BRENT REGAN, a qualified elector of the State of Idaho, Petitioner,
LAWERENCE DENNEY, Secretary of State of the State of Idaho, in his official capacity, Respondent. DELEENA FOSTER, an individual, PAMELA BLESSINGER, an individual, BRUCE BELZER, MD, an individual, and the IDAHO MEDICAL ASSOCIATION, INC., an Idaho non-profit corporation, Intervenors-Respondents.
for review dismissed and request for writ of mandamus denied.
D. Smith, Idaho Falls, argued for petitioner.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
petitioner. Brian P. Kane argued.
Pursley, Boise, for Intervenors. Kenneth R. McClure argued.
BURDICK, CHIEF JUSTICE.
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 Regan's petition and deny
his request for a writ of mandamus.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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, 145 Idaho 530, 533-34, 181 P.3d 456, 459-60
(2008) (quoting Cleary v. Waldman, 167 F.3d 801, 805
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, 181 P.3d at 460 (citation and quotation
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, 567 U.S. 519, 576 (2012) (emphasis in
original). This would have significantly changed Medicaid, as
the existing "Medicaid program offer[ed] federal funding
to States to assist pregnant women, children, needy families,
the blind, the elderly, and the disabled in obtaining medical
care." Id. at 519 (citing 42 U.S.C. §
1396d(a)). Idaho joined with twenty-five other states to
challenge the mandatory provision. Id. at 520. In
its Sebelius decision, the U.S. Supreme Court held
that the provision in the ACA that required states to expand
Medicaid was unconstitutional, but held that states could
voluntarily expand Medicaid. Id. at 587. The ACA
also created a system of insurance subsidies for individuals
with household incomes of 100 percent to 400 percent of the
federal poverty line, which was not affected by the
Court's decision in Sebelius. Thus, after the
U.S. Supreme Court's ruling in Sebelius struck
down the mandatory Medicaid expansion in the ACA, there
existed a "Medicaid gap" for people who did not
qualify for existing Medicaid, but also did not have an
income of at least 100% of the federal poverty level so as to
qualify for insurance subsidies. People in the
"gap" were left with no affordable healthcare
2, now Idaho Code section 56-267, expands Medicaid
eligibility in Idaho to cover Idaho citizens who fall in the
"Medicaid gap" by expanding coverage in Idaho to
citizens who are under 65 years of age, whose modified
adjusted gross income is 133% of the federal poverty level or
below, and who are not otherwise eligible for Medicaid
coverage under the existing state plan. Section 56-267
directs the Department of Health and Welfare (the Department)
to submit the necessary amendments to the state Medicaid plan
to the United States Department of Health and Human Services,
Centers for Medicare and Medicaid Services. I.C. §
56-267. Section 56-267 directs the Department to do this
within 90 days after approval of the act. Id.
November 21, 2018, after section 56-267 had become law,
Petitioner Brent Regan filed a "Petition for
Review" with this Court, seeking a declaration that
section 56-267 is unconstitutional. Regan contends section
56-267 is unconstitutional because it delegates future
lawmaking authority to the federal government. Regan's
argument is centered on the portion of section 56-267 which
extends Medicaid coverage "in accordance with sections
1902(a)(10)(A)(i)(VIII) and 1902(e)(14) of the Social
Security Act." Regan contends that the federal
government could change provisions in those sections of the
Social Security Act, and that Idaho would be bound by such
changes. Thus, Regan contends section 56-267
unconstitutionally delegates future lawmaking authority to
the federal government.
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.
Leavitt v. Craven, 154 Idaho 661, 665, 302 P.3d 1, 5
'constitutional questions and questions of statutory
interpretation are questions of law,' this Court
exercises free review over both." Id. (quoting
Stuart v. State, 149 Idaho 35, 40, 232 P.3d 813, 818
(2010)). In cases challenging the constitutionality of a
"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."
Id. (quoting Stuart, 149 Idaho at 40, 232
P.3d at 818).
Notwithstanding notable procedural deficiencies, this Court
will consider Regan's petition.
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 56-267 from the Idaho Code. Denney maintains that
this Court lacks jurisdiction to consider the petition, and
contends Idaho Code section 34-1809(4) cannot expand the
Court's original jurisdiction set by the Constitution.
Intervenors contend Regan lacks standing to bring his
controversy before this Court. For reasons to be discussed,
we will exercise our original jurisdiction under Article V,
section 9 of the Idaho Constitution.
Idaho Code section 34-1809(4) is unconstitutional and
cannot create original jurisdiction in this Court.
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, 117 Idaho 660, 663, 791 P.2d 410, 413 (1990)
(citing Idaho Const. art. II, § 1). As this Court has
said, "[t]he jurisdiction of this court is fixed by the
Constitution and cannot be broadened or extended by the
Legislature." Neil v. Pub. Utilities Comm'n of
Idaho, 32 Idaho 44, 52, 178 P. 271, 273 (1919).
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 "Idaho Code § 34-1809 cannot compel the Court
to decide a case that lacks a judiciable controversy"
137 Idaho 798, 803, 53 P.3d 1217, 1222 (2002) Justice
Kidwell, concurring in the majority opinion, stated he would
find section 34-1809(4) unconstitutional because it violates
the separation of powers doctrine embodied in the Idaho
Constitution. Id. He noted that the Legislature in
passing the statute was attempting to instruct this Court to
hear cases that were otherwise not justiciable. Id.
at 804, 53 P.3d at 1223. We find Justice Kidwell's
reasoning persuasive as to the issue before us.
on the above, we hold that Idaho Code section 34-1809(4) is
unconstitutional, as it constitutes an attempt by the
Legislature to broaden this Court's jurisdiction in
contravention of the separation of powers doctrine in the
Idaho Constitution. Idaho Const. art. II, § 1;
Mead, 117 Idaho at 663, 791 P.2d at 413.
Accordingly, section 34-1809(4) does not create jurisdiction
for this Court to hear Regan's petition.
This Court will exercise original jurisdiction under
Article V, section 9 of the Idaho Constitution.
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." Idaho Const. art. V, § 9.
We have recognized that "this Court may 'exercise
jurisdiction to review a petition for extraordinary relief
where the petition alleges sufficient facts concerning a
possible constitutional violation of an urgent
nature.'" Coeur D'Alene Tribe v.
Denney, 161 Idaho 508, 513-14, 387 P.3d 761, 766-67
(2015) (quoting Idaho Watersheds Project v. State Bd. of
Land Comm'rs, 133 Idaho 55, 57, 982 P.2d 358, 360
(1999)) (granting a writ of prohibition for a House Joint
Resolution that proposed to amend the Idaho Constitution);
see also Keenan v. Price, 68 Idaho 423, 429, 195
P.2d 662, 664 (1948) (accepting jurisdiction because of the
"importance of the question presented" and the
"urgent necessity for immediate determination").
Moreover, "this Court has repeatedly held that mandamus
is not a writ of right and the allowance or refusal to issue
a writ of mandate is discretionary." Coeur
D'Alene Tribe, 161 Idaho at 512, 387 P.3d at 765.
Thus, we recognize the discretionary nature of this exercise;
it is not a prerogative that we exercise lightly, but one we
reserve the right to exercise on a case by case basis when
compelled by urgent necessity.
Regan alleges a constitutional violation, contending section
56-267 violates Article III, section 1 of the Idaho
Constitution. Regan's challenge is of an urgent nature
due to the 90-day time requirement in section 56-267 during
which the Department must submit the necessary state plan
amendments to the Center for Medicare and Medicaid Services.
Additionally, we recognize the need for a determination of
the constitutionality of section 56-267 during the 2019
legislative session given the fast-approaching 90-day window
for the Department to submit any necessary plan amendments,
and the Legislature's need to consider funding for
Medicaid expansion. Accordingly, due to the urgency of the
alleged constitutional violation and the urgent need for an
immediate determination, we will exercise our original
jurisdiction over Regan's petition.
While Regan cannot satisfy traditional standing
requirements, we will relax the ordinary standing
requirements and exercise jurisdiction over Regan's
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." Coeur
D'Alene Tribe, 161 Idaho at 513, 387 P.3d at 766
(quoting State v. Philip Morris, Inc., 158 Idaho
874, 881, 354 P.3d 187, 194 (2015)). "[T]he origin of
Idaho's standing is a self-imposed constraint adopted
from federal practice, as there is no 'case or
controversy' clause or an analogous provision in the
Idaho Constitution as there is in the United States
Constitution." Id. (citing U.S. Const. art.
III. § 2, cl. 1). "In order to satisfy the
requirement of standing, a party must allege or demonstrate
an injury in fact and a substantial likelihood that the
judicial relief requested will prevent or redress the claimed
injury." Gibbons v. Cenarrusa, 140 Idaho 316,
318, 92 P.3d 1063, 1065 (2002) (citation and quotation marks
omitted). However, generally, "a citizen and taxpayer
may not challenge a governmental enactment where the injury
is one suffered alike by all citizens and taxpayers of the
jurisdiction." Noh, 137 Idaho at 800, 53 P.3d
at 1219 (quoting Miles v. Idaho Power Co., 116 Idaho
635, 641, 778 P.2d 757, 763 (1989)).
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." 161 Idaho
at 513, 387 P.3d at 766; see also Keenan, 68 Idaho
at 429, 195 P.2d at 664 (this Court accepted jurisdiction
"because of the importance of the questions presented
and the urgent necessity for immediate determination.").
This Court also recognized the "willingness to relax
ordinary standing requirements . . . where: (1) the matter
concerns a significant and distinct constitutional violation,
and (2) no party could otherwise have standing to bring a
claim." Coeur D'Alene Tribe, 161 Idaho at
514, 387 P.3d at 767 (citing Koch v. Canyon Cty.,
145 Idaho 158, 162, 177 P.3d 372, 376 (2008)). We have stated
that allegations "concern a significant and distinct
constitutional violation" when a petitioner alleged
violations in enacting laws and exercising veto power.
concedes he cannot satisfy the traditional standing
requirements, but contends he has standing under Idaho Code
section 34-1809(4). As determined above, section 34-1809(4)
is unconstitutional and therefore cannot confer standing to
Regan. However, even though Regan cannot demonstrate a
distinct palpable injury sufficient to confer standing, due
to the urgent nature of the alleged constitutional
violations, we will relax the traditional standing
requirements and consider Regan's petition. In so doing,
we note the need for resolution of the constitutionality of
this issue due to the 90-day ...