Christensen v. Gale

301 Neb. 19

917 N.W.2d 145

Mark R. CHRISTENSEN and Lydia Brasch, appellants,

v.John GALE, Secretary of State of the State of Nebraska, et al., appellees.

No. S-18-825.

Supreme Court of Nebraska.

Filed September 12, 2018.

J.L. Spray, Lincoln, and Ryan K. McIntosh, Nebraska City, of Mattson Ricketts Law Firm, for appellants.

Douglas J. Peterson, Attorney General, and Ryan S. Post, Lincoln, for appellee John Gale.

Andre R. Barry and Shawn D. Renner, Lincoln, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees Insure the Good Life, Sarah Amanda Gershon, Kathy Campbell, and Rowen Zetterman.

Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

This case presents a challenge to an initiative petition seeking to expand Medicaid coverage. The district court granted summary judgment in favor of the defendant sponsors and the Secretary of State. The court concluded that the measure did not violate the single subject rule, because the maximization of federal funding for the expanding of Medicaid eligibility had a natural and necessary connection to the expansion. The court also concluded that the list of sponsors was not incomplete under Neb. Rev. Stat. § 32-1405(1) (Reissue 2016). One of the sponsors, "Insure the Good Life," was both a political committee and a service mark. While the controlling members of the committee were named sponsors, the nonprofit organization holding the service mark was not. The court reasoned that because the nonprofit organization did not assume responsibility for the initiative process, it was not a sponsor. The court found that further challenges to the proposed measure as being an unconstitutional delegation of legislative authority and an improper appropriation were not ripe for review. We affirm.

BACKGROUND

An initiative petition to expand coverage in the Medical Assistance Act¹ was filed with Secretary of State John Gale. The petition proposed the addition of "Section 2" to that act, with five subsections and the general object to "expand eligibility to cover certain adults ages 19 through 64 whose incomes are one-hundred-thirty-eight percent (138%) of the federal poverty level or below ... and to maximize federal financial participation to fund their care."

Specifically, the subsections of proposed section 2 would: (1) expand Medicaid to adults ages 19 through 64 whose income is equal to or less than 138 percent of the federal poverty level, (2) direct the Department of Health and Human Services (DHHS) to submit a state plan amendment and all other necessary documents seeking required approvals or waivers to the federal centers for Medicare and Medicaid services, (3) direct DHHS to take all actions necessary to maximize federal financial participation in funding medical assistance pursuant to section 2, (4) require that no greater burdens or restrictions may be imposed on persons eligible for medical assistance under section 2 than any other population eligible for medical assistance, and (5) require that section 2 shall apply notwithstanding any other provision of law or federal waiver.

The sworn statement filed with the Secretary of State listed four sponsors of the petition: Sarah Amanda Gershon, Kathy Campbell, Dr. Rowen Zetterman, and Insure the Good Life (the named sponsors). Insure the Good Life is both a ballot question committee and a service mark registered by Nebraska Appleseed Center for Law in the Public Interest (Appleseed).

Mark R. Christensen, a former member of the Nebraska Legislature and a parent of a child who received Medicaid benefits, and Lydia Brasch, a current member of the Nebraska Legislature, brought an action for declaratory judgment under Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016) and injunctive relief pursuant to Neb. Rev. Stat. § 32-1412(2) (Reissue 2016) against the named sponsors of the petition and Gale in his capacity as Secretary of State. They alleged that (1) the initiative violated the single subject rule of article III, § 2, of the Nebraska Constitution ; (2) the initiative failed to contain a sworn statement containing the names and addresses of every person, corporation, or association sponsoring the petition, as required by § 32-1405(1) ; (3) the proposed amendment constituted an unconstitutional delegation of legislative authority² ; and (4) the proposed amendment failed to meet the criteria set forth in Neb. Rev. Stat. § 49-804 (Reissue 2010), for appropriations.

Specifically, Christensen and Brasch alleged that the initiative violated the single subject rule, because the expansion of Medicaid eligibility and the maximization of federal financial participation in funding Medicaid are two separate and distinct subjects. They alleged that the initiative violated the mandate of § 32-1405(1), that it list every person, corporation, or association sponsoring the petition, because it failed to include Appleseed. They alleged that the proposed amendment unconstitutionally delegated legislative power by directing DHHS to develop a plan for implementation of the amendment without sufficient statutory guidance or limitations. And they alleged that the proposed amendment was an appropriation, because it "requires DHHS to expand medical assistance to thousands of additional individuals at a cost of millions of dollars," and such appropriation did not satisfy the criteria of § 49-804.

The Secretary of State and the named sponsors moved to dismiss the complaint pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(1) and (6), for failure to state a claim and lack of jurisdiction. Christensen and Brasch moved for a "Judgment on the Complaint" or, alternatively, for summary judgment.

At the hearing on the motions, the Secretary of State offered, and the court received, exhibits 1 and 2. Exhibit 1 is a copy of the petition sponsor’s sworn statement, the object statement, the proposed text of the statutory initiative petition, and the sample initiative petition form. Exhibit 2 is a certification by the Secretary of State that Insure the Good Life was registered as a service mark by Appleseed on September 28, 2015, with the stated purpose of being used on materials distributed to support expansion of Medicaid in the sale or advertising of services. These exhibits were also attached to the complaint. The parties agreed that the receipt of these exhibits, alone, did not convert the motions to dismiss into motions for summary judgment. But both parties offered further exhibits.

Christensen and Brasch offered exhibits 3 and 4. Exhibit 3 was a certified copy of proposed 2017 Neb. Laws, L.B. 441, with attached fiscal analyst notes from the 105th Legislature, First Session. The court sustained the sponsors’ and the Secretary of State’s relevancy objections, as L.B. 441 was a bill that did not pass. The bill sought to expand Medicaid, and the attached fiscal analyst notes estimated the increased state expenditures that would result.

Exhibit 4 is an exhibit by Christensen and Brasch’s attorney, averring that he had personally observed Appleseed’s social media accounts displaying the Insure the Good Life logo. Several posts were attached. The Secretary of State objected on relevancy. The sponsors objected on relevancy and hearsay grounds. For purposes of the motion to dismiss, the sponsors also objected that it was evidence outside the pleadings. Christensen and Brasch renewed the offer of exhibit 4 with the understanding that the motions to dismiss would be considered motions for summary judgment. The court received exhibit 4 into evidence.

The sponsors then offered exhibits 5 through 8 for purposes of summary judgment. The exhibits contain records of the Nebraska Accountability and Disclosure Commission.

Exhibit 5 is a statement of organization of a political committee, stating that Insure the Good Life is such a committee. The statement of organization lists Noelle Obermeyer as the treasurer of the committee and names Gershon, Campbell, and Zetterman as the controlling individuals of the committee.

Exhibits 6 through 8 are Insure the Good Life’s campaign statements filed with the commission. Christensen and Brasch objected to exhibit 5 on relevancy and foundation grounds and to exhibits 6 through 8 on relevancy. Exhibit 7 shows that Insure the Good Life disclosed to the commission contributions by Appleseed. The court overruled the objections and entered exhibits 5 through 8 into evidence.

Treating the motions to dismiss as motions for summary judgment without any objection by the parties, the court ultimately entered summary judgment for the named sponsors and the Secretary of State. The court concluded that the initiative did not violate the single subject rule because the maximization of federal financial participation in the Medicaid expansion had a natural and necessary connection to the expansion. The court reasoned that even viewing the evidence in a light most favorable to Christensen and Brasch and concluding that Appleseed supported the initiative through a public relations campaign and posts on social media accounts, such facts would not make Appleseed a sponsor of the petition under § 32-1405(1), because Appleseed did not assume responsibility for the initiative process. The court found that the remaining separation of powers and appropriations claims were not yet ripe for review. Christensen and Brasch appeal.

ASSIGNMENTS OF ERROR

Christensen and Brasch assign, summarized and restated, that the district court erred by (1) dismissing as unripe and failing to find merit to its claims that the ballot measure was an unconstitutional delegation of legislative authority and did not meet the criteria set forth in § 49-804 for appropriations, (2) failing to determine that the initiative petition was constitutionally deficient because it contained more than one subject, (3) failing to determine that the initiative petition was constitutionally deficient because it did not list Appleseed as a sponsor, and (4) excluding...