross income is one hundred thirty-three percent (133%) of the federal poverty level or below and who are not otherwise eligible for any other coverage under the state plan, in accordance with sections 1902(a)(10)(A)(i)(VIII) and 1902(e)(14) of the Social Security Act.
(2) No later than 90 days after approval of this act, the department shall submit any necessary state plan amendments to the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services to implement the provisions of this section. The department is required and authorized to take all actions necessary to implement the provisions of this section as soon as practicable.
A brief discussion of Medicaid history is helpful to understanding the genesis of Proposition 2. The Medicaid program was established in 1965 to provide medical care to indigent people as well as people " 'whose income and resources are insufficient to meet the costs of necessary medical services' including nursing home care." Stafford v. Idaho Dep't of Health & Welfare ,
The Medicaid program is administered by the states on a matching-fund basis, with the lion's share of support coming from the federal government. The states do not get the matching funds without strings. As one might suspect, the states must meet certain requirements in order to obtain the federal funds. Medicaid is a cooperative federal-state venture through with [sic] the states operate programs of their own design. These programs must, however, be consistent with federal standards and regulations.
Id. at 534,
When the Patient Protection and Affordable Care Act (ACA) was enacted by Congress in 2010, it contained a requirement that, in order to keep existing Medicaid funding, states had to expand Medicaid "to cover all individuals under the age of 65 with incomes below 133 percent of the federal poverty line." Nat'l Fed'n of Indep. Bus. v. Sebelius ,
On November 21, 2018, after
II. STANDARD OF REVIEW
The Idaho Constitution and Idaho Code grant this Court original jurisdiction to issue writs of mandamus.Idaho Const. art. V, § 9 ;I.C. § 1-203 . Under the Idaho Appellate Rules, "[a]ny person may apply to the Supreme Court for the issuance of any extraordinary writ or other proceeding over which the Supreme Court has original jurisdiction." I.A.R. 5(a). Such writs "may be issued ... to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and the enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person."I.C. § 7-302 .
Leavitt v. Craven ,
"Because 'constitutional questions and questions of statutory interpretation are questions of law,' this Court exercises free review over both."
"There is a presumption in favor of the constitutionality of the challenged statute or regulation, and the burden of establishing that the statute or regulation is unconstitutional rests upon the challengers. An appellate court is obligated to seek an interpretation of a statute that upholds it [sic] constitutionality. The judicial power to declare legislative action unconstitutional should be exercised only in clear cases."
III. ANALYSIS
A. Notwithstanding notable procedural deficiencies, this Court will consider Regan's petition.
Regan contends that this Court "is the proper forum for review" based on Idaho Code section 34-1809(4). Regan also argues this Court has jurisdiction over the matter because Regan is seeking an order to have Denney remove
Section 34-1809(4) provides that, "[a]ny qualified elector of the state of Idaho may, at any time after the attorney general has issued a certificate of review, bring an action in the [S]upreme [C]ourt to determine the constitutionality of any initiative." However, section 34-1809(4) unconstitutionally attempts to broaden this Court's jurisdiction. "The principle that neither the legislature nor the executive can in any way regulate or alter the Supreme Court's jurisdiction is basic to the doctrine of separation of powers." Mead v. Arnell ,
This Court has already determined that section 34-1809(4) cannot expand its jurisdiction in a 2003 Order regarding a petition to determine the constitutionality of Idaho Code sections 67-429B and 67-429C, enacted in Proposition 1, the Indian Gaming Initiative. In the 2003 Order, this Court determined section 34-1809(4) did not confer original jurisdiction to this Court, stating that the legislature had no power to extend this Court's original jurisdiction. The petitioners in that case cited to Article III, Section 1 of the Idaho Constitution contending that provision "authorizes the legislature to grant original jurisdiction to this Court in matters regarding initiatives." This Court rejected that argument and determined section 34-1809(4) did not confer original jurisdiction for the Court to decide the petition. Similarly, in Noh v. Cenarrusa , this Court stated that "
Based on the above, we hold that Idaho Code
2. This Court will exercise original jurisdiction under Article V, section 9 of the Idaho Constitution.
This Court has "original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction."
3. While Regan cannot satisfy traditional standing requirements, we will relax the ordinary standing requirements and exercise jurisdiction over Regan's petition.
Even with the Court assuming jurisdiction to consider Regan's claims, he must still establish standing to pursue those claims. As we have said, "[c]oncepts of justiciability, including standing, identify appropriate or suitable occasions for adjudication by a court." CoeurD'Alene Tribe ,
However, in certain cases we will relax traditional standing requirements. In Coeur D'Alene Tribe , we relaxed the traditional standing requirements "where the petition allege[d] sufficient facts concerning a possible constitutional violation of an urgent nature."
Regan concedes he cannot satisfy the traditional standing requirements, but contends he has standing under Idaho Code
B. Idaho Code
Regan contends that
"A party arguing that a statute is unconstitutional has the 'burden of showing its invalidity and must overcome a strong presumption of validity.' " State v. Prather ,
Article 3, section 1 of the Idaho Constitution provides that, "[t]he legislative power of the state shall be vested in a senate and house of representatives."
This Court has previously addressed the situation present here; that is, the effect of a statute referencing or incorporating another statute. In Nampa & Meridian Irrigation District v. Barker ,
This Court explained there are two alternative approaches when a statute adopts or references another statute. First, this Court stated:
Where one statute adopts the particular provisions of another by a specific and descriptive reference to the statute or provisions adopted, the effect is the same as though the statute or provisions adopted had been incorporated bodily into the adopting statute. When so adopted, only such portion is in force as relates to the particular subject of the adopting act, and as is applicable and appropriate thereto. Such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications of the statute so taken unless it does so by express intent.
Similarly, this Court in Brannon v. City of Coeur d'Alene dealt with a situation where a statute referenced a second statute that was later repealed.
Where a reference statute incorporates the terms of one statute into the provisions of another act, the two statutes coexist as separate distinct legislative enactments, each having its appointed sphere of action. ... Accordingly, [a]s neither statute depends upon the other's enactment for its existence, the repeal of the provision in one enactment does not affect its operation in the other statute.
Id. at 850,
In this case,
Despite Barker and Brannon , Regan relies heavily on Idaho Savings & Loan Association v. Roden ,
required [Idaho savings and loan associations] to abide by and conform with rules and regulations of the Federal Home Loan Bank Board adopted after enactment of the Idaho legislation, and to abide by and conform with any amendment to Title 4 of the Housing Act relating to insurance of accounts which may become effective after the date of the Idaho act.
This Court stated "the question to be resolved is whether or not the Legislature of the State of Idaho, contrary to the
[u]nder the decision of the trial court, the plaintiff is not required to observe future rules and regulations of the Board nor future amendments of the National Housing Act. But an agreement to observe and be bound by future amendments to the National Housing Act and future rules and regulations of the Board is exacted as a condition to granting the insurance, and also to continuing it in force. Hence, appellant can neither obtain the insurance nor continue it in force without being compelled to abide by the unconstitutional provisions of the Idaho act. Thus, it is demonstrated that the unconstitutional provisions delegating to the Congress and the Home Loan Bank Board the legislative power and function to make future laws and regulations governing appellant's business and its right to remain in business, are not severable from the provisions requiring appellant to obtain insurance of accounts by the Federal Savings and Loan Insurance Corporation. The provisions requiring such insurance are therefore unconstitutional and void.
In this case, contrary to Regan's assertion, a comparison cannot be drawn from Roden , as
Regan argues that because
Moreover, to the extent the holding of Roden could have suggested it was an unconstitutional delegation of lawmaking authority when a statute references federal law, that holding was called into doubt in State v. Kellogg ,
The lower court held the statute was an unconstitutional delegation of legislative authority.
It should be noted that
The state board of education is hereby designated as the state board for career technical education for the purpose of carrying into effect the provisions of the federal act known as the Smith-Hughes act, amendments thereto , and any subsequent acts now or in the future enacted by the congress affecting vocational education, ....
(emphases added); see also Idaho Code section 33-2902 ("the assent of the legislature of the state of Idaho is hereby given to [the Hatch act] ... and the acts amendatory thereof and supplementary thereto."); Idaho Code section 74-104(1) ("The following records are exempt from disclosure: ... any public record exempt from disclosure by federal or state law or federal regulations ...."). In fact, Idaho's existing Medicaid statute, even prior to expansion, incorporates federal law to determine eligibility. See
Regan also argues that
Regan next argues that the federal government currently pays 90% of the costs associated with the expansion of Idaho Medicaid, but that the federal government could lower the amount of the federal contribution in the future. Regan provides almost no citation or authority for this argument, and instead focuses on the "sunset clause" that was in an earlier draft of
Idaho's ongoing participation in Medicaid, even prior to expansion, requires a yearly appropriation of funds from the legislature. As provided in Article VII, Section 13 of the Idaho Constitution, "[n]o money shall be drawn from the treasury, but in pursuance of appropriations made by law." Each year, the legislature appropriates funding for Medicaid, which is passed by the House and Senate, and signed by the Governor. See H.B. 695 (2018); S.B. 1376 (2018). Thus, the Idaho legislature will control the ongoing nature of Medicaid through its annual appropriation of funds. Additionally, as the United States Supreme Court has said, "[t]hough Congress' power to legislate under the spending power is broad, it does not include surprising participating States with post-acceptance or 'retroactive' conditions."
Lastly, Regan contends that if
In sum, once a ballot initiative is passed and is law, it is treated the same as if the legislature had passed it. Gibbons ,
C. We do not award attorney fees on appeal.
Based on the above, Regan is not the prevailing party. The Intervenors do not request attorney fees. Denney requests attorney fees pursuant to Idaho Code section 12-121 and contends Regan's petition was frivolous, unreasonable, or without foundation. We decline to award attorney fees on appeal.
Pursuant to section 12-121, this Court, in any civil action, may award reasonable attorney fees to the prevailing party.
In this case, though we have determined
IV. CONCLUSION
Justice BEVAN concurs.
Notes
Though Regan contended at oral argument that he was ambushed when Denney filed supplemental authority that included Barker and Brannon , the supplemental authority was validly filed pursuant to Idaho Appellate Rule 34(f)(1) and Regan received notice of the filing.
Concurrence Opinion
I concur in Chief Justice Burdick's decision in its entirety. I write separately to address
Justice Brody would take "an early off-ramp" from deciding whether Idaho Code
In Nez Perce Tribe v. Cenarrusa ,
Article 5 § 9 of the Idaho Constitution grants this Court "original jurisdiction to issue writs of mandamus, certiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction." We will accept jurisdiction to review a petition for extraordinary relief where the petition alleges sufficient facts concerning possible constitutional violations. See Sweeney v. Otter ,, 138, 119 Idaho 135 , 311 (1990). Furthermore, in certain circumstances this Court will exercise its original jurisdiction to rule on the constitutionality of a statute. See Mead v. Arnell , 804 P.2d 308 , 117 Idaho 660 (1990) ; see also Evans v. Andrus , 791 P.2d 410 , 124 Idaho 6 (1993). 855 P.2d 467
Although we question the propriety of a writ of mandamus directed at the Secretary of State to invalidate a constitutional amendment, we, nevertheless, exercise our original jurisdiction because the amended petition of the Nez Perce alleges sufficient facts concerning possible constitutional violations. See Sweeney v. Otter ,, 119 Idaho at 138. 804 P.2d at 311
Nez Perce Tribe ,
I am unable to distinguish the facts in this case from Nez Perce Tribe . I also think it noteworthy that in Nez Perce Tribe , the relief sought, a writ of mandamus, and the office-holder against whom the writ was sought, the Secretary of State, are the same as in this case. We found jurisdiction to address the merits in Nez Perce Tribe . We do so here for the same reasons.
Justice Moeller writes: "[s]imply put, I do not believe that Regan's petition presents an urgent constitutional issue sufficient to overcome its jurisdictional deficiencies[.]" As near as I can tell, there are tens of thousands of Idahoans who fall within the Medicaid "gap"-those who make too much to qualify for Medicaid benefits, but do not make enough to be eligible to take advantage of subsidized health insurance. This gap population finds itself without access to health care.
In Sweeney v. Otter ,
Justice Moeller's dissent also fails to consider the fast-approaching 90-day window for the Department to submit any necessary plan amendments. This Court has previously held that review was urgent due to a deadline imposed on the Secretary of State. Van Valkenburgh v. Citizens for Term Limits ,
Justice Moeller also describes this as a political question that would best be avoided. I return to Sweeney and ask the rhetorical question: how is the determination of who will chair the Idaho Senate's germane committees anything other than a political question? I think the issue presented in this case is much less a political question than that presented in Sweeney .
In sum, rather than taking the quick off-ramp and letting this case languish through the trial court, only to work its way back to this Court, I opt to address the question head-on. The constitutionality of Idaho Code
Concurrence in Part
I write briefly to note my concurrence with the majority in its decision that Idaho Code
I. JURISDICTION
Simply put, I do not believe that Regan's petition presents an urgent constitutional issue sufficient to overcome its jurisdictional deficiencies-many of which are noted in the majority's decision. In Sweeney v. Otter ,
This case is distinguishable from Sweeney . Notwithstanding the majority's belief that there is an urgency to this matter based on the nature of the constitutional challenge, any urgency or uncertainty in this case is mainly the result of Regan's own actions in filing his petition. For example, the majority correctly recognizes that other provisions of Idaho's Medicaid law contain references to federal law similar to the portions of Idaho Code
II. JUSTICIABILITY
In addition, Regan's petition suffers from serious justiciability defects. The law in Idaho is clear that "[a] prerequisite to a declaratory judgment action is an actual or justiciable controversy. Justiciability is generally divided into subcategories-advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions, and administrative questions." Miles v. Idaho Power Co .,
What this case actually presents to the Court is not an urgent constitutional issue, but a political question. This became readily apparent at oral argument, when counsel for Regan, in urging the Court to strike down the new law, argued that what the Supreme Court is really being asked to do is to decide whether this state will "act or be acted upon" when it comes to its relationship with the federal government. Counsel began his presentation with this phrase, and later repeated it when asked by the Chief Justice whether the state could simply "opt out" of Medicaid expansion if the federal government changed the current standards. Such arguments are largely ideological and dogmatic in nature-not legal-and demonstrate that the intent behind the petition is to have this Court redefine the proper role of federalism in Idaho. In sum, this Court is not really being asked to address an urgent constitutional issue created by the passage of
This Court is not the proper forum for such a debate-this is a choice for the people and their elected representatives in the legislature. The question this Court is being asked to answer goes far beyond the actual language in
For these same reasons, it appears that this matter was brought prematurely. Notwithstanding the adoption of
III. CONCLUSION
The people have spoken by passing Proposition Two; now it is in the hands of the legislature. Therefore, under our constitutional form of government, it is up to the legislative branch to act next-not the judicial branch. Principles of judicial restraint and separation of powers should constrain us from taking sides in this debate until such time as an urgent constitutional issue or justiciable controversy actually arises. Therefore, I respectfully dissent from the majority's decision to address the merits of this case and would dismiss the petition on procedural grounds.
Interestingly, just three years later, the Court appeared to lower the Sweeney standard by ignoring the urgency requirement: "We will accept jurisdiction to review a petition for extraordinary relief where the petition alleges sufficient facts concerning possible constitutional violations ." Nez Perce Tribe v. Cenarrusa ,
For example, although voters in the State of Utah recently passed a similar Medicaid expansion initiative, its legislature is currently debating whether to limit the expansion.
Concurrence in Part
The Court acknowledges in the opening of its analysis that there are notable procedural deficiencies with Regan's petition. For me, the procedural deficiencies are insurmountable hurdles that we should not overlook. To be clear, I have concluded that Regan's petition should be dismissed and no relief should be granted by the Court. The Court's decision today, however, goes beyond a dismissal, and instead declares
The issue of how this Court interprets legislation incorporating federal law is complex and has far reaching implications. Today the Court takes on that complex issue in a case where the Idaho Department of Health and Welfare-the state agency charged with implementing that legislation-has not had an opportunity to be heard because it is not a party. Today, the Court takes on that issue in a case that has not been tested and sharpened through the adversarial system in the district court. Our Constitution purposefully limits this Court's original jurisdiction, recognizing that this institution speaks most clearly when issues and records are fully developed and all of the necessary parties have been named and joined. The Court's limited original jurisdiction does not include the authority to issue declaratory judgments which are not necessary to decide the question of whether an extraordinary writ should issue.
To unpack my view of this case it is necessary to start with what Regan is asking this Court to do in his prayer for relief. Regan's prayer is plain and simple, as it should be:
(1) A declaration from this Court that Proposition #2 is unconstitutional and unenforceable;
(2) This Court should further order that Chapter 2, Title 56, Idaho Code, should not be revised by the Idaho Secretary of State to include the amending language of Proposition #2 as the law of this state, nor should Proposition #2 be in any way enforced or enforceable; or
(3) Alternatively, if the Secretary of State has already revised Chapter 2, Title 56, Idaho Code, to include the amending language of Proposition #2 by the time this Court determines that Proposition #2 is unconstitutional, this Court should order the Secretary of State to again revise Chapter 2, Title 56, Idaho Code, to remove the amending language of Proposition #2.
Regan thought the key to obtaining his requested relief was Idaho Code
When initially reviewing Regan's petition, the Court-based on traditional notions of fair play and due process-did as it always does when construing pleadings; it liberally construed Regan's prayer for relief and concluded that it could be fairly read as setting forth a request for the issuance of a writ of mandate or prohibition. The Court directed Regan to file a brief in support of his position in accordance with Rule 5 of the Appellate Rules of Procedure which governs actions for extraordinary writs.
Regan complied with the Court's order. Regan made it clear in his opening brief that his petition should not be construed as a request for a writ and that he was seeking declaratory relief under
Accordingly, Petitioner requests that the Court followsSection 34-1809(4) and have the entire Court determine the constitutionality of Idaho CodeSection 56-267 rather than follow the procedure in Idaho Appellate Rule 5(d).
For me, Regan's position eliminated any concern I had about how to read his petition, and I would simply dismiss his petition for lack of jurisdiction based on the Court's determination that
While I would choose to take an early off-ramp to dismiss Regan's petition, the Court continues on with the matter by next addressing the merits of Regan's claim that
There is no legal basis upon which to issue a writ of mandamus. Idaho Code
[M]andamus will lie if the officer against whom the writ is brought has a "clear legal duty " to perform the desired act, and if the act sought to be compelled is ministerial or executive in nature. If the act sought to be compelled of the public officer is ministerial, the Court must find the party seeking the writ has a clear legal right to have the act performed.
In this case, a writ of mandamus could not be issued because Denney does not have a "clear legal duty" to remove an unconstitutional statute from the Idaho Code. In Coeur D'Alene Tribe , this Court determined Denney had a clear legal duty, pursuant to section 67-505, to certify a bill as law when the Governor did not timely veto a bill.
The constitutionality of
Similarly, in Keenan , the petitioner sought a writ of mandate to compel the Secretary of State to accept and file his petition for candidacy and certify his name to the county auditors as a candidate for governor for the upcoming election.
In this case, the constitutionality of