HomeMy WebLinkAboutA012 - Order - Hinders vs. City of Ames, Case No. 30323 JVI.
�Q
IN THE IOWA DISTRICT COURT FOR STORY COUNTY
TH014AS H. HINDERS, )
Plaintiff, ) Cause No. 30323
VS. )
O R D E R
CITY OF AMES, IOWA, et al , )
Defendants. )
VS . )
STORY COUNTY AUDITOR and )
COMMISSIONER OF ELECTIONS, )
Third-Party Defendant. )
This case is before the Court on a motion for summary
judgment filed by the plaintiff. This Court has previously
ruled that the proposal contained within the petition to the
Ames City Council is a valid proposal as contemplated under
Section 388. 2 of The Code , and does not violate the principles
of duality and specificity. The Court also concluded that
Section 388. 2 of The Code requires the Ames City Council to
submit the proposal to the voters at the next regular city
election.
At the time of the hearing on the motion, the Story County
Commissioner of Elections consented to the jurisdiction of the-
Court in order to determine whether the proposal should be submitted
to the voters at the next regular city election in November of
1981, or November of 1983.
Upon hearing, the plaintiff was present with his attorney,
Dale E. Sharp. The defendants were represented by their attorney,
John R. Klaus. The Story County Auditor and Commissioner of
Elections was represented by Story County Attorney, Mary E. Richards.
u4 y
-2-
I.
THE MOTION FOR SUMMARY JUDGMENT
Summary judgment procedure is governed by R.C.P. 237.
R. C. P. 237 (c) entitled, "Motion and Proceedings Thereon, " states
in pertinent part as follows :
" . . .The judqment sought shall be rendered
forthwith if the pleadings , depositions , answers to
interrogatories, and admissions on file , together
with the affidavits , if any, show that there is no
genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter
of law. "
The facts upon which the motion for summary judgment is
based are set forth in the Court ' s ruling on the application for
adjudication of law points and will not be repeated here. Section
388 . 2, The Code, provides in pertinent part as follows :
"The proposal may be submitted to the voters
at any city election by the council on its own motion.
Upon receipt of a valid petition as defined in Section
362. 4 , requesting that a proposal be submitted to the
voters, the council shall submit the proposal at the
next regular city election. "
Section 362. 4 , entitled, "Petition of Eligible Electors , "
provides as follows :
"If a petition of the voters is authorized by
the city code, the petition is valid if signed by
eligible electors of the city equal in number to ten
percent of the persons who voted at the last preceding
regular city election, but not less than ten persons ,
unless otherwise provided by state law. "
Affidavits attached to the motion reveal that at the last
regular city election held on November 6 , 1979 , 7, 090 voters
voted therein. An additional affidavit reveals that the petition
of the plaintiff presented to the Ames City Council contains thc3
signatures of at least 711 eligible electors of the city of
Ames, Iowa. It thus appears that there can be no dispute that
Section 362 . 4 of The Code was complied with.
--------------
-3-
In his petition, the plaintiff prays for a writ of mandamus
commanding the Ames City Council to submit the subject proposition
to the voters of the city of Ames , Iowa at the next regular city
election. The petition containing the proposal was filed in the
office of the City Clerk on August 11 , 1980 . No action was talen
on the proposal until June 15 , 1981 , when a demand was made that
the Council take action upon it.
In considering the issue whether mandamus it the appropriate
relief in this instance, Section 661. 1 defines the action of mandamus
as follows :
"The action of mandamus is one brought to obtain
an order commanding an inferior tribunal, board, corpora-
tion or person to do or not to do an act, the performance
of which the law enjoined as a duty resulting from an
office, trust, or station. "
As previously set forth in this order, the second paragraph
of Section 388. 2 of The Code requires the council to submit a
valid proposal to the voters at the next regular city election.
To this point, the council has declined to do so. It, therefore ,
appears that this action is properly grounded in mandamus , the r(=sult
of which should be an order directing the council to submit the
proposal as provided by statute.
This Court is of the view that there is no dispute as to any
material fact in this case which would prevent the granting of the
motion for summary judgment.
II .
THE ISSUE OF WHEN THE PROPOSAL SHOULD BE SUBMITTED TO
THE VOTERS
This Court has previously ruled in the application for
adjudication of law points that the proposal should be submittt!d
to the voters of the city of Ames , Iowa at the next regular ci,1_y
n� it
r i
-4-
election. The next regular city election will be held on
November 3, 1981, and a dispute has arisen as to whether the
proposal should be submitted then or at the election to be held
in November of 1983.
An analysis of the question requires a review of relevant
statutory provisions. As previously noted, Section 388 . 2 directs
the council to submit the proposal at the next regular city elec-
tion. Section 39. 3 (5) defines city election as follows :
"City election means any election held in a city
for nomination or election of the officers thereof,
including a city primary or run-off election. "
Section 39 . 3 ( 7) defines special election as follows :
"Special election means any other election held
for any purpose authorized or required by law. "
A reading of these definitions leads to the conclusion that
the issue to be submitted to the voters concerning the Ames city
utility is a special election.
Section 47. 6, The Code, entitled "Dates for Special Elec1:ions , "
provides as follows:
"l. The governing body of any political sub-
division which has authorized a special election to
which Section 39 . 2 is applicable shall by written notice
inform the commissioner who will be responsible for
conducting the election of the proposed date of the
special election. If the proposed date of the special
election coincides with the date of a regularly
scheduled election, the notice shall be given no
later than 5 : 00 o' clock p.m. on the last day on which
nomination papers may be filed for the regularly
scheduled election. Otherwise , the notice shall be
given at least thirty days in advance of the date of
the proposed special election. . . "
The last day upon which nomination papers may be filed
for the regularly scheduled election is set forth in Section 367 . 4
of The Code, entitled "Candidacy" :
-5-
"An eligible elector of a city may become a
candidate for an elective city office by filing with
the city clerk a valid petition requesting that his or
her name be placed on the ballot for that office. The
petition must be filed not more than sixty-five days nor
less than forty days before the date of the election, and
must be signed by eligible electors equal in number to at
least two percent of those who voted to fill the same
office at the last regular city election, but not less
than ten persons. Nomination petitions shall be filed
not later than 5 : 00 o' clock p.m. on the last day for filing. "
The plaintiff concedes that in order for him to have complied
with the foregoing Code sections , the proposal concerning the Ames
city utility would have had to have been approved by the commissioner
of elections no later than September 25 , 1981. The upshot is then
that there is an apparent conflict between Section 388 . 2 and Section
47 . 6 , The Code. Section 4 . 7 , The Code , entitled "Conflicts Ber_ween
General and Special Statutes , " states as follows :
"If a general provision conflicts with a special
or local provision, they shall be construed, if possible ,
so that effect is given to both. If the conflict between
the provisions is irreconcilable , the special or local
provision prevails as an exception to the general provision. "
The plaintiff argues that Section 47. 6 is a statute gene2.al
in nature and that Section 388 . 2 is the more specific statute and
should control in this instance. This reasoning would lead to the
conclusion that the proposal should be submitted to the voters at
the election held on November 3 , 1981 .
As set forth in Doe vs . Ray, 251 NW 2d 496 , the polestar of
statutory construction is legislative intent , and the goal of the
Court in construing a statute is to ascertain that intent and, if
possible, give it effect. Legislative intent is shown by construing
the statute as a whole. At page 501 of the Doe case , the following
appears:
r Ae
P .
v
-6-
"Finally, we note that in construing a statute
we must be mindful of the state of the law when it was
enacted and seek to harmonize it, if possible, with
other statutes relating to the same subject. " (Citation_
omitted)
In Wingert vs. Urban, 250 NW 2d 731 , a city council can<_iidate
who received the greater number of votes at a city election appeal-
ed from a decision of the district court that he was not legally
on the ballot and thus could not assume office and that the candi-
date who received the lesser number of votes should be certified
as the winner. In Wingert, an election official inaccurately
informed the candidate of the number of signatures required on
his nominating petition and accepted the petition with an inariequate
number of signatures. One issue before the Court was whether or
not the signature requirement of Section 376 . 4 was mandatory. The
Court concluded that it was. At page 734 of the Wingert case ,
the Supreme Court stated as follows :
"It is well established that in exceptional circum-
stances candidates may be excused from mandatory petition
requirements . See 29 C.J. S. , Elections , section 137 , page
402; 25 Am. Jur. 2d, Elections, section 140, page 831;
Annotations, 98 A.L. R. 2d 1331, 1380-1382 . It is apparent
the statutory failure of most commonly encountered and
excused is a failure to meet a filing deadline. See
Donohoe vs. Shearer, 53 Wash. 2d 27 , 330 P . 2d 316 ( 1958) . "
The Court further states at page 735 of the opinion that.,
"Like signature requirements , statutory deadline requirements are
considered mandatory. "
Cases cited in the Wingert decision as justifying an excuse
for failure to comply with deadline requirements refer to mistaken
information given by election officials . In the Wingert case the
appellant relied in good faith upon an election official's honest
mistake as to the number of signatures contained on the nominat-
ing petitions. In addition, at page 735 of the Wingert case , the
vl
-7-
Court states as follows :
"Excuse of noncompliance is not limited to filing
deadline failures. Noncompliance with a filing fee require-
ment was excused when election officials miscalculated the
amount of a statutory filing fee because they were unaware
of a change in a controlling ordinance . State, ex rel
Schulman vs. Cuyahoga County Board of Elections , 103 Ohio
App. 527, 145 NE 2d 149 (1957) . "
In the instant case, it appears that compliance with Section
47 . 6 is mandatory. Compliance in this case required that the utility
proposal be approved by the commissioner of elections no later than
September 25 , 1981. The failure to meet this deadline was not. due
to mistaken information provided by an election official. Exceptional
circumstances such as those relied upon by the Court in Wingert do
not appear to be present here . In determining whether or not excep-
tional circumstances are present in this case, the Court is mindful
of the testimony of the commissioner of elections that the vot3.ng
machines have already been programed and sealed; and more importantly,
were the proposition placed on the ballot for the November 3 , a981
election, approximately sixty absentee voters would not have tle
opportunity to vote on the issue. In reading Section 388 . 2 and
47. 6 together in an effort to give effect to both provisions
, it
appears that, although the utility proposal should be submitted to
the voters at the next regular city election, that election cannot
be held until November of 1983 .
IT IS, THEREFORE, ORDERED AS FOLLOWS :
1. The motion for summaryjudgment� a_ should be and is
hereby sustained, and the petition requesting the issuance of a
writ of mandamus should be and is granted.
2 . Issuance of the writ of mandamus is withheld until.
November 4 , 1981 .
r ..r.�... _ �.
.00
8
3. The proposal concerning the Ames city utility shall
be submitted to the voters at the next regular city election ,
which will be in November of 1983 .
4 . The costs of this action are taxed against the
defendants , and the Clerk of Court shall enter judgment accordingly.
Dated at Nevada, Iowa, this 26th day of October, 1981.
Judge , 2nd Judicial District o owa.
Copies to:
Dale E. Sharp •
John R. Klaus
Mary E. Richards