Loading...
HomeMy WebLinkAboutA017 - Answer, Case No. 30323 IN THE IOWA DISTRICT COURT IN AND FOR STORY COUNTY THOMAS H. HINDERS, EQUITY NO. RP3�3 Plaintiff 6 VS. F L_ cl�y(I CITY 0": IOWA CITY OF AMES, IOWA, PAUL F. GOODLAND, MAYOR LARRY CURTIS, CHARLES L. HAMMER, MARY ATHERLY, JOHN PARKS, JOHN THURSTON, JUL 1 3 1981 GEORGENE SHANK, CITY COUNCIL ANSWER Defendants. COME NOW the above named Defendants, by their Attorney, and in Answer to the Plaintiff's Petition do state: DIVISION I 1. Paragraph One of the Petition is admitted. 2. Paragraph Two of the Petition is admitted. 3. Paragraph Three of the Petition is admitted. 4. Paragraph Four of the Petition is denied. 5. Paragraph Five of the Petition is denied. 6. Paragraph Six of the Petition is denied. 7. Paragraph Seven of the Petition is denied. 8. Paragraph Eight of the Petition is denied. 9. Paragraph Nine of the Petition is denied. WHEREFORE, it is prayed that Plaintiff's Petition be dismissed and that Defendants have judgment for the costs of these proceedings. DIVISION II Defense 1. Plaintiff prays for a writ of mandamus to issue: "Commanding the Defendants to undertake the necessary proceedings to submit a proposal for the sale and dis- posal of the City Electric Utility and its other assets to the voters of the City." 2. - Plaintiff does not articulate any such proposal or in any way de- scribe or identify any such proposal if any there be. 3. Plaintiff does not pray for a writ commanding submittal of the propositions filed with the City Clerk of Ames on August 11, 1980, but rather a proposal for sale" as yet unknown to or unarticulated by either Plaintiff or Defendants. 4. Praying for a writ to command proceedings to develop and submit a "proposal for sale" seeks more than a ministerial act, but rather an exercise of the discretionary powers of the Ames City Council, for which Mandamus can not be had. WHEREFORE, it is prayed that Plaintiff's Petition be dismissed and that Defendants have judgment for the costs of these proceedings. DIVISION III Defense and Conterclaim for Declaratory Relief I. On or about August 11, 1980, a document was delivered to and filed in the office of the City Clerk of the City of Ames, Iowa, which document is entitled as and purports to be: "Petition of Eligible Electors". 2. Said document bears in excess of one thousand handwritten names and address and is directed to the City Council of the City of Ames, Iowa. 3. The said document requests that there be submitted to the voters at the next city election two propositions as follows: (a) That the City of Ames, Iowa discontinue the operation of the city electric utility. (b) That the city electric generating plant, all transmission lines, and all other assets of the electric utility be sold. 4. The two propositions as aforesaid do not constitute, separately or together, a "proposal" within the meaning and legislative intent of Section 388.2 Code of Iowa. S. There is no statutory authority for nor any lawful duty of the City Council of the City of Ames to submit said propositions to the voters at any election. 6. The Defendants reasonably believe that the Plaintiffs herein, may attempt to compel these Defendants to submit the aforesaid propositions to the voters at an election. -2- WHEREFORE, Defendants pray for judgment of this court dismissing Plaintiff's Petition and for Declaratory Judgment that the two propositions aforesaid do not constitute, either separately or in combination, a "proposal" within the meaning and legislative intent of Section 388.2 Code of Iowa; and, further, that the Defendants herein have no duty to submit said propositions to the voters at any election. DIVISION IV Defense and Counterclaim for Declaratory Relief 1 . The Defendants restate paragraph 1, 2, 3, 4, 5 and 6 of Division III of their Answer and further state what follows. 2. It is feasible for the first of the said propositions to be done without the second, and for the second to be done without the first. That is, the operation of the subject electirc utility can be discontinued without the assets being sold. Conversely, the utility and all its assets can be sold without its operations being discontinued. 3. If the propositions filed with the Ames City Clerk on August 11, 1980, are submitted to the voters in combination under the guise of being a single proposition the act will be unlawful and invalid under the doctrine of "duality". WHEREFORE, Defendants pray for judgment dismissing Plaintiff's Peition; and, for Declaratory Judgment that the purported proposal filed with the Ames City Clerk of August 11, 1980 is invalid and void by reason of duality. DIVISION V Defense and Conterclaim for Declaratory Relief 1 . Defendants restate paragraphs 1 , 2, 3, 4, 5 and 6 of Division III; and, paragraphs 1, 2, and 3 of Division IV of the Answer and further state what follows. 2. The document filed with the Ames City Clerk on August 11, 1980, contains no statement of an offer or of anything proffered for the subject city utility as an operating entity or for its various assets severally. Nor does that said document state any formula, method, procedure, process or proposal of any kind whereby some offer or something profferred for said utility or its several assets may be arrived at or known. -3- 7' y 3. The document filed with the Ames City Clerk on August 11, 1980 contains no statement of date when the subject utility's operations are to discontinue and cease. 4. The said document contains no statement of provision to be made for funding and meeting current, potential and inchoate rights of current, and potential beneficiaries of the utility retirement system. 5. The said document contains no statement of provision for electric service upon the discontinuance of operations of the city utility, or assign- ment of service areas, or a franchising of other utilities to service. 6. The propositions stated in the said August 11, 1980 documents are, on their face, inconsistent with the provisions of Chapter 476, 476A, and 478 Code of Iowa, the Rules of the Iowa Commerce Commission, and contrary to the laws and public policy of the State of Iowa. WHEREFORE, it is prayed that the Plaintiff's Petition be dismissed and further that the Defendants be granted a Declaratory Judgment that the pro- positions and documents filed with the Ames City Clerk on or about August 11, 1980, are void and a nullity by reason of being in contravention of the law and established public policy of the State of Iowa. HN R. KLAUS City Attorney 5th & Kellogg Ames, Iowa 50010 232-6210, ext. 244 ATTORNEY FOR DEFENDANTS COMFICATE Of SER a The undersigned hereby certifies that a true copy of the foregoing instrument was served upon each of the attorneys of record of all parties to the abov"ntftled causd by &xkisirtg the same in an envelope addressed to each such attorney A hb respective address as disclosed by the pleadings of record buein,wfth postage fugy paid and by de shin!said envelope h a United Sty pit Office depository ins tosre •In cJ� day of -4-