[Supreme Court] must determine the affirmative showing ...
TABLE OF AUTHORITIES ii
ISSUES PRESERVED FOR REVIEW 1
I. The cities failed to comply with the statutory requirements and duties of §368.4 in 1990 thus the attempted moratorium was void and deprived the CDB or Courts jurisdiction to enforce it. The CDB and Courts cannot enforce a void agreement which failed to establish jurisdiction as statutorily prescribed. 1
II. The CDB and Courts are without authority to enforce a void agreement. Jurisdiction to enforce an agreement be claimed when it was not established as statutorily mandated. Alternatively jurisdiction in Judicial review of Agency Action was removed by codification of §368.22 2
III Due to lack of jurisdiction, no Issue or claim preclusion exists because any ruling used to establish preclusion is coram non judice or, in the alternative, no issue of this case has been precluded by ruling in any prior case or; in the alternative the issues of this case are exceptions to the rules of preclusion. 2
IV. The Statutory Scheme Is Unconstitutional as Applied 4
V. The Iowa Attorney General is violating the separation of powers doctrine of the Iowa Constitution Art. III §1. 6
STATEMENT OF CASE 7
ARGUMENT 8
I. The cities failed to comply with the statutory requirements and duties of §368.4 in 1990 thus the attempted moratorium was void and that deprived the CDB or Courts jurisdiction to enforce it. The CDB and Courts cannot enforce a void agreement which failed to establish jurisdiction as statutorily prescribed. 8
II. The CDB and Courts are without authority to enforce a void agreement. Jurisdiction to enforce an agreement be claimed when it was not established as statutorily mandated. Alternatively jurisdiction in Judicial review of Agency Action was removed by codification of §368.22 15
III. Due to lack of jurisdiction, no Issue or claim preclusion exists because any ruling used to establish preclusion is coram non judice or, in the alternative, no issue of this case has been precluded by ruling in any prior case or; in the alternative the issues of this case are exceptions to the rules of preclusion. 17
IV. The Statutory Scheme Is Unconstitutional as Applied 24
V. The Iowa Attorney General is violating the separation of powers doctrine of the Iowa Constitution Art. III §1 35
SUMMARY 39
TABLE OF AUTHORITIES
Cases
Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs.,
613 N.W.2d 674 4, 24
Anderson v. CDB 631 N.W.2d 671(Iowa 2001)
631 N.W.2d 671(Iowa 2001) 4
Bagley v. Rogerson,
5 F.3d 325 6, 34
Berger v. Iowa Finance Authority,
593 N.W.2d 138 4, 30
Campbell v. Iowa Beer & Liquor Control Dept. ,
366 N.W. 2d 574 4, 23
Cedar Memeorial Park Cemetary Ass’n v. Personnel Associates, Inc.,
178 N.W.2d 343 6, 33
Chicago, R.I. & P. Ry. Co. v. Streepy,
224 N.W. 41 1, 17, 41
City of Cedar Falls v. Flett,
330 N.W.2d 251 10, 46
City of Clinton v. Owners of Property, etc.
191 N.W.2d 671 passim
City of Des Moines v. City Dev. Bd.,
473 N.W.2d 197 1, 19
City of Monticello v. Adams,
200 N.W.2d 522 6, 31
Clark v. Brewer
776 F2d 226 6, 34
Clive v. Colby
121 N.W.2d 115 13
DeCoster v. Franklin County
497 N.W.2d 849 10, 44
Des Moines Register and Tribune Co. v. Dwyer,
542 N.W.2d 491 10, 44
Des Moines v. City Development Bd.
473 N.W.2d 197 6, 31
Dolezal v. Bockes,
602 N.W. 2d 348 3, 22
Eckerson v. City of Des Moines,
115 N.W. 177 6, 41
Everds Brothers v. Gillespie
126 N.W.2d 1, 13
Exira Community School Dist. V. State
512 N.W.2d 787 11, 45
Fencl v. City of harpers Ferry
620 N.W.2d 808 4, 23
Fisher v. Chickasaw County,
553 N.W.2d 331 6, 33
Gorman v. City Dev. Bd. ,
565 N.W.2d 607 passim
Helmers v. Altruck Freight Systems
436 N.W.2d 39 1, 3, 13, 20
Hunter v. City of Des Moines,
300 N.W.2d 121 24, 25, 26, 27
Hunter v. Pittsburgh,
207 U.S. 161 7, 31
Hutchins v. City of Des Moines,
157 N.W. 881 45
In Interest of C.S.,
516 N.W.2d 851 7, 42
In re Lehahan’s Estate,
46 N.W.2d 352 4, 26
In Re Lounsberry
226 N.W. 140 7, 40
In re Ramsay’s Estate,
35 N.W.2d 651 4, 27
Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp. 606 N.W.2d 367 7, 10, 32, 44
Iowa v. Nebraska145
U.S. 519 1, 12
Keefner v. Porter,
293 N.W. 501 7, 36
Kelly v. Brewer
239 N.W.2d 109 7, 33
Knowles v. Iowa Dep’t of Transp.,
394 N.W.2d 342 7, 38
Knudson v. Linstrum
8 N.W. 2d 495 7, 36
Koch v. Kostichek
409 N.W.2d 680 7, 36
Kunkel v. Eastern Iowa light & Power Cooperative
5 N.W.2d 899 5, 27
Lacina v. Maxwell,
501 N.W.2d 531 7, 31
Marbury v. Madison,
1 Cranch, 163 7, 35
Matter of Bishop,
346 N.W.2d 500 7, 38
Miller v. Farmers Coop
176 N.W.2d 832 2, 3, 19, 21
Morford v. Unger
8 Iowa 82 (Iowa 1859) 39
Patterson v. Iowa Bonus Board 71N.W.2d 1 9, 42
Patton v. municipal Fire & Police retirement systems of Iowa
587 N.W.2d 480 8, 33
Penn v. Iowa State Board of Regents
577 N.W.2d 393 3, 5, 22, 26
Pierce v. Staley,
587 N.W.2d 484 10, 44
Puerto Rico v. Branstad
107 SCt. 2802, 483 U.S. 219 10, 45
Riggs v. Moise,
128 S.W.2d 632 5, 26
Secrest v. Galloway Co.,
30 N.W.2d 793 5, 26
Siegel v. Chicago, R.I. & P. Ry. Co.,
208 N.W. 78 8, 41
Sisco v. Iowa-Illinois Gas and Elec. Co.,
368 N.W.2d 853 3, 22
Smith v. Thompson,
258 N.W. 190 8, 10, 43, 44
Stange v. City of Dubuque,
17 N.W. 518 8, 41, 43
State ex rel. Klise v. Town of Riverdale,
57 N.W.2d 63 8, 41
State ex rel. Turner v. Iowa State Highway Commission,
186 N.W.2d 141 10, 44
State v. Bell,
572 N.W.2d 910 8, 37
State v. Ceron,
573 N.W.2d 587 30
State v. Izzolena
609 N.W.2d 541 passim
State v. James
393 N.W.2d 465 42
State v. Kramer
235 N.W.2d 114 8, 37
State v. Osborne et al.
154 N.W. 294 2, 8, 17, 34
State v. Perry,
69 N.W.2d 8, 32
State v. Seager,
571 N.W.2d 204 5, 24
Straton v. Hodgkins,
155 S.E. 902 2, 18
Town of Grimes v. Adel Clay Products Co.
126 N.W.2d 270 2, 12
Town of McGregor v. Baylies
19 Iowa 43 8, 35
Urbanizadora Versalles, Inc. v Fivera Rios,
701 F.2d 993 40
Statutes
§114A.9 7
§13.2 35
§17A.12 12
§17A.17 33, 34
§17A.19 passim
§355.9 passim
§362.2 9, 21
§368.11 passim
§368.17 25
§368.22 passim
§368.4 passim
§368.6 19, 20, 22, 29
§368.7 19, 21, 22, 27
§4.1 6, 7
Other Authorities
16B Am Jur 2d Constitutional Law §588 27
1998 Acts, ch 1202, §§40, 46 10
American Heritage College Dictionary Third Edition 7
Ia.RulesCivProc 262 12
Ia.RulesCivProc 263 12
Ia.RulesCivProc. 261 12
Iowa Code of Professional Responsibility for Lawyers EC 7-14 17, 34
Iowa Constitutional Debates on Judiciary, Friday February 13th 1857 Page 478 31
Supreme Court Rule 8.2 15
Constitutional Provisions
Art. I §1 21
Art. I §2 22, 35
Art. I §20 27
Art. I §6 23
Art. I §9 21, 26
Art. III §1 32, 35
Art. III §29 22, 28
Art. III §30 passim
Art. XI §5 33
Art. XII §1 19, 29
U.S.Constitution Amen V 13
U.S.Constitution XIV 13
ISSUES PRESERVED FOR REVIEW
I. The cities failed to comply with the statutory requirements and duties of §368.4 in 1990 thus the attempted moratorium was void and that deprived the CDB or Courts jurisdiction to enforce it. The CDB and Courts cannot enforce a void agreement which failed to establish jurisdiction as statutorily prescribed.
AUTHORITIES
Cases
Chicago, R.I. & P. Ry. Co. v. Streepy, 224 N.W. 41 (Iowa1929)
City of Clinton v. Owners of Property, etc. 191 N.W.2d 671
City of Des Moines v. City Dev. Bd., 473 N.W.2d 197 (Iowa 1991)
Everds Brothers v. Gillespie 126 N.W.2d (Iowa 1964).
Gorman v. City Development Bd. 565 N.W.2d 607 (Iowa 1997).
Helmers v. Altruck Freight Systems 436 N.W.2d 39
Iowa v. Nebraska145 U.S. 519
Miller v. Farmers Coop 176 N.W.2d 832, 834
State v. Osborne et al. 154 N.W. 294
Straton v. Hodgkins, 155 S.E. 902
Town of Clive v. Colby 121 N.W.2d 115, 117
Town of Grimes v. Adel Clay Products Co. 126 N.W.2d 270 (Iowa 1964)
Statutes
CODE OF IOWA (2001)
§4.1
§355.9
§368.4
CODE OF IOWA 1990 SUPPLEMENT
§114A.9
Other Authorities
American Heritage College Dictionary Third Edition
II. The CDB and Courts are without authority to enforce a void agreement. Jurisdiction to enforce an agreement be claimed when it was not established as statutorily mandated. Alternatively jurisdiction in Judicial review of Agency Action was removed by codification of §368.22.
AUTHORITIES
Cases
City of Clinton v. Owners of Property, etc. 191 N.W.2d 671 (Iowa 1971).
Dolezal v. Bockes, 602 N.W. 2d 348 (Iowa 1999).
Gorman v. City Development Bd. 565 N.W.2d 607 (Iowa 1997)
Helmers v. Altruck Freight Systems 436 N.W.2d 39
Miller v. Farmers Coop 176 N.W.2d 832, 834
Penn v. Iowa State Board of Regents 577 N.W.2d 393
Sisco v. Iowa-Illinois Gas and Elec. Co., 368 N.W.2d 853 (Iowa 1985)
Statutes
IOWA CODE (2001)
§17A.19.
§362.2
§368.4
§368.22
§355
Other Authorities
1998 Acts, ch 1202
III Due to lack of jurisdiction, no Issue or claim preclusion exists because any ruling used to establish preclusion is “coram non judice” or, in the alternative, no issue of this case has been precluded by ruling in any prior case or; in the alternative the issues of this case are exceptions to the rules of preclusion.
AUTHORITIES
Cases
Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs.,
613 N.W.2d 674, 676 (Iowa 2000)
Anderson v. CDB 631 N.W.2d 671(Iowa 2001) 631 N.W.2d 671(Iowa 2001)
Berger v. Iowa Finance Authority, 593 N.W.2d 138 (Iowa 1999)
Campbell v. Iowa Beer & Liquor Control Dept. , 366 N.W. 2d 574.
Fencl v. City of Harpers Ferry 620 N.W.2d 808 (Iowa 2000)
Gorman v. City Development Bd. 565 N.W.2d 607 (Iowa 1997)
Hunter v. city of Des Moines 300 N.W.2d 121 (Iowa 1981)
In re Lehahan’s Estate, 46 N.W.2d 352
In re Ramsay’s Estate, 35 N.W.2d 651 (Iowa 1949)
Kunkel v. Eastern Iowa light & Power Cooperative 5 N.W.2d 899 (Iowa 1942).
Penn v. Iowa State Board of Regents 577 N.W.2d 393,.
Riggs v. Moise, 128 S.W.2d 632, 344 Mo. 177
Secrest v. Galloway Co., 30 N.W.2d 793
State v. Izzolena 609 N.W.2d 541 (Iowa 2000)
State v. Seager, 571 N.W.2d 204, 208 (Iowa 1997)
Statutes
IOWA CODE (2001)
§17A.12
§368.22
§17A.14
§355.9
§368.11
§368.4
§17A.19
Constitutional Elements
U.S.Constitution Amen V
U.S. Const Amen. XIV.
Other Authorities
Supreme Court Rule 8.2.
Iowa Code of Professional Responsibility for Lawyers EC 7-14
IV. The Statutory Scheme Is Unconstitutional as Applied.
AUTHORITIES
Cases
Anderson v. CDB 631 N.W.2d 671(Iowa 2001)
Bagley v. Rogerson, 5 F.3d 325
Cedar Memeorial Park Cemetary Ass’n v. Personnel Associates, Inc., 178 N.W.2d 343 (Iowa 1970)
Chicago, R.I. & P. Ry. Co. v. Streepy 224 N.W. 41.
City of Clinton v. Owners of Property, etc. 191 N.W.2d 671 at 674
City of Monticello v. Adams, 200 N.W.2d 522 (Iowa 1972)
Clark v. Brewer 776 F2d 226
Des Moines v. City Development Bd. 473 N.W.2d 197 (Iowa 1991)
Eckerson v. City of Des Moines, 115 N.W. 177.
Fisher v. Chickasaw County, 553 N.W.2d 331, 334 (Iowa 1996)
Gorman v. City Dev. Bd. , 565 N.W.2d 607
Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151
In Interest of C.S., 516 N.W.2d 851 (Iowa 1994)
In Re Lounsberry 226 N.W. 140,143 (Iowa 1929).
Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 367 (Iowa 2000).
Kelly v. Brewer 239 N.W.2d 109, 114 (Iowa 1976) at 115.
Keefner v. Porter, 293 N.W. 501
Knowles v. Iowa Dep’t of Transp., 394 N.W.2d 342, 344 (Iowa 1986)
Knudson v. Linstrum 8 N.W. 2d 495
Koch v. Kostichek 409 N.W.2d 680, 684
Lacina v. Maxwell, 501 N.W.2d 531, 533 (Iowa 1993).
Marbury v. Madison, 1 Cranch, 163, 2 L.Ed. 60
Matter of Bishop, 346 N.W.2d 500 (Iowa 1984).
Morford v. Unger 8 Iowa 82 (Iowa 1859) (Iowa 1859)
Oldham v. Chandler -Halford, 877 F.Supp. 1340.
Patterson v. Iowa Bonus Board. 71 N.W.2d 1.
Patton v. municipal Fire & Police retirement systems of Iowa 587 N.W.2d 480 (Iowa 1998)
Siegel v. Chicago, R.I. & P. Ry. Co., 208 N.W. 78.
Smith v. Thompson, 258 N.W. 190 (Iowa 1934)
Sperry & Hutchinson Co. v. Hoegh, 65 N.W.2d 410
Stange v. City of Dubuque, 17 N.W. 518 (Iowa 1883)
State v. Bell, 572 N.W.2d 910, 912 (Iowa 1997).
State v. Ceron, 573 N.W.2d 587
State v. Izzolena 609 N.W.2d 541 (Iowa 2000)
State v. James 393 N.W.2d 465
State ex rel. Klise v. Town of Riverdale, 57 N.W.2d 63 (1953).
State v. Kramer 235 N.W.2d 114, 116
State v. Osborne 154 N.W, 294, 300.
State v. Perry, 69 N.W.2d (Iowa 1955)
Town of McGregor v. Baylies 19 Iowa 43 .
U.S. v. Maxwell, 278 F.2d 206
Urbanizadora Versalles, Inc. v Fivera Rios, 701 F.2d 993
Statutes
Iowa Code (2001)
§17A.19
§355.9
§368.4
§368.6
§368.7
§368.8
§368.11
§368.17
§368.22.
Iowa Code (1973 )
§362.26
Constitutional Elements
Iowa Constitution
Art. I §1
Art. I §2
Art. I §6
Art. I §9
Art. I §20
Art. III §1
Art. III §29
Art. III §30
Art. XII §1
U.S. Constitution Amen. V
U.S. Constitution Amen. XIV
Other Authorities
16B Am Jur 2d Constitutional Law §588
16 C.J.S. Constitutional law §86
V. The Iowa Attorney General is violating the separation of powers doctrine of the Iowa Constitution Art. III §1.
AUTHORITIES
Cases
DeCoster v. Franklin County 497 N.W.2d 849 (Iowa 1993).
Des Moines Register and Tribune Co. v. Dwyer, 542 N.W.2d 491 (Iowa 1996)
Exira Community School Dist. V. State 512 N.W.2d 787
Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp. 606 N.W.2d 367
Pierce v. Staley, 587 N.W.2d 484.City of Cedar Falls v. Flett,
330 N.W.2d 251(Iowa 1983).
Puerto Rico v. Branstad
107 SCt. 2802, 483 U.S. 219, 97 L.Ed.2d 187 (U.S.Iowa 1987)
Smith v. Thompson, 258 N.W. 190 (Iowa 1934)
State v. Izzolena 609 N.W.2d 541 (Iowa 2000)
State ex rel. Turner v. Iowa State Highway Commission,
186 N.W.2d 141 (Iowa 1971)
Statutes
Iowa Code (2001)
§13.2
§17A.17
§368.22
Constitutional Elements
Iowa Constitution
Art. XI §5
Art. I §2
Art. III §1
Other Authorities
Iowa Constitutional Debates on Judiciary, Friday February 13th 1857 Page 478
Iowa Code of Professional Responsibility for Lawyers EC 7-14
STATEMENT OF CASE
In July of 1990, the cities of Des Moines and Carlisle attempted an annexing moratorium pursuant to §368.4 (hereinafter “moratorium” or “agreement”). The cities designated the centerline of “future proposed relocated Highway 65” as a line of demarcation without reference to any other boundary.
In Jan. of 1991 the Iowa DOT surveyed a prospective right of way for Highway 65 which did, in fact, and in time, become the highway in Dec. 1997 the centerline being established between 1993 and 1995 far from the prefatory map’s depiction in 1990.
In May of 1998, the city of Des Moines filed an involuntary annexation for “its” side of the line which was dismissed. A §368.7 petition by the plaintiff and his neighbors (hereinafter “West Carlisle”) was denied by the City of Carlisle due to the moratorium. West Carlisle then filed a §368.11 petition before the City Development Board (hereinafter “CDB”).
On July 16, 1998, the CDB dismissed the West Carlisle §368.11 petition based upon the advice of the Attorney General (hereinafter AG) who interpreted the wording of the 1990 moratorium. The CDB upheld this dismissal in Aug. 1998. An administrative appeal was filed in Polk County in Sept. 1998 which was ruled in favor of West Carlisle. The CDB with Des Moines as intervenor appealed the district court ruling in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) which reversed the lower courts ruling.
No determination has ever been made of where the moratorium demarcation line was located in 1990. No notice was served upon the CDB by either city.
ARGUMENT
I. The cities failed to comply with the statutory requirements and duties of §368.4 in 1990 thus the attempted moratorium was void and that deprived the CDB or Courts jurisdiction to enforce it. The CDB and Courts cannot enforce a void agreement which failed to establish jurisdiction as statutorily prescribed.
Scope and Standard of review
The court must view the execution of the agreement under the circumstances which existed in 1990 when attempted not from the present looking backwards. [Supreme Court] must determine the affirmative showing solely on the present circumstances as shown in the record, not on a showing based on what may or may not take place in the future. That is speculation. Town of Grimes v. Adel Clay Products Co. 126 N.W.2d 270 (Iowa 1964) (see also Iowa v. Nebraska145 U.S. 519; Gorman v. City Dev. Bd. , 565 N.W.2d 607; City of Clinton v. Owners of Property, etc. 191 N.W.2d 671; Clive v. Colby 121 N.W.2d 115…)
ARGUMENT:
Statutory Compliance:
Cities cannot claim exclusive jurisdiction from July of 1990 and expect to assert that jurisdiction upon conditions that only came to exist years later. Such a holding would permit a municipality to tie up territory for extended periods of time while awaiting the conditions speculated upon in the agreement (see Town of Clive v. Colby 121 N.W.2d 115, 117)
Two fundamental flaws in the Des Moines—Carlisle moratorium invalidate the agreement and when combined irrefutably void the effort. Municipal contract made in violation of mandatory statute is not merely voidable but void. Everds Brothers v. Gillespie 126 N.W.2d (Iowa 1964).
SERVICE OF NOTICE UPON CDB
Evident without analysis, the failure of both cities to serve notice of a hearing upon the CDB as §368.4 mandates voids the moratorium. Without the service of this jurisdictional notice, the CDB cannot and did not attain jurisdiction prior to the initial mandated hearings in order to perform its duties. This defect could not be cured ex post facto by the cities, the CDB or the Courts. “If agency action is constitutionally infirm for want of proper notice at inception of proceedings, such action does not gain validity because of passage of time; agency’s action is “state action” within Fourteenth Amendment, and is thus subject to rule that action which is void under Fourteenth Amendment may be challenged at any time. U.S.C.A. Const Amend 14 Helmers v. Altruck Freight Systems 436 N.W.2d 39 (emphasis added)
STATUTORY REQUIREMENT OF SPECIFIC DESCRIPTION:
The other illegal deficiency of the moratorium is the failure of the description used to specifically describe the territory. This failure fatally taints the prefatory paperwork, the published notice, the council resolutions and any action of other entities premised upon it. “The description will be sufficiently certain when from it the property can be identified either by a person who is familiar with the locality or by an actual survey.” City of Clinton v. Owners of Property, etc. 191 N.W.2d 671 at 674 Absurdly there is no starting point to direct a person or surveyor where to put pen to paper which is void pursuant to §355.9 which requires commencement of a line at a “physically monumented corner or boundary line of record” or in sub(2) “a corner marked and established in the United States public land survey system”. In addition to no commencement point, not one property line or boundary in Polk County is used; no streets, plats or survey of any species is mentioned. The wording does not identify a line, or a territory, and is purely inarticulate speculation:
“ commencing at the intersection of the center line of the proposed future relocated Iowa Highway 65 and the south bank of the Des Moines River; thence southwesterly and southerly along the center line of said relocated highway 65 to its intersection with the East section line projected northerly of Section 5, Township 77 North, Range 23 West of the 5th P.M.; thence southerly along said northerly projection of said section 5, and the East section lines of sections 5,8 and 17 of Township 77 North to the Northeast corner of Section 20 in said Township, said point being three miles South of County Lines Road, all now included in and forming a part of Polk and Warren Counties, Iowa” (emphasis added).
This nonsense is untenable as premise for a §368.4 moratorium or legal notice and the patent speculation is in violation of Chapter 355 (and prior 114A) which applies to all government agencies including the cities, CDB, AG and this court. The intersections of the Highway and river or Highway and section line would not be defined until much later by the Iowa DOT; right of way – January 1991, center line 1993, designation as “highway 65” December 1997. With no boundary, line, road, bridge or even “big rock” referenced, no person could determine the “specifically described territory” regardless of where a city planner frivolously (and erroneously) dragged a crayon across a map to create “the yellow brick road” to Warren County in 1990. This “description” is not a “legal”, “specific”, “general” or coherent description of anything in Polk County.
Because substantial, rather than minimal, compliance is required, parties are encouraged to comply with the statute and provide accurate information in all annexation proceedings. Gorman v. City Development Bd. 565 N.W.2d 607, 610 (Iowa 1997).
Claims of “Substantial Compliance” With §368.4 Are Fraudulent:
The CDB only viewed this moratorium post enactment, after an indeterminate time, without Administrative Code Rules or any validation process thus “[i]f the application does not substantially comply with statutory requirements, the Board must deny the application.” Gorman v. City Dev. Bd. , 565 N.W.2d 607. Peremptorily, since the CDB and cities did not establish jurisdiction compliant to §368.4, the substantive due process mandate of sentence 2 was not complied with thus validation of the moratorium was clearly and palpably fraudulent.
It is only with serious caution that fraud is claimed. Acting in a quasi judicial capacity, the Defendants noted only notice and public hearing on July 16, 1998 and falsely validated the agreement without seeking the notice upon themselves or any other requirement in the record. Their duty here was to take notice of all statutory requirements collectively and to specifically inspect those for which there was no evidence of compliance. Claiming substantial compliance without any trace of conformity in the record clearly placed validation of the moratorium into the realm of fraudulent. The falsification by the state agencies is prejudicially fraudulent as set out below:
Failure to comply with statutory requirements invalidates the attempted Des Moines Carlisle §368.4 moratorium
In §368.4 the cities contacted 6 legislative mandates underlined below in the partitioned statute with discussion of failure to comply following:
“A city, following notice and hearing, may by resolution agree with another city or cities to refrain from annexing specifically described territory for a period not to exceed ten years and, following notice and hearing, may by resolution extend the agreement for subsequent periods not to exceed ten years each.
Notice of a hearing shall be served on the board, and a copy of the agreement and a copy of any resolution extending an agreement shall be filed with the board within thirty days of enactment.
If such an agreement is in force, the board shall dismiss a petition or plan which violates the terms of the agreement.
1. “Following notice and hearing” All descriptions and maps were speculative in 1990. In 1990, the only place that Highway 65 or the “future relocated” intersected the Des Moines river was at SE 14th street.
Legal descriptions are an important part of a[n]… annexation proceeding because they are relied on by property owners, the approving authorities, and the public. Incorrect descriptions can cause significant problems in annexation proceedings. Gorman v. City Dev. Bd. , 565 N.W.2d 607. [The Supreme Court] conclude the … application did not satisfy the reasonable objectives of the statute. It did not give notice as to the property under consideration…If a small error causes significant problems, the statutory requirements are not satisfied. Id. Here, the error occurred in the… original written request. It was substantial and was not corrected until after both the City and the Board had approved the annexation. Id. The right of way was not determined until Jan. 1991.
The Board also argues the application is in substantial compliance with section …because the enclosed map contains a correct description of the property. [The Supreme Court] disagree. It is of central importance to the entire annexation proceedings that the legal description of the area to be annexed be sufficient to identify the affected property. …[A] city is required to publish notice of the application… prior to any action by the City Council on the application … Clearly this requirement of published notice implies a requirement that the territory be legally described. Further… notice was statutorily required. Here the description relied upon throughout the proceedings, including that published in the newspaper was incorrect. Thus there was not proper notice to the public and other potentially interested parties… id. (The 1990 map was incorrect and void)
To make matters worse, each city’s published notice disagrees on directions from the undefined line and the subsequent council resolutions disagree with their own published notices and each others. Arguendo if there is any merit in the speculative line, a person trying to harmonize notice and resolution would have investigate all present and possible locations of Highway 65 at the Iowa DOT and then choose one of the possible intersections, to match the notice of Carlisle with the resolution of Des Moines and the notice of Des Moines with the resolution of Carlisle and then decide which is in accord with the prefatory paperwork all of which voids due process. “Due process of law does not necessarily mean judicial proceedings in all cases, but it never means less than some prescribed course of legal proceedings in which the person adversely affected shall have an opportunity to be heard and to resist if he be so advised.” State v. Osborne et al. 154 N.W. 294 (emphasis added) It is absurd to contend the published gibberish can fulfill notice and hearing requirements. Claims of substantial compliance are fraudulent and prejudicial to the interests of the plaintiff.
2. “May by resolution agree”: This power (§4.1 (30)c) and mode of execution are edicts. The city’s resolutions do not agree upon simple compass directions from a void “line of demarcation”(as set out above). Is Des Moines’ or Carlisle’s resolution correct? In cross combination which published notice is correct? What was agreed upon? Discordant resolutions do not minimally comply with §368.4 under which only enactment by resolution carries the weight of law. Nor does any resolution agree with the required published notice which must void one or the other. Claims of substantial compliance are absurd, fraudulent and prejudicial to the plaintiff.
3. “To refrain from annexing”: in order to be consonant with the statutory title, a §368.4 agreement cannot declare “Des Moines will annex this side and Carlisle will annex that side” as this “moratorium” does. “There can be no incongruity between statute and its title, which must suggest matters covered thereby. Chicago, R.I. & P. Ry. Co. v. Streepy, 224 N.W. 41 (Iowa1929) This “moratorium” stipulates annexation of everything (without description) in violation of Art. III §30. Furthermore, in paragraph 4. of the prefatory paperwork the cities “agree” to directly interfere with rural citizens rights. None of which complies with §368.4. Claims of substantial compliance are fraudulent and prejudicial to the interests of the plaintiff.
4. “Specifically described territory”: the Legislature requires more than a speculative description of single line that may, or may not, someday exist. Testimony of the “lines” location could never be resolved since any starting point in 1990 would have moved with the mud of the river bank if ever an x marked the spot. The fraudulent “line” is so absurd that no person could locate it in 1990 or 7 years later and is the antithesis of compliance. “If a small error causes significant problems, the statutory requirements are not satisfied.” Gorman v. City Development Bd. 565 N.W.2d 607, 610 (Iowa 1997)
In absurd contravention of §368.4, the defendants contend that the insubstantial “line of demarcation” specifically describes territory. Area measure requires length and width yet here not even a line is defined. A line has no area and needs at least two points to be defined which is absent here.
“”Specifically” means in a specific manner; explicitly, particularly and definitely.” Straton v. Hodgkins, 155 S.E. 902
Ambiguous adj. 1. Open to more than one interpretation: an ambiguous reply. 2 Doubtful or uncertain. Syns: ambiguous, equivocal, obscure, recondite, obtuse, vague, cryptic, enigmatic. American Heritage College Dictionary Third Edition
The Court incorrectly applied the law in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) declaring: “the moratorium agreement itself did provide a somewhat ambiguous description of the land in question. However, when combined with the maps provided…”(emphasis added). §368.4 requires “specifically described territory” and §355.9 requires more than an ambiguous description; ambiguous and specific are antonyms. The Court contravened Gorman by contending that a map rectifies the errors of description, in that case the disqualified map was drawn from an identifiable description, in the instant case the map was based on pure speculation of what may or may not occur. This description failed to comply with §368.4 or §114A.9 in 1990. Absurdly this description does not define anything in Polk County. Claims of “substantial compliance” with §368.4 are fraudulent and prejudicial to the interests of the plaintiff.
5. Notice of a hearing shall be served on the board: The legislature mandated that the CDB be served with notice of a §368.4 hearing, imposing it as a duty pursuant to §4.1 (30)a
§368.4 requires notice upon the CDB before a moratorium attains minimal compliance. Subject matter jurisdiction over the Des Moines Carlisle §368.4 moratorium was not established by either cities and this fatal defect cannot be cured “ex post facto” by the CDB, or the Courts since it is void. A complete lack of compliance cannot undergo a metamorphosis into “substantial compliance” thus such claims are patently fraudulent and prejudicial to the interests of the plaintiff.
6. “A copy of the agreement and a copy of any resolution extending an agreement shall be filed with the board within thirty days of enactment.”: No date of filing is indicated by either city or the CDB. The defendants and this court routinely dismiss untimely filings but here an unknown time of 8 months or 8 years is ignored. Claims of compliance are fraudulent and prejudicial to the interests of the plaintiff.
Summation
At great prejudice to the plaintiff, both the CDB and AG claim “substantial compliance” when not one contacted requirement or duty of §368.4 has been met by either city, clearly making those claims fraudulent. This validation is an obscene distortion of the ruling : “failure to comply with every word of our annexation statutes is not fatal. Substantial compliance with prescribed procedural law is sufficient….” City of Des Moines v. City Dev. Bd., 473 N.W.2d 197 (Iowa 1991) Clearly this moratoriums contravention of every premise of §368.4 must be fatal! “[I]f the agency action is constitutionally infirm for want of proper notice at the inception of the proceedings, such action does not gain validity because of the passage of time. Miller v. Farmers Coop 176 N.W.2d 832, 834
The Defendant’s had a simple duty; verify compliance with two sentences of a three sentence statute and Chapter 355 (114A). In 1990 there was no compliance with §368.4 to allow the CDB to declare the agreement valid. To contend otherwise ignores all evidence of record as if we’ve all jumped through the looking glass with Lewis Carrolls “Alice”. Absurdly, when all proof indicates no compliance was achieved the defendants persistently claim substantial compliance which is clearly fraudulent and an abuse of discretion.
The Des Moines Carlisle moratorium never flirted with minimal statutory compliance in 1990 and was thus void from that time forward.
II. The CDB and Courts are without authority to enforce a void agreement. Jurisdiction to enforce an agreement be claimed when it was not established as statutorily mandated. Alternatively jurisdiction in Judicial review of Agency Action was removed by codification of §368.22.
Original subject matter jurisdiction:
The chain of procedural §368.4 jurisdiction only begins with statutory compliance. The CDB and Courts have jurisdiction to enforce an agreement only after cities have complied with the statutory mandates. Published notice, service of notice upon the CDB, valid descriptions pursuant to §355.9, agreement by resolution, and timely filing were never complied with as outlined elsewhere thus voiding any ruling by the CDB or Court premised upon an invalid moratorium.
“If agency action is constitutionally infirm for want of proper notice at inception of proceedings, such action does not gain validity because of passage of time; agency’s action is “state action” within Fourteenth Amendment, and is thus subject to rule that action which is void under Fourteenth Amendment may be challenged at any time. U.S.C.A. Const Amend 14 Helmers v. Altruck Freight Systems 436 N.W.2d 39 (emphasis added)
In chapter 368, only the CDB has jurisdiction over rural areas beyond the bounds of a “city”. §362.2 (4) specifically excludes “a county, township, school district, or any special-purpose district or authority”. Thus a city cannot establish jurisdiction over rural areas without actual compliance with §368.4. The CDB could not perform its basic function of overseeing the execution of the 1990 agreement because they were never served with notice, thus jurisdiction was not established in the legislatively prescribed manner. This “agreement” was done without mandated precedent agency jurisdiction and is thus void.
This annexing moratorium was improperly validated. “Before it can approve an annexation application, the Board must determine whether there is substantial compliance with the statute. It can only do this by exercising its jurisdiction and examining the applications. If the application does not substantially comply with statutory requirements, the Board must deny the application. Gorman v. City Development Bd. 565 N.W.2d 607 (Iowa 1997) “Care must be taken to distinguish between jurisdiction of the subject matter generally and jurisdiction of the particular subject of the controversy. City of Clinton v. Owners of Property, etc. 191 N.W.2d 671 at 677 (Iowa 1971.
The defendants absurd “assumption of jurisdiction” over the agreement is meritless. “if the agency action is constitutionally infirm for want of proper notice at the inception of the proceedings, such action does not gain validity because of the passage of time. Miller v. Farmers Coop 176 N.W.2d 832, 834
Insufficiency of Courts jurisdiction; obtaining or retaining
Without precedent jurisdiction the court does not obtain, and cannot “create” jurisdiction to enforce a void moratorium which does not become “valid” due to the passage of time. ( see Helmers v. Altruck Freight Systems 436 N.W.2d 39; Miller v. Farmers Coop 176 N.W.2d 832, 834)
Jurisdiction in administrative appeal.
All substantive issues, specifically constitutional issues, of the case at bar were removed from the jurisdiction of Iowa Courts in judicial review prior to the ruling in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) Iowa Code §368.22 was amended by 1998 Acts, ch 1202, §§40, 46, removing jurisdiction of the issues in this case through exclusion of §§17A.19 (9), (10),(11) .
Though this codicil appears to render §368.22 unconstitutional and absurd on its face, it was the law at the time of ruling in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) and the court, in citing that statute, did not decide otherwise. “In contrast to substantive legislation, procedural legislation applies to all actions, those that have accrued or are pending and future actions.” Dolezal v. Bockes, 602 N.W. 2d 348 (Iowa 1999).( see also Sisco v. Iowa-Illinois Gas and Elec. Co., 368 N.W.2d 853 (Iowa 1985)).
Codicil of §368.22 predated any ruling in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) by more than a year thus any direct or inferred ruling was void coram non judice. “… Claim preclusion does not apply if the claim could not have been presented in the first action based upon subject matter jurisdiction limitations.” Penn v. Iowa State Board of Regents 577 N.W.2d 393,401
summary:
Validation of the Des Moines Carlisle moratorium fails on jurisdictional grounds. All published notices are void due to deficient descriptions as set out under section I. In addition the failure to serve notice upon the CDB by both cities also deprives the CDB and subsequent entities of jurisdiction. The Defendants and the Courts cannot cure the deficiencies of the cities by declaring “substantial” that which does not exist nor claim subsequent jurisdiction where prior jurisdiction was absent.
Furthermore, the Iowa legislature removed substantial portions of the courts jurisdiction in administrative appeal pursuant to §368.22 through codicil of that statute. It is absurd to state that where no jurisdiction existed, it was subsequently removed but in this case, due to 1999 codicil of §368.22, preclusion cannot exist because of jurisdiction, not once but twice removed.
III. Due to lack of jurisdiction, no Issue or claim preclusion exists because any ruling used to establish preclusion is “coram non judice” or, in the alternative, no issue of this case has been precluded by ruling in any prior case or; in the alternative the issues of this case are exceptions to the rules of preclusion.
SCOPE AND STANDARD OF REVIEW.
“proof of estoppel must be by clear and convincing evidence” Fencl v. City of harpers Ferry 620 N.W.2d 808 (Iowa 2000)
ARGUMENT:
In the alternative to the arguments below, because the 1990 Des Moines – Carlisle moratorium is void as outlined above, the ruling in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) is void and cannot provide any basis for preclusion.
Where agency’s refusal to issue declaratory ruling was appealed to district court, not by invoking its original jurisdiction, but invoking its appellate jurisdiction, subsequent original action in district court for declaratory or other appropriate relief would not be barred by failure to seek administrative remedy. I.C.A. §§ 17A.19, subd. 1, 17A.9 Campbell v. Iowa Beer & Liquor Control Dept. , 366 N.W. 2d 574. Anderson v. CDB 631 N.W.2d 671(Iowa 2001) upon which the state based its preclusion claims invoked the appellate jurisdiction of the courts. The case at bar invokes the original jurisdiction of the court. The CDB has refused to issue a declaratory ruling of how this moratorium achieves compliance.
The flaw in the defendant’s argument, while alternatively assuming the other prerequisites for preclusion exist, is that the issues presented in this declaratory suit are not identical to the issues of Anderson v. CDB 631 N.W.2d 671(Iowa 2001) . See Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa1981) (one prerequisite for application of preclusion is that “the issue concluded must be identical”). This court has declared, “‘the issue decided in the prior trial [must be] precisely the same issue presented in the pending action.’” State v. Seager, 571 N.W.2d 204, 208 (Iowa 1997)
In Anderson v. CDB 631 N.W.2d 671(Iowa 2001) , Iowa Code chapter 17A as restricted by §368.22 controlled. The Courts were restricted to subject matter initially presented before the CDB (see Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs., 613 N.W.2d 674, 676 (Iowa 2000); See also Iowa Code §§17A.12, 17A.14). §368.22 limits the court in administrative appeal to reversal or remand of a decision of the board. The Anderson v. CDB 631 N.W.2d 671(Iowa 2001) decision was the determination that Anderson et.al could not, pursuant to §368.11, involuntarily annex Carlisle while the moratorium was in place. Subsequent to the filing of Anderson v. CDB 631 N.W.2d 671(Iowa 2001) all issues encompassed by §17A.19 (9), (10), (11) were removed from the purview of the courts in administrative appeal.
With this statutory framework in mind, the court must examine the decision rendered in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) to see if the issues were identical.
In that case the court ruled that substantial compliance was met but not how; here the plaintiff seeks, pursuant to Ia.RulesCivProc. 261, 262, 263, declaration of how compliance was achieved.
In that case the court made no ruling of the proper statutory operation of §368.4 or its application which is specifically sought in this case.
In that case the court, without jurisdiction due to exclusion of §17A.19 (10)a, and utilizing an incorrect standard of review, touched upon non existent claims of U.S.Constitution Amen V and XIV and disposed of them with non-germane citation of precedent and errors in the interpretation of the record; here the issues are an entire spectrum of state and federal constitutional abrogation and infringement which now include U.S. Const Amen. XIV.
In that case, the issue of separation of powers was not raised and the court would have been precluded from ruling due to §17A.19 (10)exclusion; in this case the separation of powers issue arises
Thus, the issues in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) are not precisely the same as the issues of this case nor were they addressed within the courts jurisdiction or res judicata due to the fraudulent claims of the Defendants as set out above. Hence one of the four elements needed to invoke preclusion has not been met. (see Hunter v. city of Des Moines 300 N.W.2d 121 (Iowa 981))
The second prerequisite for preclusion (See Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa1981)) is that the issue must have been raised and litigated in the prior action. Obviously, if the issues were not identical then they could not have been litigated in the prior action.
The Attorney General plead in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) that some tangential issues of this case had not been preserved for judicial review (Supreme Court final brief of CDB pages 20 - 24) Additionally, those issues were removed from the courts jurisdiction during the course of that administrative appeal. “That which is decided within the issue made by record in a case is “res judicata” but anything beyond is “coram non judice” and void, since courts do not have power to decide questions except such as are presented by the parties in their pleadings.” Riggs v. Moise, 128 S.W.2d 632, 635, 344 Mo. 177. It is arbitrary, capricious, and prejudicial for the AG to plead the exact same record as coram non judice in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) and then res judicata in the case at bar, a virtual declaration that its pleadings in one case are perjurious.
If, according to Hunter v. City of Des Moines, any issue of this case were material and relevant to the disposition of Anderson v. CDB 631 N.W.2d 671(Iowa 2001) or the determination in the prior action was necessary and essential to the resulting judgment then that judgment is null and void due to the jurisdictional issues set out above. The cities statutory failures and, or alternatively, the restrictions of §368.22 fatally taints all jurisdiction and removes any foundation for preclusion, because such “rulings are “coram non judice” or “acts done by a court which has no jurisdiction, either over the person, the cause, or the process.” Secrest v. Galloway Co., 30 N.W.2d 793, 797. Where a suit is brought and determined in a court which has no jurisdiction in matter, it is said to be coram non judice, and judgement is void. (see In re Lehahan’s Estate, 46 N.W.2d 352,354.)
Alternatively preclusion fails because the Court failed to review the record “de novo” on constitutional grounds in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) The court adopted the defendants claims of “substantial compliance” with no evidence in record to support those claims and without jurisdiction. “The court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should not be held precluded.” Penn v. Iowa State Board of Regents 577 N.W.2d 393,.
The absence of jurisdiction and the fact that Defendant’s collusive claims of “substantial compliance” are fraudulent deprives them of res judicata shelter. “The doctrine of “res judicta” is that an existing final judgment rendered on the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of the rights, questions, and fact in issue, as to the party and their privies, in all other actions in the same or other judicial tribunal or concurrent jurisdiction In re Ramsay’s Estate, 35 N.W.2d 651 (Iowa 1949) (emphasis added).
EXCEPTIONS TO PRECLUSION.
Before one can be barred or “estopped” by “res judicata”, he must have had full legal opportunity for an investigation and determination of the matter. Kunkel v. Eastern Iowa light & Power Cooperative 5 N.W.2d 899 (Iowa 1942). To sustain the Defendant’s fraudulent claims of “substantial compliance” through preclusion without legally determining the basis for those claims robs the plaintiff of all opportunity to investigate the matter. Legal privileges should not be determined upon how well government can hide deficiencies by shouting “SUBSTANTIAL COMPLIANCE” without ever being required to produce evidence or proof of it.
In the alternative, this court has recognized exceptions to preclusion. Those applicable here have been inserted between the relevant segmented citation of Hunter v. city of Des Moines 300 N.W.2d 121 (Iowa 1981) (italicized for identification.)
Although an issue is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
“The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment by an appellate court in the initial action.”
There is no Iowa appellate review of the Supreme Court decisions. A petition for rehearing pursuant to Supreme Court Rule 8.2 was filed in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) but is at the discretion of the court, not a matter of law.
“The issue is one of law and (ii) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of laws; or”
The intervening codicil of §368.22 limited the scope and standard of review the Supreme Court could apply in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) rendering any ruling in that case upon the issues of this case coram non judice, alternatively, the diverse applications of §368.4 moratoriums filed between 1998 and 2001 warrant a declaration by the Court as to the proper operation of §368.4 in the interest of judicial economy.
“A new determination of the issue is warranted by differences in the quality or extensiveness of the procedure followed in the two courts or by factors relating to the allocation of jurisdiction between them; or”
The Court was hindered by §368.22 and 17A in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) by exclusion of relevant material issues not in the record of the CDB. That action was an administrative appeal, only under the original jurisdiction of the courts can a declaratory ruling be sought since both the AG and CDB have refused to issue declaratory ruling and the AG has argued the issues of this case were excluded in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) but precluded in the case at bar.
In Anderson v. CDB 631 N.W.2d 671(Iowa 2001) the court limited it scope and standard of review to the restrictions of §368.22, review of the district courts application of law and to the issues addressed by the agency, even while breaching constitutional questions. The proper standard is that the “Supreme Court reviews constitutional issues de novo.” State v. Izzolena 609 N.W.2d 541 (Iowa 2000)
“The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or”
§368.22 excludes §17A.19 (8), thus lifting the burden from the plaintiff and placing the burden of proving absence of prejudice and substantiating the validity of agency action squarely upon the CDB. However, the Defendants and Court have continuously placed the burden upon the plaintiff. The CDB’s pleadings in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) evaded any burden beyond fraudulent claims of substantial compliance. The burden now rests solely upon the defendants since only they can substantiate their claims of “substantial” compliance.
“There is a clear and convincing need for a new determination of the issue (i) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action,” “(iii) because the party sought to be concluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication of the initial action.”
(i) All persons surrounding Des Moines, among others, are being subjected to the unconstitutional application of §368.4 and suffer the same abrogation and infringement as the plaintiff though they may not yet know it or do not have the capacity to respond. The inequitable application of §368.4 will precipitate court actions due to municipalities increasing usage of antagonistic and speculative involuntary annexation of rural areas.
(iii) The blatant fraud of the Defendants substantial compliance claims, as outlined elsewhere, and the Court’s failure to review the issues de novo, (which would have revealed the absence of supporting evidence) coupled with the administrative review jurisdiction of the court prevented adequate opportunity for the issues of this case to be adjudicated. Here the plaintiff is asking “how” compliance was attained, not “if” it was attained.
Based upon the defendant’s compliance claims the Supreme Court misconstrued pleadings to infer that notice had been served upon the CDB by one city in 1990. The CDB has knowingly perpetuated this misrepresentation with claims of substantial compliance. The AG has a responsibility under Iowa Code of Professional Responsibility for Lawyers EC 7-14 to seek justice and to develop a full and fair record. The AG here has allowed cogent errors within the ruling of Anderson v. CDB 631 N.W.2d 671(Iowa 2001) to exist without seeking a correction of the record or a seeking a rehearing as duty and rule require.
The “maps” of the agreement relied upon by the court to remedy the faulty published notices, faulty resolutions and failure to agree by the cities and the “ambiguous” description of the area (as opposed to the mandated specific description) in 1990 are void pursuant to §355.9 and not based on fact (see Gorman v. City Dev. Bd.). The CDB and AG knowingly misrepresented and maintained this as substantial compliance. Supreme Court may give weight to an agency’s interpretation of the statutes it administers, but is not bound by the agency’s legal conclusions and is obliged to correct the misapplication of the law. Berger v. Iowa Finance Authority, 593 N.W.2d 138 (Iowa 1999) (emphasis added)
Summary:
Preclusion fails because the issues of this case are not precisely the issues of Anderson v. CDB 631 N.W.2d 671(Iowa 2001) ; or alternatively because the issue were not raised and litigated in the prior action; or alternatively, if any issue of this case were material and relevant to the disposition of, or the determination was necessary and essential to the resulting judgment in Anderson v. CDB 631 N.W.2d 671(Iowa 2001) then that judgment is null and void due to the jurisdictional issues set out elsewhere rendering it coram non judice; or alternatively the issues of this case meet the criteria on any number of the grounds set forth in Hunter v. CDB for exceptions to preclusion.
IV. The Statutory Scheme Is Unconstitutional as Applied.
SCOPE AND STANDARD OF REVIEW.
“In interpreting statutes, court’s goal is to ascertain and give effect to legislative intent.” State v. Ceron, 573 N.W.2d 587
Supreme Court reviews constitutional issues de novo.” State v. Izzolena 609 N.W.2d 541 (Iowa 2000)
It is “not only the right of the courts but also their duty to consider such a question, and to declare invalid an unconstitutional statute. This obligation of the courts to act exists no matter how desirable or beneficial the attempted legislation may be, and notwithstanding any fiat of the legislature that the act is constitutional. The duty exists whether there is a congenital defect in the statute or one that has come about through improper usage” 16 C.J.S. Constitutional law §86 (emphasis added). (see also Sperry & Hutchinson Co. v. Hoegh, 65 N.W.2d 410 and Patterson v. Iowa Bonus Board. 71 N.W.2d 1.)
ARGUMENT:
The defendants and Courts have consistently cited Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 and City of Monticello v. Adams, 200 N.W.2d 522 (Iowa 1972) as argument that municipal boundaries may be altered without the consent of a territory’s residents. This argument directly contravenes the legislative intent of §368.6 and the §368.7 §368.8 and §368.11 provisions for the “residents” while also disregarding the Iowa Courts more recent ruling in Des Moines v. City Development Bd. 473 N.W.2d 197 (Iowa 1991) in which the court declared: “… the legislative scheme upon which the Muscatine case was based has since been repealed and replaced. At the time we decided the Muscatine case, Iowa Code chapter 362 (1973) regulated the involved processes. Today, Iowa Code chapter 368 regulates those processes.” The Court therein recognizes that “Hunter v. Pittsburgh” and “City of Monticello v. Adams” which predate Chapter 368 are no longer germane to Iowa annexation procedures.
The state is allowing the cities a void (see Iowa Const. Art. XII §1) application of statute which requires the agreeing parties to “refrain from annexing” in consonance with legislative intent, the title of the act, and its derivation. “The express mention of one thing in a statute implies the exclusion of another. Lacina v. Maxwell, 501 N.W.2d 531, 533 (Iowa 1993). It is obvious under §368.6 that the legislature did not intend, and was constitutionally proscribed by Art. III §30 from providing an annexing moratorium law that provides for the cities to establish a more acrimonious form of involuntary annexation than §368.11. Supreme Court is required to construe statutes to conform to the legislative intent, not a policy which was not within the collective judgment of legislature. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 367 (Iowa 2000). “Supreme Court is not free to adopt a particular policy not supported by the language or history of a statute. Id. Nowhere in the history of §368.4 is codicil to enable the preemptive division of rural areas by cities as a precursory step to involuntary annexation.
In divining the legislative intent in order to facilitate it, the court need only read §368.6 which, by omission, presumes the wishes of the cities, CDB, and AG as invalid by requiring their use of §368.11 with an accompanying increased burden of proof :
§368.6. Intent. It is the intent of the general assembly to provide an annexation approval procedure which gives due consideration to the wishes of the residents of territory to be annexed, and to the interests of the residents of all territories affected by an annexation. The general assembly presumes that a voluntary annexation of territory more closely reflects the wishes of the residents of territory to be annexed, and, therefore, intends that the annexation approval procedure include a presumption of validity for voluntary annexation approval.(emphasis added)
It is absurd to contend that the Iowa General assembly would express such intent and then allow §368.4 to annul that intent. Here both voluntary and involuntary annexations have been thwarted by an illegal scheme. “A statute must not be given an interpretation that could possibly result in an absurdity.” State v. Perry, 69 N.W.2d (Iowa 1955) . “In interpreting statutes, Supreme Court is obliged to seek out intention of legislature and to avoid placing on statutory language a strained, impractical or absurd construction.” Cedar Memeorial Park Cemetary Ass’n v. Personnel Associates, Inc., 178 N.W.2d 343 (Iowa 1970)
In Anderson v. CDB 631 N.W.2d 671(Iowa 2001) the court failed to ascertain “de novo” if procedural due process had been satisfied which compounded the fraudulent substantial compliance claims of the Defendant’s “Illegality exists within the meaning of the rule when the findings upon which the board based its conclusions of law do not have evidentiary support or when the court has incorrectly applied the proper rule of law”. Fisher v. Chickasaw County, 553 N.W.2d 331, 334 (Iowa 1996) “Courts are not free to ignore the statutory language in favor of what the statute should provide.” Patton v. municipal Fire & Police retirement systems of Iowa 587 N.W.2d 480 (Iowa 1998)
§368.4 was created during complete revision of the “city code” of Iowa. “Fact that statute was amended as a part of complete revision of code lent less support to proposition that change of meaning was intended than it did to proposition that change reflected only economy of words or style, particularly where the section in question was passed without comment. Kelly v. Brewer 239 N.W.2d 109, 115 (Iowa 1976). With no evidence of intent to alter the meaning §368.4 by use of different language or debate, the courts must examine the prior enactment to determine the meaning of “moratorium” (see Kelly v. Brewer at 115) It is thus obvious that an “annexing moratorium” pursuant to §368.4 has the same operation and effect as the prior 1973 §362.26 (7).
The scheme employed by the moratorium, affecting the plaintiff, the plaintiff’s home and the plaintiff’s rights and privileges violates, abrogates or infringes the Iowa Constitution as enumerated below:
Art. I §1 fundamental rights:
“defending liberty”; When §368.4 imposes the specific directive that “If such an agreement is in force, the board shall dismiss a petition or plan” it creates a liberty interest protected by the Fourteenth amendment and Art. I §9 of the Iowa Constitution procedural due process guarantees (see Bagley v. Rogerson, 5 F.3d 325) “State-created liberty interest arises in situations in which state has placed substantive limitations on exercise of official discretion” Clark v. Brewer 776 F2d 226; see also Oldham v. Chandler -Halford, 877 F.Supp. 1340.
Here the right to defend liberty has been interfered with by the AG and CDB. First by contending that the unique wording of the “agreement” mandates dismissal of both §368.7 and §368.11 petitions tendered by the plaintiff. Secondly by abandoning statutory due process and adopting fraudulent claims of substantial compliance. The CDB has failed their duty to execute the laws of Iowa and abrogated the liberties of the plaintiff. The AG has failed the duty of the courts to ensure that the CDB properly executes those laws.
“possessing and protecting property” : These rights of the Plaintiff have been abrogated by the CDB’s and AG’s fraudulent validation of a void moratorium and scheme. The petitioner and his neighbors have attempted to annex to Carlisle which has less liability, a less indebted fiscal future, a will of self preservation as opposed to dissolution through county merger, an improving rather than deteriorating infrastructure and a lack of city council antagonistic apathy. The moratorium has been used to bar the plaintiff and his neighbors from legally transferring jurisdiction of their property to Carlisle which they feel will provide security and happiness. The petitioner has the legal privilege to invoke §368.7 that cities do not possess, or §368.11 on equal footing with cities, to transfer one of the attributes of his property to the City of Carlisle. “Depriving an owner of property of one of its essential attributes is depriving him of his property within the constitutional provision. To take from property its chief element of value and deny to the citizen the right to use and sell or transfer it freely in any proper and legitimate method is as much depriving him of his property as if the physical property itself were taken. State v. Osborne 154 N.W, 294, 300. (Emphasis added) Based upon the “moratorium” the plaintiff has been barred from defending his property as, arbitrarily and absurdly, all other Iowans not under moratorium agreements or under differently worded ones have the privilege to do.
“pursuing and obtaining safety and happiness”: This right has been abrogated. Des Moines has created multiple nuisances on city property across from the plaintiffs home, that city has demonstrated an inability to provide rural fire suppression, that city’s council was so antagonistically dismissive of the plaintiffs complaints about the city’s acts of nuisance that councilman Flagg recalled him to the podium during an Oct 19,1998 council meeting to apologize. The right to pursue and obtain does not exist under the illegal scheme with which the defendants have barred the plaintiff’s exercise of statutory privileges with which he could otherwise pursue and obtain safety and happiness.
Art. I §2
“protection, security and benefit” under this moratorium does not accrue to the citizens, it has been usurped by the government created to provide it. The illicit scheme fosters cities avarice for rural Iowans property no matter how shabbily they provide services or treat rural citizens. The cities and defendants benefit themselves by rendering the legislatures intent (§368.6) moot, and benefit themselves and secure their goals by usurping the prerogative of the general assembly while transgressing constitutional elements such as Art. III §§ 29, 30 which specifically forbid such acts. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 1 Cranch, 163, 2 L.Ed. 60.
Art. I §6 The classification of rural citizens and the granting or revocation of privileges and immunities are without statutory basis and prohibited by constitutional restriction. “As the legislature cannot pass any special act for the incorporation of cities and towns, it is prohibited from passing any act having for its object the amendment of such an act”. Town of McGregor v. Baylies 19 Iowa 43 .
§368.4 provides no classification. The courts have declared that the classification and purpose thereof must be set out in the act. (see Keefner v. Porter, 293 N.W. 501) Legislative classification must be reasonable and based on some substantial distinction Knudson v. Linstrum 8 N.W. 2d 495, 499 . Classification by the legislature must rest on differences between those included and those excluded . Id at 499. Legislative classification is primarily a question for the legislature, which exercises a wide discretion in determining the class to which an enactment is to apply. Id at 500.
The classification as being on one side of an arbitrary “line of demarcation” is not based upon substantial distinction, nor set out in any act. When this absurd division was made in 1990 (or was it 1991, 1993 or 1997) no basis to do so existed as outlined above. The intersection of a highway and a river, at some time in the “future”, if ever built, is the epitome of arbitrary. “If classification is absurd, it cannot be sustained against state privileges and immunities clause” Koch v. Kostichek 409 N.W.2d 680, 684
To illustrate the capricious nature of this “line” the court need only decide how annexation of the plaintiff’s property at a time preceding construction of the highway would have been dealt with. Choosing a street is arbitrary; A line that may, or may not, be built in the future is capricious. “To offend this Iowa constitutional provision, the classification must be without a reasonable basis in fact, purely arbitrary and capricious.” Id.
The “classifications” of the moratorium are without basis because there is no substantive difference between the same person dependent upon where, or if, the Iowa DOT builds a road. “The description will be sufficiently certain when from it the property can be identified either by a person who is familiar with the locality or by an actual survey.” City of Clinton v. Owners of Property, etc. 191 N.W.2d 671 at 674
A “line” has a beginning and an end, however in 1990 the “line of demarcation” had no beginning and thus could not be “drawn”. The “map” had no basis in fact, law, or common sense. This “line” violated §355.9 of the Iowa Code.
A “description” must allow a person familiar with the area or an actual survey to comprehend the territory in question. A “specific description” must include more than a “description”. The cities classify and grant privileges and immunities based upon where some person frivolously dragged a crayon across a map in poor prognostication of DOT actions in the future. No plat or survey existed until 1991 to identify the right of way of the Highway and river with the centerline being set at a later time, and the designation as Highway 65 was not done until December 1997. Surveying, and the children’s game of “connect the dots” requires a point to first put pen to paper whence all other lines are derived; this moratorium fails both statutory requirement and fundamental need.
West Des Moines’ agreements demonstrate the arbitrariness of statutory scheme under guise of §368.4. The 1998 Cummings moratorium sets aside specific territory that no city will annex in accord with §368.4. The 2001 Waukee agreement divides the territory with a “line”, specifying the area each city is to incorporate without any interference by the property owners and residents ( in violation of Art. III §30).
The test for equal protection has been previously set forth by this court as follows: [T]he classification must be sustained unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest. …the classification will be upheld if any state of facts reasonably can be conceived to justify it. State v. Bell, 572 N.W.2d 910, 912 (Iowa 1997). Cases involving fundamental rights or certain suspect classifications impose on the state the duty to show a compelling state interest. State v. Kramer 235 N.W.2d 114, 116. There is no state interest in the illegal classifications, only the speculative avarice of cities in violation of §368.17 (4) or enactment of agreements amounting to special laws for the incorporation of rural areas which is forbidden by Art. III §30 and to evade the intent of the legislature while depriving rural citizens of fundamental rights among others; none of which are legitimate state interests.
There is absolutely no distinction between the circumstance of people living between Des Moines and Carlisle and people between West Des Moines and Cummings. Additionally there were no distinctions between the people on either side of the “line” in 1990 since the “line” did not exist in 1990. The cities established arbitrary criteria for the line and the Defendants allowed them to proceed without oversight, validation of process, statutory compliance or administrative rules. “The legislature may adopt certain procedures for one class and different procedures for another so long as the classifications are reasonable, and similarly situated persons are treated equally.” Knowles v. Iowa Dep’t of Transp., 394 N.W.2d 342, 344 (Iowa 1986). (emphasis added) A single person, who’s property is divided would be treated inequitably and would arbitrarily belong to two classes A person whose property was one day east of the line, but west the following day would be treated inequitably without notice by the same moratorium.
There are many classes of people, as the state is allowing the law, with privileges and immunities dependent upon the wording cities use or how and where the DOT acts. Those outside moratorium and citizens within certain §368.4 moratoriums have full constitutional rights and privileges. Others within a 368.4 agreement using a “line” have full privileges if they are on the same side of the line as their community yet have no immunity from annexation except by the opposite side city. Those with the proper statutory application have immunity from annexation. Yet another class, to which the plaintiff belongs, has had constitutional rights and protections abrogated and statutory privileges revoked. Immunities, privileges, protections, rights - fundamental and otherwise, all depend upon how cities word an agreement without statutory basis. All that is required under the guarantee of equal protection is that similarly situated litigants be treated equally. Matter of Bishop, 346 N.W.2d 500 (Iowa 1984).
Art. I §9 In Gorman v. City Dev. Bd. , 565 N.W.2d 607, 611 the court held that “it is of central importance to the entire annexation proceedings that the legal description of the are to be annexed be sufficient to identify the affected property…”. The Court then recognized that “ a city is required to publish notice …”Id. and then declared, “Clearly this requirement of published notice implies a requirement that the territory be legally described” (Id.). “Here, the description relied upon throughout the proceedings, including that published in the newspaper, was incorrect” (id); The description of this moratorium is absurdly arbitrary and imaginary.
Gorman v. City Dev. Bd. Declared a map without a proper description does not meet statutory requirements. The AG and CDB and Court are not at liberty to discard the mandate of “specifically described territory” and adopt a speculative line, without bounds, indicated by a city planner dragging a crayon across the map of Iowa. “Legislative power rests in Congress and will of Congress as unambiguously expressed in a properly enacted statute cannot be amended or altered by regulation.” U.S. v. Maxwell, 278 F.2d 206
Contemporaneous to the Iowa Constitution, Morford v. Unger 8 Iowa 82 (Iowa 1859) (Iowa 1859) provides the proper perspective of how annexation was viewed. “[W]here the land is vacant, or a cultivated farm, occupied by the owner for agricultural purposes, and not required for either streets or houses, or other purposes of a town, and solely for the purposes of increasing its revenue, it is brought within the taxing power, by an enlargement of the city limits, such an act, though on its face providing only for such extension of the city limits, is in reality nothing more than authority to the city, to tax the land to a certain distance outside of its limits; and is, in effect, the taking of private property, without compensation, within the spirit and meaning of the constitution.” “ The extension of the limits of a city or town, so as to include its actual enlargement, as manifested by houses and population, is a legitimate exercise of legislative power, while an indefinite or unreasonable extension, so as to embrace lands and farms at a distance from the local government, is without authority.” (emphasis added)
This moratorium freezes rights and privileges of property owners for 10 years, reserving all annexation exclusively to the city assuming authority without regard to the its abilities or the residents needs or wishes. “Both federal and state constitutions preclude the government from asserting summary authority over the property of persons, and any deprivation of property must be accomplished in accordance with due process of law. 16B Am Jur 2d Constitutional Law §588
“An unconstitutional deprivation of property was established where a municipality effectively “froze” use of plaintiff’s land for 14 years without condemning the land in order to reserve it for future public improvements or condemnation, and thus the plaintiff was entitled to injunctive relief. Urbanizadora Versalles, Inc. v Fivera Rios, 701 F.2d 993
As outlined elsewhere, NO process of law was followed in the execution or enforcement of this moratorium. The plaintiff has been barred from the exercise of statutory privileges pursuant to §368.7 and §368.11 with these ramifications, the published notice of §368.4 is insufficient. Rural people have no need to read the “notices” of cities any more than they have the need to read the notices of any one of our 6 bordering states, thus a cities published or posted notice means naught to a rural resident and is insufficient under the moratoriums scheme to alert a person to investigate further. “When notice is required to be given to one to put him to taking measures for the protection or defense of his right or claims on penalty for neglect or of having them cut off, the notice must be such as to show on its face, both to him and to those required to act upon it, or to decide whether the requisite notice has been given, that it is intended to be notice to him. Any other rule would be fatal to due process, and leave questions of jurisdiction to conjecture.” In Re Lounsberry 226 N.W. 140,143 (Iowa 1929). In this case the description and maps of the prefatory paperwork, notice and resolutions do not reflect the circumstances that now exist, thus rendering moot any defense or support based upon the original description.
Art. I §20 In motioning for and ruling to dismiss the State has improperly removed any vehicle to petition for the redress of grievances. The scope of administrative appeal of Anderson v. CDB 631 N.W.2d 671(Iowa 2001) was severely restricted by §368.22. Preclusion obscures the truth which it is the duty of the defendants to bring forth, and eclipses that failure of duty which would be evident if the court would inspect the record which is empty of compliance. Though the Plaintiff is greatly aggrieved by this application of §368.4 the State apparently has abrogated the right to petition for redress.
Art. III §29 The title of §368.4 embraces only a moratorium on annexation. The preemptive division of territory, removal of rural Iowans rights and privileges and subsequent annexation is the antithesis of the statutory title of §368.4, further proscribed by Art. III §30. There can be no incongruity between statute and its title, which must suggest matters covered thereby. Chicago, R.I. & P. Ry. Co. v. Streepy 224 N.W. 41. Legislative acts must be construed consistently with their titles, and cannot be given any broader scope without rendering them unconstitutional. Siegel v. Chicago, R.I. & P. Ry. Co., 208 N.W. 78.
Art. III §30 The state is providing for the “selection of a fixed and definite territorial location, and a grant of individualized powers, not necessarily different in character from those to be found in other grants, but made up without reference to any other grant.”… “It is not the subject of the legislation, but the application sought to be made which must determine whether an act is general or special within art III §30, and hence if, in respect of its intended application, the act particularizes the place or places which are given corporate authority, it is special, but if the effect thereof is bring into a class all places similarly conditioned, then existing or thereafter to come into existence, in respect of which places the act is to be equally applicable, it is general” Eckerson v. City of Des Moines, 115 N.W. 177. “Under constitutional provision forbidding incorporation of cities and towns by local or special laws, provision for incorporation of such municipalities and for enlargement or diminution of the boundaries thereof must be made by a general statute applicable to all who meet the conditions of the statute.” State ex rel. Klise v. Town of Riverdale, 57 N.W.2d 63 (1953). (emphasis added) “Where a city acting under special charter has passed an ordinance which is void, because not authorized by it charter, and the legislature could not grant power to the city to pass the ordinance without violating Article 3 section 30, of the constitution which inhibits local or special legislation in certain cases, the legislature could not indirectly accomplish the same result by an act validating the void ordinance, and that an act passed for that purpose was unconstitutional. Stange v. City of Dubuque, 17 N.W. 518 (Iowa 1883) (In this case resolution, contra ordinance)
Art. XII §1 The Dissenting opinion in State v. James 393 N.W.2d 465 wrote: “What the majority seem to have forgotten is that the Iowa Constitution “shall be the supreme law of the state….”. The courts have accepted the claims of “substantial compliance” and citations by the Defendants without requiring an iota of proof which “is akin to praising the Emperor’s new clothes. If precedence is to have any value it must be based on a convincing rationale.” ID. The application of the statute is in question here yet; “if constitution and statute conflict, the constitution must prevail. Patterson v. Iowa Bonus Board 71N.W.2d 1 Here the Defendants are claiming that the their bipolar representation of the same record in two separate cases trumps any constitutional challenge the plaintiff can assert. In other words, it the position of the state that tangential court rulings, rules of civil procedure, and even illegal statutory interpretations trump the constitutional protections of the plaintiff and superlatively overrule the Iowa Constitution; what the executive and judicial branch can contrive and foster overpowers any check or balance upon them or the legislature so long as they can restrain and prevent review of their conduct to their own pleadings.
Art. III §1 Usurption of legislative power by AG and CDB:
The AG and CDB have usurped legislative power to alter the functioning of §368.4 and have violated the intent for that application which the legislature explicitly set forth in §368.6. Alternatively the defendants have allowed municipalities to usurp the powers of the legislature under guise of their purported authority.
Under one alteration of statutory application, the defendants are allowing creation of classes, the endowment of immunities, and revocation of privileges, all dependent upon city’s unique wording of a moratorium rather than statutory content. The defendants are allowing the usurpation of legislative powers that violate constitutional restrictions. “Legislative power” is the power to make, alter, and repeal laws and to formulate legislative policy…” In Interest of C.S., 516 N.W.2d 851 (Iowa 1994)
The CDB and AG have arbitrarily adhered to §368.4 ( 1998 Cummings—West Des Moines moratorium) or altered or allowed alteration of §368.4 ( 1990 Des Moines – Carlisle, 1995 Des Moines Altoona, 2000 West Des Moines – Waukee, among others). This divergent operation of the same statute is absurd, one imposes a moratorium upon annexation and the other imposes an illegal and unassailable license to involuntarily annex.
The Defendants are not statutorily enabled to violate Constitutional restrictions. “The legislature cannot do indirectly what it is inhibited from doing directly”. Stange v. City of Dubuque, 1883 17 N.W. 518, 519 (Iowa 1883)
§368.22’s exclusive review and subsequent suspension of §17A.19 (10) places actions of the CDB beyond opportunity of judicial determination of constitutional right. A construction of a statute which would deny all opportunity for judicial determination of a constitutional right is not to be favored, unless there is clear and convincing evidence that this was the intent of the legislature. However, if a statute is susceptible of no reasonable construction avoiding constitutional problems, the court is under a duty to nullify it. (see Smith v. Thompson, 258 N.W. 190 (Iowa 1934))
Cities transacting these agreements are endowed with statutory privilege which would be more properly cast as statutory restriction upon the exercise of powers. It is the absolute duty of the CDB to guarantee that cities function wholly within those restrictions to protect citizens from arbitrary actions of government. As a contingency against the CDB’s failure of that duty, it is the primary duty of the Judicial branch to stay the actions of the executive branch and subdivisions that would transgress those restrictions. Yet here there is an apparent covenant that the executive and judicial branches will discard the restrictions upon the legislature to facilitate the avarice of municipalities for the property of rural citizens.
V. The Iowa Attorney General is violating the separation of powers doctrine of the Iowa Constitution Art. III §1.
Jurisdiction and Scope of appeal:
When the case is tried in equity, our review is de novo. DeCoster v. Franklin County 497 N.W.2d 849 (Iowa 1993).
Supreme Court reviews constitutional issues de novo.” State v. Izzolena 609 N.W.2d 541 (Iowa 2000)
Whether an actionable duty is owed by a defendant to a plaintiff under a given set of facts is a question of law for Supreme Court Pierce v. Staley, 587 N.W.2d 484.
Separation of powers doctrine requires courts to leave intact the respective roles and regions of independence of coordinate branches of government Des Moines Register and Tribune Co. v. Dwyer, 542 N.W.2d 491 (Iowa 1996)
ARGUMENT:
The Court has clearly erred by asserting that the “ Attorney General is not a “Judicial officer” (see State ex rel. Turner v. Iowa State Highway Commission, 186 N.W.2d 141 (Iowa 1971), since the constitutional framers declared the contrary in 1857. The court cannot annul the constitution because it wants to adopt a particular policy not supported by the language or history of the constitution (see Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp. 606 N.W.2d 367) Mandatory constitutional provision should not be annulled by judicial pronouncement Smith v. Thompson, 258 N.W. 190 (Iowa 1934) Constitutional provisions are mandatory and apply to and govern people, as well as all government agencies, including Legislature. Id. There was no ambivalence about the nature of the AG at the Iowa constitutional debates which binds the Court: Attorney General - Iowa Constitutional Debates on Judiciary, Friday February 13th 1857 Page 478: (emphasis added)
Mr. Clarke, of Johnson. We have provided for the election of district attorneys, and I think it is better now to provide for the election of an attorney general. I, therefore, offer the following as an additional section:
"Sec 8. The general assembly shall provide by law for the election of an attorney general by the people."
Mr. Palmer. Is not that officer provided for by the report of the committee on the executive department?
Mr. Clarke, of Johnson. The attorney general is not an executive officer, but an officer of the judicial department. This is the proper place to provide for this officer, quite as much so as to provide for the election of district attorneys.
Mr. Harris. I have but very little feeling in regard to this matter, but I was always of the opinion, that the attorney general was a sort of fifth wheel to the wagon, and of no account. The legislature created this officer, and if it be deemed necessary, they can provide for him. This officer may be really indispensable, but I am disposed to think otherwise.
The question was then taken by yeas and nays and the section was agreed to; yeas 18, nays 13…
The Iowa Constitution empowers the AG within the Judicial department of Iowa government and it cannot participate in any function of the other two departments unless expressly permitted or directed (see Iowa Const. Art. III §1). Long standing usage does not validate either an incorrect application or an unconstitutional application of law. It is the clear duty of the courts to interpret and apply law given to it, not to develop or choose among schemes. (see Exira Community School Dist. V. State 512 N.W.2d 787) (emphasis added) The judiciary may not appoint a person to an office or position exacting the discharge of executive or legislative duties only. Hutchins v. City of Des Moines, 157 N.W. 881 (Iowa 1916). Long continuation of decisional law or administrative practice incompatible with requirements of Constitution cannot overcome responsibility to enforce those requirements of Constitution. Puerto Rico v. Branstad 107 SCt. 2802, 483 U.S. 219, 97 L.Ed.2d 187 (U.S.Iowa 1987)
While it is pleasing that the AG exercises the privilege of prosecuting Microsoft and Phillip Morris, it is disturbing that the AG does so while eluding the duty to preserve the rights of Iowa citizens. The primary and sworn duty of the AG is to “support the constitution of the United States, and of this state” (see Iowa Const. Art. XI §5) which is superlative to any subsequent statutory duty or privilege. The A.G. is bound to the letter of the law in the same fashion as the courts; “Supreme Court is not free to adopt a particular policy not supported by the language or history of a statute.” Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 367 (Iowa 2000). Thus, the AG is constitutionally proscribed from exercising functions of the executive branch inclusive of participating in the fundamental decision making process as advocate or opponent; the AG is bound strictly to what the legislature wrote, not what an agency, person or entity wants a statute to say.
The executive department has the general power to execute and carry out the laws, whereas the judicial department has the power to interpret the Constitution and laws, apply them and decide controversies. I.C.A. Const. Art. 3, §1 City of Cedar Falls v. Flett, 330 N.W.2d 251(Iowa 1983).
Involuntary annexation is government thwarting the desires of rural citizens. All a city needs to do to subjugate rural citizens is to isolate them and abuse the citizen with the financial power of government. In this instance (involuntary annexation) the proper role of the AG is as zealous advocate of the people to ensure that cities have complied with statutory requirements and to have cities prove beyond doubt that cities services can be provided in recompense for taxation. (if a city is not ready to provide services, it has no business annexing).
The objection here is as to a criminal proceeding. If the prosecutor is improperly proceeding in a case where it knows the defendants are innocent there is a duty to motion for dismissal. In involuntary annexation it is obvious that the citizen did not incite the city to act, the cities are making claims which may or may not be truthful but the burden of disproving the city is placed upon the innocent and ignorant citizen who likely had never heard of the CDB, §368.22, §17A or involuntary annexation. That burden properly rests upon the cities pursuant to §368.22 exclusion of §17A.17 (8) and the task of asserting that burden belongs to the AG as advocate for the citizen, not representative of the CDB or the parent Iowa Office of Economic Development which works hand in hand with cities as their advocate; such an arrangement is repugnant to constitutional elements.
The AG’s responsibility extends beyond agency application of law. The AG is not at liberty to overlook the complete absence of service of notice upon the CDB which was done on July 16, 1998. A layman appointee to the CDB should not overlook the mandatory notice. A lawyer should not overlook notice requirements to forward the interests of a client. The Attorney General has a fundamental duty to ensure that all statutory requirements are complied with by viewing and inspecting the substantial evidence, not challenging some other party to indicate the absence of evidence the CDB is responsible to verify. As a Judicial Branch officer the AG has an undeniable duty to guarantee that due process and jurisdictional requirements are complied with. Concerning the 1990 moratorium, the AG has evaded duty to advance the goals of the CDB “client”.
As advocate for the CDB, the AG becomes invested in the functions of the executive branch agency and looses objectivity to perform the fundamental function of providing a check and balance of executive and legislative powers against its “client”.
The acts of the AG acting as a quasi member of the CDB have combined the economic power of city and state government against small groups of Iowa citizens to bring about unjust results in direct breach of Iowa Code of Professional Responsibility for Lawyers EC 7-14. Cities are facilitating the goals of the Iowa Office of Economic Development or vice versa and the CDB functions under the auspices of that agency and finally the AG facilitates those same goals as advocate for those entities by association, including cities. This arrangement aligns the full economic power of government against as few as 1 rural citizen in what by nature is a state action pitted against the constitutional protections of the citizen. This perversion of governmental oversight and adjudication is nothing less than harassment and abrogation of the rights, privileges and protections of the plaintiff. There is no equity, protection or security for a citizens facing the combined economic and regulatory power of government when no branch is left unprejudiced to guarantee the citizens rights. The AG’s function as a check upon unbridled government and advocate for the Iowa Constitution far exceeds statutory permission to pursue abusive businesses.
§13.2 (5) limits the AG to “[g]ive an opinion in writing, when requested”. The AG has a duty to render a substantiated and correct determinations of law as written. The Judicial branch placement of the AG proscribes it from bending to the desires of an individual or agency by supporting substantial compliance when no compliance exists.
Government, including cities, the CDB and the AG is created for the security, protection and benefit of the citizens of Iowa (see Art. I §2) which the AG has directly offended against by contorting law to further the desires of government rather than applying the law to protect, benefit and provide for the security of rural and urban Iowa citizens.
Summary:
The Attorney General is a judicial branch officer. The AG is bound to the same rules of statutory construction as the courts regardless of what any desires the outcome to be. The AG’s exercise of executive branch function without express direction to perform those functions, violates Art. III §1 of the Iowa Constitution. The plaintiff is aggrieved by these violations.
SUMMARY
The moratorium is a collection of gibberish and statutory noncompliance or violation: Nothing was described pursuant to §355. Published notice contravenes the adopted resolution for each city and the resolution or notice contradicts compass directions in the prefatory paperwork and each other. Neither city served the CDB with the required notice. There is no evidence that the agreement was filed within 30 days.
The Defendants and neglected to ascertain if anything was “described” or where the “line of demarcation” was located according to 1990 facts. The fraudulent claims of substantial compliance were absent any proof of minimal compliance. Preemptively the CDB was without jurisdiction to sustain the moratorium because of the failure of both cities to serve notice upon the Board as required.
Because the CDB was without jurisdiction over the moratorium, so were the courts. Alternatively, the courts were without jurisdiction to rule upon the issues of this case by codification of §368.22. Thus all rulings and “findings of fact” based upon the moratorium were coram non judice and void.
Alternatively, none of the issues of this case (specifically what was described) was adjudicated in Andeson v. CDB.
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