William Petroski

bpetrosk@dmreg.com

The Iowa Supreme Court was asked Wednesday to decide if Gov. Terry Branstad violated state law last year by using his line-item veto authority to close two state mental health institutes.

"We feel the governor did not exercise his veto correctly," plaintiffs' attorney Mark Hedberg told the justices. He noted that existing Iowa law requires the operation of mental health facilities in Mount Pleasant and Clarinda, and argued Branstad should have asked the Iowa Legislature to modify the statute.

Iowa Solicitor General Jeffrey Thompson, defending Branstad, pointed to a section of the Iowa Constitution that states the governor may disapprove any item of an appropriations bill.

Asked by Justice David Wiggins if the governor is required to faithfully execute laws approved by the Legislature, Thompson responded, "He also has a responsibility to faithfully execute his budgeting responsibilities."

The dispute dates to July 2015, when the Republican governor vetoed a bipartisan compromise plan that would have reversed his closure of the mental institution at Mount Pleasant and would have temporarily kept open a similar facility at Clarinda.

Twenty-five state legislators and the American Federation of State, County and Municipal Employees sued Branstad. They contended his veto of more than $6 million in spending broke a law requiring the state to operate four mental hospitals, including the two that he closed. They have asked the high court to overturn a Polk County District Court ruling last November by Polk County District Judge Douglas Staskal, who sided with Branstad. The Supreme Court did not issue a ruling Wednesday and the justices didn't say when the case will be decided.

Staskal ruled that Branstad’s authority to veto spending measures supersedes a state code section referring to the operation of four mental hospitals. “The governor’s item-veto authority is of constitutional magnitude. … It is elementary that, to the extent there is conflict between a constitutional provision and a statute, the constitution prevails,” Staskal wrote.

The plaintiffs acknowledged Branstad has broad veto authority, but they argued that in this instance, the governor’s veto violated an established section of state law. The Iowa attorney general’s office, representing Branstad, has countered that the spending bill clearly was the kind of measure that Branstad has the constitutional power to veto.

Plaintiffs' attorney Nate Boulton told the justices Wednesday that the legal issues raised in the case are "extremely important" going forward. He suggested that Branstad deliberately waited until the Legislature left town before issuing the veto.

“We believe that this statute meant something and that the appropriation meant something," Boulton said.

Thompson said the factual record shows a change in priorities for mental health services. Iowans are still receiving mental health services, but are now being served in their community programs instead of institutions because it is a better way to provide services, he said.

In arguing in support of the closures, Branstad has repeatedly said publicly that the Clarinda and Mount Pleasant mental hospitals were outdated and inefficient, and that most of their services could be better provided by private agencies. Critics have disagreed, and they say he moved too quickly to shutter the state facilities before arranging sufficient replacement services for Iowans with severe mental illnesses.

The Iowa Department of Human Services still operates mental health institutes in Cherokee in northwest Iowa and in Independence in northeast Iowa. It's not clear what would happen if AFSCME and the Democratic legislators win the case because the two mental hospitals have been closed, their patients have been transferred and their workers have been laid off. However, state prisons remain operational on the grounds of both former mental health institutes.

Branstad spokesman Ben Hammes issued a statement after the Supreme Court hearing saying the governor believes the lawsuit is moot for several reasons. Hammes said every Senate Democrat suing the state voted in the 2016 legislative session not to fund the two mental health institutions in question and to keep them closed. He also cited the Polk County District Court ruling that favored Branstad.

"The facts can’t be disputed," Hammes said. "At any given time, the Department of Human Services’ bed-tracking system shows that we have around 100 open inpatient psychiatric beds available around the state. Gov. Branstad has signed over $310 million in mental health care funding since 2011. The Iowa Health and Wellness Plan provides mental health care to 150,000 more Iowans today that did not have coverage before. Iowans have more access to mental health care than ever before in a community-based setting, which experts agree is better for the patient."