HomeMy WebLinkAboutA015 - Response and Resistance to Motion for Summary Judgment, Case No. 30323 cv,
IN THE IOWA DISTRICT COURT
IN AND FOR STORY COUNTY
THOMAS H. HINDERS,
EQUITY NO. 30323
Plaintiff
VS.
CITY OF AMES, et al. , RESPONSE AND RESISTANCE
TO MOTION FOR SUMMARY
JUDGMENT
Defendants.
COME NOW the defendants and in response and resistance to the
plaintiff' s motion for summary judgment state:
1 . Plaintiff's petition and prayer is for a writ of mandamus commanding
the submittal of the subject proposition to the voters of the City of Ames,
Iowa at the next regular city election, and to do any and all necessary
things to accomplish an election on such proposal, and for further equitable
relief as may be just.
2. The next regular city election will be on November 3, 1981.
3. That as a matter of law all that the defendants can do or be
commanded to do in regard to an election is to enact a measure calling for
the same and to give notice thereof to the county commissioner of elections
but the time to do so under the election laws has passed. (See Sec. 47.60))
The Code. The defendants could easily comply with a writ commanding it to
submit the proposition to the voters at the November 3 election; but, it
would be extremely difficult, if not impossible, as a practical matter, for
the commissioner of elections to actually conduct an election on that date.
5. Conducting the election as prayed for on November 3, 1981 may result
in absentee voters, who have already cast their ballot, being denied an
opportunity to vote.
• 2
I
6. The writ prayed for is self executing, cannot be stayed supersedeas,
and may result in the denial to the plaintiffs of an effective opportunity to
appeal a significant and debatable case of first impression.
7. Mandamus is an extraordinary remedy discretionary with the court.
8. The court may and ought to fashion a reasonable and equitable remedy
under all the circumstances of the case.
9. The plaintiff has not shown any proper purpose or proper interest to
be served by the writ sought or how denial or modification of the form of the
writ will cause him to suffer any damage or interfere in any way with his
rights of person or property.
i;
WHEREFORE, it is urged that the writ be denied; or, in the alternative,
that the writ command the city to call an election on the subject proposition
at the next regular city election following the one scheduled for November 3
of this year.
Respectfully submitted,
John R. Klaus
City Attorney
5th & Kellogg
Ames, Iowa 50010
ATTORNEY FOR DEFENDANTS