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Regan v. Denney

Supreme Court of Idaho

February 5, 2019

BRENT REGAN, a qualified elector of the State of Idaho, Petitioner,
v.
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.

         Original Filing.

         Petition for review dismissed and request for writ of mandamus denied.

          Bryan D. Smith, Idaho Falls, argued for petitioner.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for petitioner. Brian P. Kane argued.

          Givens Pursley, Boise, for Intervenors. Kenneth R. McClure argued.

          BURDICK, CHIEF JUSTICE.

         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 Regan's petition and deny his request for a writ of mandamus.

         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, 145 Idaho 530, 533-34, 181 P.3d 456, 459-60 (2008) (quoting Cleary v. Waldman, 167 F.3d 801, 805 (3rd Cir.1999)).

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 marks omitted).

         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, 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 options.

         Proposition 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.

         On 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.

         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, 154 Idaho 661, 665, 302 P.3d 1, 5 (2012).

         "Because '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 statute:

"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).

         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 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.

         1. Idaho Code section 34-1809(4) is unconstitutional and cannot create original jurisdiction in this Court.

         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, 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).

         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 "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.

         Based 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.

         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." 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.

         Here, 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.

         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." 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)).

         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." 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. Id.

         Regan 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 ...


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