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Town Clock Plaza Referendum Issue FROM DUGGAN REALTY FAX NO. 3195562347 Aug. 11 2000 01:54AM Pi OU8GO ... 1.11b 9SIIowa Dubuque Towa 5200 I Phone: (319) 556-2525 TO: Jeanne Schneider, City Clerk T FROM: Terry Duggan RE: Town Clock Plaza T am requesting that you put the topic of the Town Clock Plaza on the Agenda for the City Council meeting, August 21,2000. I will be discussing the issue of allowing the citizens of Dubuque to vote on this issue of opening or closing the plaza, I have checked with Tom ONiell, Deputy EJections Office and be said there is plenty of time to place this issue on the ballot for the General election. November 7, 2000. This would be done at a minimal cost to the tax payers. Thank. you for your time and efforts Q co 0 0'< :b> ::0 c:: L: (iJ '-n cr () 'J (-- in CD \;'~ v -:::;:0 ~ ::::1::. ........ )..-..,. N ill f5 (J1 0 CD Barry A. Lindahl, Esq. Corporation Counsel 196 Dubuque Building 700 Locust Street Dubuque, Iowa 52001-6824 (319) 583-4113 (319) 583-1040 FAX E-mail: balesq@mwd.net 5Zro~%duE ~</k.~ August 17, 2000 Mayor Terrance M. Duggan and Members of the City Council City Hall Dubuque, Iowa 52001 RE: Town Clock Plaza Referendum Issue Dear Mayor and Councilmembers: The Mayor has requested that the City Clerk place an item on the agenda for the City Council meeting of August 21st on the question of whether the opening of the Town Clock Plaza to vehicular traffic should be submitted to the voters at an election. I have researched the question of the City's authority to submit a referendum issue such as this on the ballot. The opinion of the Iowa Supreme Court in City of Clinton vs. Sheridan, 530 N.W. 2nd 690 (Iowa 1995), a copy of which is attached to this letter, is authority for the City to submit the issue on the ballot. In City of Clinton, the Iowa Supreme Court held that an initiative and referendum provision of Clinton's home-rule charter was not inconsistent with state home-rule statutes. Further, the Clinton County Auditor had refused to submit a referendum issue on the ballot, based on an opinion of the Iowa Attorney General that in the absence of express statutory authority, the submission of an initiative or referendum would be invalid. The Iowa Supreme Court held that to require specific statutory authority to permit an initiative or referendum vote is contrary to the intent of the City home-rule amendment. Based on the City of Clinton Opinion, I believe that the City Council of the City of Dubuque has the authority to request an issue to be submitted on the ballot at an election and that the County Auditor is authorized to submit the referendum. Service People Integrity Responsibility Innovation Teamwork Mayor Terrance M. Duggan August 17, 2000 Page Two I would suggest that the Council authorize submitting the referendum issue on the ballot with the adoption of the enclosed Resolution. I believe that the Resolution is sufficient authority, similar to the City of Clinton's home-rule charter, for the issue to be submitted. I have been advised by Dubuque County Auditor Denise Dolan that to have the matter placed on the November 7th election, it must be received in her office by no later than the close of business on August 30th. I have sent a copy of this letter to Dubuque County Attorney Fred McCaw, but have not yet had an opportunity to discuss the issue with him. Very sincerely, Barry A. Lindahl Corporation Counsel BAL/cg Enclosure cc - Mr. Michael C. Van Milligen cc - Fred McCaw, Esq. cc - Ms. Denise Dolan, Dubuque County Auditor RESOLUTION NO. -00 REQUESTING THE DUBUQUE COUNTY AUDITOR TO PLACE THE MATTER OF THE OPENING OF TOWN CLOCK PLAZA TO VEHICULAR TRAFFIC ON THE BALLOT AT THE NEXT REGULAR ELECTION NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA AS FOLLOWS: Section 1. That the Auditor of Dubuque County is requested to place the following matter on the ballot at the next regular election: Shall Main Street from Fifth Street to Seventh Street remain closed to vehicular traffic. Passed, approved and adopted this _ day of August, 2000. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, City Clerk 530 N. W .2d 690, City of Clinton v. Sheridan, (Iowa 1995) *690 530 N.W.2d 690 CITY OF CLINTON, Iowa, Appellant, v. Charles A. SHERIDAN, Clinton County Auditor, Appellee. No. 94-82. Supreme Court of Iowa. April 26, 1995. City brought action for declaratory judgment that initiative and referendum provisions of its charter were constitutional and that auditor must submit referendum issue on ballot at municipal election. The District Court for Clinton County, David E. Schoenthaler, J., dismissed, and city appealed. The Supreme Court, Andreasen, J., held that initiative and referendum provisions of city home rule cbarter were not inconsistent with state statutes that placed limits on how city council exercised its power. Reversed and remanded. Temus, J., fIled dissenting opinion, in which Carter, J., joined. 1. MUNICIPAL CORPORATIONS~ 592(1) 268 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Exercise of Power by State and Municipality 268k592(1) In general. [See headnote text below] 1. MUNICIPAL CORPORATIONS~ 592(4) 268 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Exercise of Power by State and Municipality 268k592( 4) Ordinances permitting acts which state law prohibits. Iowa 1995. Ordinance is inconsistent with law of general Page 1 assembly and, therefore, preempted by it, when ordinance prohibits act permitted by statute or permits act prohibited by statute. 2. MUNICIPAL CORPORATIONS~ 111(2) 268 268IV Proceedings of Councilor Other Governing Body 268IV(B) Ordinances and By-Laws in General 268klll Validity in General 268klll(2) Conformity to constitutional and statutory provisions in general. Iowa 1995. Municipal ordinance is preempted by state law when it invades an area of law reserved by legislature to itself. 3. CONSTITUTIONAL LA W~ 14 92 9211 Construction, Operation, and Enforcement of Constitutional Provisions 92kll General Rules of Construction 92kl4 Meaning oflanguage. [See headnote text below] 3. STATUTES~ 188 361 361 VI Construction and Operation 36IVI(A) General Rules of Construction 361kl87 Meaning of Language 361kl88 In general. Iowa 1995. Generally, constitutional and statutory provisions are subject to same rules of construction, which require first looking at words employed, giving them meaning in their natural sense and as commonly understood. 4. MUNICIPAL CORPORATIONS~ 65 268 268III Legislative Control of Municipal Acts, Rights, and Liabilities 268k65 Local legislation. Iowa 1995. Copyright (c) West Group 2000 No claim to original U.S. Gov!. works 530 N. W .2d 690, City of Clinton v. Sheridan, (Iowa 1995) Provisions of state statute limiting how city council exercised its power were not inconsistent with initiative and referendum provisions of city home rule charter, where city was organized under home rule charter form of government, specifically allowed under statute, and charter expressly authorized initiative and referendum adoption and repeal of ordinances. LC.A. Const. Art. 3, ~ 38A; LC.A. ~~ 372.9, 372.10. 5. MUNICIPAL CORPORATIONS~ 108.1 268 268IV Proceedings of Council or Other Governing Body 268IV(B) Ordinances and By-Laws in General 268k108 Initiative 268kl 08.1 In genera1. [See headnote text below] 5. MUNICIPAL CORPORATIONS~ 108.6 268 268IV Proceedings of Governing Body 268IV(B) Ordinances General 268k108.5 268k108.6 Council or Other and By-Laws in Referendum In general; nature and source of power. Iowa 1995. Whether power of initiative and referendum exists in any particular municipality depends upon Constitution, charter, or statute. 6. STATUTES~ 219(5) 361 361 VI Construction and Operation 361 VI(A) General Rules of Construction 361k213 Extrinsic Aids to Construction 361k219 Executive Construction 361k219(5) Particular officers, construction by. Iowa 1995. When controversy addressed by Attorney General opinion reaches court for determination, court must conduct independent inquiry of interpretation to be placed on statute. Page 2 Bruce D. Johansen, City Atty., for appellant. Lawrence H. Schultz, County Atty., for appellee. Considered en banco ANDREASEN, Justice. The electors of Clinton, Iowa adopted a home rule charter in 1987. All powers of the city were vested in the city council, except as otherwise provided by the laws of Iowa and the provisions of the charter. The charter included initiative and referendum provisions for adoption, amendment, or repeal of ordinances by voters at an election. In this appeal we must deterntine if the initiative and referendum provisions of Clinton's home rule charter are contrary to Iowa *691 law. Based on opinions from the Office of the Iowa Attorney General that initiative and referendum elections are not authorized, the Clinton County Auditor, as commissioner of elections (Auditor), refused to place a referendum issue on the ballot at the 1993 city election. The city then commenced a declaratory judgment action. The city requested the court declare that the initiative and referendum provisions of its charter are constitutional and not inconsistent with state law and that the Auditor be required to subntit the referendum issue on the ballot at a municipal election. The issue was subntitted to the district court upon motion for summary judgment by both parties. The court ruled that the initiative and referendum provisions were inconsistent with state law and disntissed the petition. On appeal, we reverse. L Constitutional Home Rule. In 1968 the Constitution of the State of Iowa was amended. This twenty-fifth amendment to the constitution provided: Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the General Assembly, to deterntine their local affairs and government, except that they shall not have power to levy any tax uuless expressly authorized by the General Assembly. The rule or proposition of law that a municipal corporation possesses and can exercise ouly those Copyright (c) West Group 2000 No claim to original U.S. Gov!. works 530 N.W.2d 690, City of Clinton v. Sheridan, (Iowa 1995) powers graoted in express words is not a part of the law of this state. Iowa Const. art. III, ~ 38A. Prior to the amendment, municipal corporations "owe[d] their origin to, aod derive[d] their power aod rights wholly from, the legislature." City of Clinton v. Cedar Rapids & Missouri River R.R. Co., 24 Iowa 455, 475 (1868). The home rule amendment graoted broad powers aod authority to the municipalities aod rejected the Dillon rule (FNI) that had limited the power of the municipality. Bechtel v. City of Des Moines, 225 N.W.2d 326, 328-29 (Iowa 1975). Under the Dillon rule municipal corporations possessed aod could exercise ouly those powers graoted in express words, or those necessatily implied or incident to the powers expressly graoted, or those absolutely essential to the declared objects aod purposes of the municipality. [d. [1] [2] Under the provisions of the amendment, if the state statute aod the municipal ordinaoce cannot be reconciled, the statute prevails. City of Des Moines v. Gruen, 457 N.W.2d 340,342 (Iowa 1990) . The amendment graoted cities broad authority to regulate matters of local concern subject to preemption by laws of the general assembly. [d. at 341. An ordinaoce is inconsistent with a law of the general assembly aod, therefore, preempted by it, when the ordinaoce prohibits ao act permitted by a statute or permits ao act prohibited by a statute. City of Council Bluffs v. Cain, 342 N.W.2d 810, 812 (Iowa 1983). An ordinaoce is also preempted by state law when it invades ao area of law reserved by the legislature to itself. [d. All municipal corporations in Iowa were graoted home rule power aod authority under the amendment. At the time of the home rule amendment, four forms of municipal government were statutorily recognized. They were (I) mayor- council, Iowa Code chapter 363A; (2) commission, Iowa Code chapter 363B; (3) council-manager by election, Iowa Code chapter 363C; aod (4) council- manager by ordinaoce, Iowa Code chapter 363D (1966). II. Home Rule Actfor Cities. Following the adoption of the home rule amendment, the general assembly created a study committee to review state statutes relating to municipal corporations. 1969 Iowa Acts ch. 333. Page 3 In 1972 the legislature made wholesale revisions of municipal statutes. 1972 Iowa Acts ch. 1088 (home rule for cities). Under the 1972 Acts the legislature vested the power of a city in the city council except as otherwise provided by state law. [d. ~ 11. Specific limitations were imposed on the city powers aod duties. [d. ~ 12. Six forms of city government were recognized, including a home rule charter. [d. ~ 47. *692 Specific provisions were enacted establishing procedures of adoption of a home rule charter, contents of the charter, aod amendments to the charter. [d. ~~ 55-57. The provisions of the 1972 Acts may be cited as the City Code of Iowa aod are now codified in chapters 362, 364, 368, 372, 376, 380, 384, 388, aod 392 of the City Code of Iowa (1995). Iowa Code ~ 362.1. III. Clinton Home Rule Chaner. As permitted by the City Code of Iowa, the city of Clinton adopted a home rule charter. Iowa Code ~~ 372.9-.10 (1987). The charter included ao extensive initiative aod referendum provision, article VI. Under its provisions: The qualified electors have the right to propose ordinaoces to the City Council aod, if the City Council fails to adopt ao ordinaoce so proposed without aoy chaoge in substance, to have the ordinaoce submitted to the voters at ao election. The qualified electors have the right to require reconsideration by the City Council of ao existing ordinaoce aod, if the City Council fails to repeal such ordinaoce, to have it submitted to the voters at ao election. Clinton home rule charter, art. VI, ~ 6.IA(I) aod (2). IV. Background. In July 1993 the Clinton city council adopted five separate safety standards ordinaoces (building, fire, electrical, mechanical, aod plumbing). After petitions with sufficient qualified electors' signatures had been filed, the city council voted not to repeal the ordinaoces. As provided by the home rule charter, the city then directed the ordinaoces be forwarded to the Auditor to be placed on the ballot at the November 1993 municipal election. When the Auditor refused to submit the referendum to a vote, the city petitioned for declaratory judgment aod injunctive relief. The Copyright (c) West Group 2000 No claim to original U.S. Gov!. works 530 N. W .2d 690, City of Clinton v. Sheridan, (Iowa 1995) petition asked the court to declare the initiative and referendum provisions of the city's home rule charter to be constitutional and to prohibit the Auditor from refusing to submit the referendum issues requested by the city. After the requested injunctive relief had been denied, the declaratory judgment petition was submitted to the district court. The district court held article VI of the charter is contrary to state law. The court found provisions of the City Code of Iowa and the election laws of Iowa were inconsistent with the initiative and referendum provisions of the Clinton charter. V. Scope of Review. The parties agree our scope of review in this declaratory judgment action submitted on motion for summary judgment is for correction of errors at law. VI. Chaner Provisions Consistent With City Code of Iowa. [3] To resolve the issue raised in this case we must construe both constitutional and statutory provisions. Generally, constitutional and statutory provisions are subject to the same rules of construction. Junldns v. Branstad, 448 N.W.2d 480, 483 (Iowa 1989). We first look at the words employed, giving them meaning in their natural sense and as commonly understood. Id. (citation omitted). In deciding the meaning of the provisions we strive to ascertain the intent of the framers and of the legislators. See Redmond v. Ray, 268 N.W.2d 849, 853 (Iowa 1978) . We may also examine the history and consider the object to be attained as disclosed by circumstances at the time of the adoption. Id. 10 1963 the Iowa general assembly, in an attempt to overturo the Dillon rule, passed a home rule act. 1963 Iowa Acts ch. 235. When required to construe its provisions, we held the statute was a rule of construction and as such it was not unconstitutional. Richardson v. City of Jefferson, 257 Iowa 709, 719, 134 N.W.2d 528, 534 (1965). In Richardson we reviewed the legislative history and the objects to be attained by home rule. Id. at 714-17, 134 N.W.2d at 531-33. We expanded our historical review of home rule following the adoption of the constitutional amendment and the City Code of Iowa. Bechtel, 225 N.W.2d at 328-29. We concluded *693 the intention of the framers of the constitutional amendment was to grant cities power to rule their local affairs and government subject to the superior authority of the general assembly. Id. Page 4 at 332. The City Code of Iowa provides in part: "Council" means the governing body of a city. Iowa Code ~ 362.2(8) (1993). A city may, except as expressly limited by the Constitution, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the city or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents. Id. ~ 364.1. A power of a city is vested in the city council except as otherwise provided by a state law. Id. ~ 364.2(1). The enumeration of a specific power of a city does not limit or restrict the general grant of home rule power conferred by the Constitution. A city may exercise its general powers subject only to limitations expressly imposed by a state or city law. Id. ~ 364.2(2). An exercise of a city power is not inconsistent with a state law unless it is irreconcilable with the state law. Id. ~ 364.2(3). The following are limitations upon the powers of a city: 1. A city council shall exercise a power only by the passage of a motion, a resolution, an amendment, or an ordinance. Id. ~ 364.3. Passage of an ordinance ... reqnires an affrrrnative vote of not less than a majority of the council members. .. . Id. ~ 380.4. Copyright (c) West Group 2000 No claim to original U.S. Govt. works The district court reasoned, if the power of a city 530 N.W.2d 690, City of Clinton v. Sheridan, (Iowa 1995) is vested in the city council, and if the city council is the governing body of the city, and if it can exercise city powers only by the passage of an ordinance, then only the city council can pass or repeal an ordinance. The court concluded "[a]uthorizing the electors to adopt or repeal an ordinance cannot be reconciled with Iowa law which requires the City Council to take such action. " [4] Although the council is the governing body, it is not inconsistent to permit ordinances by initiative and referendum vote. Iowa Code section 364.2(4)(b) specifically allows franchise ordinances to be adopted or repealed by the vote of the electorate. The procedure for the adoption and amendment of a home mle charter by ordinance may require submission of the proposed charter or amendment to the voters at a special election. Iowa Code ~~ 372.9 and .11. Iowa has a long tradition of permitting cities under special charters to submit ordinances on initiative or referendum vote of the electorate. See 1907 Iowa Acts ch. 48, ~~ 19-20. In Eckerson v. City of Des Moines, 137 Iowa 452, 483, 115 N.W. 177, 189 (1908), we upheld the legality of the 1907 act that permitted initiative and referendum vote. In upholding its legality, we quoted "[t]here is certainly no provision of our Constitution which expressly, or by reasonable inference, prohibits it." [d. at 483-84, 115 N. W. at 189 (citation omitted). Although the general assembly is not authorized to submit to a popnlar vote the questions as to whether or not a proposed act shonld become law, it does not follow the general assembly may not reserve to the electorate of a subdivision the right to determine on popnlar vote if an act shonld be adopted. [d. at 478, 115 N. W. at 187. The statutory provisions vesting city power in the council, requiring the city council to exercise its power by passage of an ordinance, and providing adoption or repeal of an ordinance by the affirmative vote of a majority of the council were in existence in 1908 when we filed the Eckerson decision. Iowa Code ~~ 668, 680, 683 (1907). [5] The power of direct legislation by initiative and referendum frequently is given to qualified voters of a municipality. 5 Eugene McQuillin, The Law of Municipal Corporations ~ 16.49 (3d ed. 1989). Whether the power of initiative and referendum exists in *694 any particnlar municipality depends upon the constitution, charter, or statute. [d. But generally speaking, provision for the power and its exercise, particularly with respect to home mle in larger cities, is to be found in charters, and the Page 5 power and mode of its exercise are governed by charter provisions rather than by statutes. [d. The Iowa legislature has expressly preserved the power given to the city by the constitutional amendment unless it is irreconcilable with state statutes. The requirements of section 364.2(3) merely place limitations upon how the city council exercises its power. It is not an express prohibition against a home mle charter providing for initiative and referendum voting. Initially section 56 of the 1972 home rule act provided: A home rule charter must contain and is limited to provisions for: I. A council of an odd number of members, not less than five. 2. A mayor, who may be one of those council members. 3. Two-year or staggered four-year terms of office for the mayor and council members. 4. The powers and duties of the mayor and the council, consistent with the provisions of this Act. The words, "and is limited to" were repealed in 1975. 1975 Iowa Acts ch. 203, ~ 22. The obvious purpose of this deletion was to allow the home rule charters to include the broad powers to determine local affairs and government as provided by the constitutional amendment. The constitutional amendment granted home rule power to determine local affairs and government. The City of Clinton is organized under a home rule charter form of government permitted by the amendment and specifically allowed under the City Code of Iowa. The City of Clinton's charter expressly authorizes initiative and referendum adoption and repeal of ordinances. The home mle amendment granted the city power to determine its local government. The city is no longer dependent upon the legislature to grant it power. "Any limitation on a city's power by state law must be expressly imposed." Bryan v. City of Des Moines, 261 N.W.2d 685, 687 (Iowa 1978). We fmd no irreconcilable conflict between the provisions of the City Code of Iowa and the initiative and referendum provisions of the Clinton home rule charter. VII. Clwner Provisions Consistent With Election Laws. Copyright (c) West Group 2000 No claim to original U.S. Gov!. works 530 N.W.2d 690, City of Clinton v. Sheridan, (Iowa 1995) The second argument urged for denying municipal initiative and referendum vote is that relied upon by the Auditor as expressed in attorney general opinions. The attorney general stated in part: [W]e are of the opinion that elections may only be held upon matters which are specifically authorized by the Constitution or statutes of the state. In 1976, we opined that the municipal home mIe amendment does not give cities the authority to, by municipal charter, establish a type of election not otherwise allowed by law. 1976 Op.lowa Att'y Gen. 681. [W]e conclude that political subdivisions may only authorize the presenting of questions to voters on matters that are specifically required or authorized to be placed before the electorate by statute or by Constitution.... The commissioner of election does not have the authority to conduct an illegal or unauthorized election, and, therefore has the authority to refuse to conduct an election if the election is not specifically authorized or required by statute or by the Constitution. 1992 Op.lowa Att'y Gen. 169, 170-71. An earlier opinion stated: Since our election laws are so carefully detailed and prescribed, I must conclude that in absence of constitutional or statutory authority, such submissions to the voters are unlawful. 1972 Op.lowa Att'y Gen. 263, 264. [6] The Iowa Attorney General has consistently expressed an opinion that elections on adoption, amendment, or repeal of ordinances are not permitted unless specifically *'95, required or authorized by statute, despite the existence of home mIe powers. Although an attorney general's opinion is not binding on us, it is entitled to our respectful consideration. Albia Publishing Co. v. Klobnak, 434 N.W.2d 636, 639 (Iowa 1989). However, when a controversy addressed by an attorney general opinion reaches the court for determination, the court must enter upon an independent inquiry as to the interpretation to be placed upon the statute. City of Nevada v. Slemmons. 244 Iowa 1068, 1071, 59 Page' N.W.2d 793,794 (1953). Here, the attorney general suggests, in the absence of express statutory authority, the submission of an initiative or referendum wonld be invalid. This suggestion is a carryover of the Dillon mIe under which a municipal corporation possessed and exercised only those powers granted by the legislature in express words. To require specific statutory authority to permit an initiative or referendum vote is contrary to the intent of the amendment that rejected the Dillon rule. Cities no longer have only those powers granted by the legislature. Bryan, 261 N.W.2d at 687. We find no irreconcilable conflict between the election laws and the initiative and referendum provisions of the Clinton home rule charter. If the general assembly intended to preempt municipal initiative and referendum powers, it could have done so by express and unambiguous statutory language. See Chelsea Theater Corp. v. City of Burlington, 258 N.W.2d 372, 373 (Iowa 1977). We fmd no preemption problem. We reverse and remand for entry of judgment in accordance with this decision. REVERSED AND REMANDED. All justices concur except TERNUS, J., who dissents, and is joined by CARTER, J. TERNUS, Justice (dissenting). I respectfully dissent. Although I agree with the majority's underlying premise that a city may exercise any power not inconsistent with state law, I disagree with its conclusion that the initiative and referendum provision of the Clinton city charter does not conflict with the City Code ofIowa. The City Code of Iowa vests city powers in the city council. Iowa Code ~ 364.2(1) (1993). The City Code then places "limitations upon the powers of a city" by stating that the council must exercise a power "only by the passage of a motion, a resolution, an amendment, or an ordinance." Id. ~ 364.3(1) (emphasis added). This limitation is particularly significant in view of the legislature's express requirement that cities "substantially comply with a procedure established by a state law for exercising a city power." Id. ~ 364.6. The clear result of these statutes when read Copyright (c) West Group 2000 No claim to original U.S. Govt. works , , 530 N.W.2d 690, City of Clinton v. Sheridan, (Iowa 1995) together is that a city power may be exercised only by the city council's passage of a motion, a resolution, an amendment, or an ordinance. An initiative and referendum provision such as the one in the Clinton city charter allows the electorate to exercise a city power by enacting an ordinance. Such a provision conflicts with the legislature's express limitations on the exercise of city powers. Unlike the majority, I think this conflict is irreconcilable. The majority appears to rely on Eckerson v. City of Des Moines, 137 Iowa 452, 115 N. W. 177 (1908), to support its conclusion that initiative and referendum votes do not conflict with the City Code of Iowa. The majority points out that the pertinent provisions of the City Code were also in existence at the time of the Eckerson decision, where we allowed a local initiative and referendum vote. However, the initiative and referendum provision approved in Page 7 Eckerson was contained in a state law and for that reason alone wonld not conflict with the City Code. See Iowa Code ~ 364.2(1) (1993) ("A power of a city is vested in the city council except as otherwise provided by a state law. ") (emphasis added). In contrast, the initiative and referendum provision involved in this case is in a city charter, an important factual difference. Consequently, the Eckerson decision has no precedential value here. I wonld affirm the district court's declaratory rnIing that the initiative and referendum provision of the Clinton city charter is illegal. CARTER, J., joins this dissent. FNI. Chief Justice Dillon in 1868 outlined the nature of the city's powers in Clinton, 24 Iowa 455 at 475 and Merriam v. Moody's Execalors, 25 Iowa 163, 170 (1868). Copyright (c) West Group 2000 No claim to original U.S. Gov!. works . . . . . Bany A. Lindahl, Esq. Corporation Counsel 196 Dubuque Building 700 Locust Street Dubuque, Iowa 52001 -6824 (319) 583-4113 (319) 583-1040 FAX E-mail: balesq@mwci.net Mayor Terrance M. Duggan and Members of the City Council City Hall Dubuque, Iowa 52001 i5;O~~E ~<k~ August 18, 2000 RE: Referendum Ordinance Dear Mayor and Councilmembers: Enclosed, for your consideration, is a proposed Ordinance that would authorize a referendum. I am also enclosing a copy of Iowa City's Homerule Charter provisions providing.for initiative and referendum. BAL\cg Enclosures cc - Mr. Michael C. Van Milligen Service People Integrity Responsibility Innovation sincerely, Barry A. Lindahl Corporation Counsel Teamwork . . . , . ORDINANCE NO. -00 AN ORDINANCE AMENDING THE CITY OF DUBUQUE CODE OF ORDINANCES CHAPTER 1 GENERAL PROVISIONS BY ADDING A NEW ARTICLE V. REFERENDUM NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Chapter 1 of the City of Dubuque Code of Ordinances is hereby amended by adding the following new Article: ARTICLE V. REFERENDUM Sec. 1-36. Referendum Authorized. The City Council may submit an ordinance to the voters at an election. If a majority of the qualified electors voting on the ordinance vote in favor, the ordinance shall be considered approved and the ordinance shall take effect upon publication. Section 2. This Ordinance shall take effect upon publication. Passed, approved and adopted this ___ day of , 2000. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, City Clerk . . . RESOLUTION NO. _-00 REQUESTING THE DUBUQUE COUNTY AUDITOR TO PLACE AN ORDINANCE ON THE CLOSING OF MAIN STREET TO VEffiCULAR TRAFFIC ON THE BALLOT AT THE NEXT REGULAR ELECTION NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA AS FOLLOWS: Section 1. That the Auditor of Dubuque County is requested to place the following matter on the ballot at the next regular election: Shall the following ordinance be adopted by the City Council of the City of Dubuque, Iowa: Main Street from Ninth Street to Fifth Street shall be closed ~ to vehicular traffic. Passed, approved and adopted this _ day of August, 2000. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, City Clerk . . . 08/15/2000 16:29 3193387250 MEARDON SUEPPEL DOWR PAGE 02/09 WIU-IAM L. MEARDON ( 1919-1997) W1LUAM F'. SUE:PPE1., ROBERr N. OOWNER .JAMES O. Mc:CARRAGHER MARK T. M.AME.R THOMAS O. HOBART MARGARET T. LAINSON DOUGLAS D. AUP~EAT 1tMOTHY oJ. KRUMM WILLIAM J. SUEPPEL CMARLES A. MEARDON DtNNlS .... MrrcHELl.. MEARDON, $UEPPEL & DOWNER P.L.C. LAWYERS 122 SOUTH LINN STRi~ TII:U:~I-IOME: (.J I Q) .:336-922i?: I"AlC; (3' 9) 3:3S-?O;::SO IOWA cnv. IOWA 52240 -1830 August 15, 2000 FACSIMILE (319) 583-1040 LETI'ER TO FOLLOW IN U.S. MAIL Mr. Barry A. Undahl Corporation Counsel City of Dubuque 196 Cycare Plaza Dubuque, IA 52001 Dear Barry: Enclosed please find a copy of Article Seven of the Iowa City HomeruIe Owter. There is one big issue going before the voters at this year's election. Very truly you s, William F. Sueppel WFS~km Enclosure 08/15/2000 16:29 3193387250 MEARDON SUEPPEL DOWR PAGE 03/09 " ARTICLE VI. CAMPAIGN CONTRIBUTIONS AND EXPENDITURES ( Seetio 6.01. Limitations on the amount of campaign contributio The Councl by ordinance, shall prescribe limitations on th amount of campaign con ibutions made to a candidate for election Council by a . person as defin in this Charter. (Ord. No. 95-3671, 5 1, -28-95) Section 6.02. Disclosu of contributions and . penditures. The Council, by ordinance, ma . Within this article expenditure or contribution does not m . a person's time donated to . or promote a candidate's nomination or elect ( unci!, by ordinance, shall prescribe (1) penalties for the violation of the CO bution limitations and disclosure requirements it establishes pursuant to t s section and (2) when appropriate, conditions for the revocation of a didate's rightto serve on Council if elected, consistent with State law. (Ord. No. 85-3227, ~ 2(2),3-12-85) ARTICLE VII. INITIATIVE AND REFERl:NDUM Section 7.01. General provisions. A. Authority. . (1) Initiative. The qualified electors have the right to propose ordinances to the Council and, if the Council fails to adopt an ordinance so proposed without any change in substance. to have the ordinance . 12 ( '. . . . 08/15/2000 15:29 3193387250 MEARDON SUEPPEL DOWR submitted to the voters at an election. (2) Referendum. The qualified electors have the right to require reconsideration by the Council of an existing ordinance and, if the Council fails to repeal such ordinance, to have it submitted to the voters at an election. (3) Definition. Within this article, .ordlnance" means all measures of a legislative nature, however designated, which (a) are of a permanent rather than temporary character and (b) Include a proposition enacting, amending or repealing a new or existing law, policy or plan, as opposed to one providing for the execution or administration of a law, policy or plan already enacted by Council. B. Limitations. (1) SUbject matter. The right of initiative and referendum shall not extend to any of the following: (a) Any measure of an executive or administrative nature. (b) The City budget. (c) The appropriation ot money. (d) The levy of taxes or special assessments. (e) The issuance at General Obligation and Revenue Bonds. (I) The letting of contracts. (g) Salaries of City employees. (h) Any measure required to be enacted by State or federal law. (i) Amendments to this' Charter. (j) Amendments affecting the City Zoning Ordinance, except those affecting a tract of land two acres or more in size. (2) Resubmission. No initiative or referendum petition shall be filed within two years after the same measure or a measure substantially the same has been submitted to the voters at an election. (3) Council repeal, amendment and reenactment. No ordinance proposed by initiative petition and adopted by the vote of the Council without submission to the voters, or adopted by the voters pursuant to this 13 PAGE 04/09 08/15/2000 16:29 3193387250 MEARDON SUEPPEL DOWR . article, may for two years thereafter be repealed or amended except by a vote of the people, unless provision is otherwise made in the original initiative ordinance. No ordinance referred by referendum petition and repealed by the vote of the Council without submission to the voters, or repealed by the voters pursuant to this article, may be reenacted for two years thereafter except by vote of the people, unless provision is otherwise made in the original referendum petition. C. Construction. (1) Scope of power. It is intended that this article confer broad initiative and referendum powers upon the qualified voters of the City. . (2) Initiative. It is intended that (a) no initiative petition will be invalid because it repeals an existing ordinance in whole or in part by virtue of proposing a new ordinance and (b) an initiative petition may amend an existing ordinance. (3) Referendum. It is intended that a referendum petition may repeal an ordinance in whole or in part. . D. Effect of filing petition. The filing of an initiative or referendum petition does not suspend or invalidate any ordinance under consideration and such ordinance shall remain in full force and effect until its amendment or repeal by Council pursuant to Section 7.05A or until a majority of the qualified electors voting on an ordinance vote to repeal or amenCl the ordinance and the vote Is certified. E. City obligations. An initiative or referendum vote which repeals an existing ordinance in whole or in part does not affect any obligations entered into by the City, its agencies or any person in reliance on the ordinance during the time it was in effect. (Ord. No. 85-3227, ~ 2(2), 3-12-85) Section 7.02. Commencement of proceedings; affidavit. A. Commencement. One or more qualified electors, hereinafter referred to as the "petitioners, . may commence initiative or referendum proceedings by filing with the City Clerk an affidavit stating they will supervise the circulation of the petition and will be responsible for filing it in proper form. stating their names and addresses and specifying the address to which all relevant notices are to be sent, and setting out in full the proposed initiative ordinance or citing the ordinance sought to be reconsidered. . B. Affidavit. The City Clerk shall accept the affidavit for filing if on its face it appears to have signatures of one or more qualified electors. The City Clerk shall issue the appropriate petition forms to the petitioners the same day the 14 PAGE 05/69 ( ( ( 08/15/2000 16:29 3193387250 MEARDON SUEPPEL DOWR , . . affidavit is accepted for filing. The City clerk shall cause to be prepared and have available to the public, forms and affidavits suitable for the commencement of proceedings and the preparation of initiative and referendum petitions. (Ord. No. 85:-3227, ~ 2(2), 3-12-85) Section 7.03. Petitions; revocation of signatures. . A. Number of signatures. Initiative and referendum petitions must be signed by qualified electors equal in number to at least twenty-five percent of the number of persons who voted in the last regular City election, but such signatures shall be no fewer than two thousand five hundred qualified electors. Any petition that does not, on its. face, contain the minimum required signatures defined herein shall be deemed insufficient for filing under this article, and no supplementary petition shall be permitted. B. Form and content. All papers of a petition prepared for filing must be substantially uniform in size and style and must be assembled as one instrument. Each person signing shall provide, and the petition form shall provide space for, the signature, printed name, and address of the person signing, the date the signature is executed, and any other information required by City Council. The form shall also provide space for the signer's birthdate, but a failure to enter a birthdate shall not invalidate a signer's signature. Petitions prepared for circulation must contain or have attached thereto throughout their circula,ion the fuD text of the .ordinance proposed or sought to be reconsidered. The petition filed with the city clerk need have attached to it only one copy. of the ordinance being proposed or referred. C. Affidavit of circulator. Each paper of a petition containing signatures must have attached to it when filed an affidavit executed by a qualifiec;t elector certifying: the number of signatures on the paper, that he or she personally circulated it, that all signatures were affixed in his or her presence, that he or she believes them to be genuine signatures of the persons whose names they purport to be and that each signer had an opportunity before signing to read the. full text of the ordinance proposed or sought to be reconsidered. Any, person filing a false affidavit will be liable to criminal penalijes.as provided by State law. . D. Time for filing initiative petitions. Signatures on an initiative petition must be secured and the petition filed within six months after the date the affidavit required under Section 7.02A was filed. . E. Time for filing referendum petitions. Referendum petitions may be filed within sixty days after final adoption by the Council of the ordinance sought to be reconsidered, or subsequently at any time more than two years after such final adoption. The signatures on a referendum petition must be secured during the sixty days after such final adoption; however, if the petition is filed 15 PAGE 06/09 , ; L. .. 08/15/2000 15:29 3193387250 MEARDON SUEPPEL DOWR PAGE 07/09 . . . more than two years after final adoption, the signatures must be secured ( within six months after the date the affidavit required under Section 7.02A was filed. F. Revocation of signature. Prior io the time a petition. is tiled with the City Clerk, a signatory may .revoke his or her signature for any reason by filing with the City Clerk a statement of his or her intent to revoke his or her signature. After a petition is filed a signatory may not revoke his or her signature. The City Clerk shall cause to be prepared and have available to the public, forms suitable for the revocation of petition signatures. (Ord. No. 85-3227, ~ 2(2), 3-12-85; Ord. No. 90-3462, ~ 1, 6-26-90) Section 7.04. Procedure after filing. A. Certificate of city clerk; amendment. Within twenty days after a petition is filed which contains the minimum required signatures, as set forth In Section 7.03.A above, the City Clerk shall complete a certificate as to the petition's sufficiency. I.f the petition is insufficient, the Clerk's certificate shall specify the particulars wherein the petition is defective. The Clerk shall also promptly send a copy of the certificate to the petitioners by registered mail. A petition certified insufficient may be amended once, provided, however, that one or more of the . original petitioners files a notice of intention to amend the original petition, such notice to be filed with the City Clerk within two days after receiving a copy of the certificate, and the petitioner also files a supplementary petition (' upon additional papers within fifteen days after receiving a copy of such '. . certificate. SUCh supplementary petition shall comply with ~he requirements of subsections Band C of Section 7.03. Within fifteen days after a supplementary petition is filed, the City Clerk shall complete a certificate as to the sufficiency of the petition, as amended and supplemented, and shall promptly send a copy of such certificate to the petitioners by registered mail, as in the case of an original petition. If a petition or amended petition is certified sufficient, or if the petition or amended petition .is certified insufficient and one or more of the petitioners do not request Council review under subsection B of this Section within the time prescribed, the City Clerk shall promptly present the certificate . to the Council. B. Council review. If a petition has been certified insufficient by the City Clerk 1 and one or more of the petitioners do not file notice of intention to amend it or if an amended petition has been certified insufficient by the City Clerk, one or ! more of the petitioners may, within two days after receiving a copy of such certificate, file with the City Clerk a request that it be reviewed by the Council. The Council shall review the certificate at its next meeting following the filing of such a request, but not later than thirty days after the filing of the request for review, and shall rule upon the sufficiency of the petition. . l 16 08/15/2000 16:29 3193387250 MEARDON SUEPPEL DOWR . . . C. Court review; new petition. Each qualified elector has a right to judicial review of Council's determination as to the sufficiency of a petition. Proceedings for judicial review will be equitable in nature and must be filed in the State District Court for Johnson county. The right to judicial review is conditioned upon the timely filing of a request for Council review under Section 7.046, and the filing of the petition for court review within thirty days after determination' by Council as to the sufficiency of the petition. A determination of insufficiency, even if sustained upon court review, shall not prejudice the filing of a new petition for the same purpose. . D. Validity of signatures. A petition shall be deemed sufficient for tha purposes of this article if it oontains valid signatures in the number prescribed by Section 7.03 and is timely filed, even though the petition may contain one or more invalid signatures. A signature shall be deemed valid unless it is not the genuine signature of the qualified elector whose name it purports to be, or it was not voluntarily an.d knowingly executed. A valid signature need not be in the Identical form in whioh the qualified elector's name appears on the voting rolls, nor may a signature be deemed invalid because the address accompanying the name on the petition is different from 'the address for the same name on the current voting rolls if the quali~ed elector's birth date is provided and is shown on the voting rolls. (Ord. No. 85.3227, !i 2(2), 3-12-85; Ord. No. 90-3462, !i 2, 6-26-90; Ord. No. 95-3671, !i 1, 3-28-95) Section 7.05. Actlon'on petitions. A. Action by council. When an initiative or referendum petition has been determined sufficient, the Councii shall promptly consider the proposed initiative ordinance or reconsider the referred ordinance. If the Council fails to adopt a proposed initiative ordinance and falls to adopt an ordinance which is similar in substance within sixty days. or if the Council fails to repeal the referred ordinance within thirty days after the date the petition was finally determined sufficient, it shall submit the proposed or referred ordinance to the qualified electors of the city as hereinafter prescribed. The Counoil shall submit to the voters any ordinance which has been proposed or referred in accordanoe with the provisions of this Article unless the petition is deemed insuffioient pursuant to Section 7.04. If at any time more than thirty days before a scheduled initiative or referendum election the Council adopts the proposed initiative ordinance or adopts an ordinance which is similar 'in substance or if the Council repeals a referred ordinance, the initiative or referendum prooeedings shall terminate and the proposed or referred ordinance shall not be submitted to the voters. . B. Submission to voters. The vote of the City on a proposed or referred ordinance shall be held at the regular city election or at the general election which next occurs more than forty days atter the expiration of the appropriate sixty or thirty-day period provided for consideration or reconsideration in 17 PAGE 08/09 ! i ~. r I . , ,! /, r 08/15/2000 16:29 3193387250 MEARDON SUEPPEL DOWR PAGE 09/09 :.. .. . Section 7.05A, provided, however, that the Council may provide for a special referendum election on a referred ordinance any time after the expiration of the thirty-day period provided for reconsideration in Section 7.0SA. Copies of the proposed or referred ordinance shall be made available to the qualified electors at the polls and shall be advertised at the city's expense in the manner required for 'questions' in Section 376.5 of the Iowa Code. The subject matter and purpose of the referred or proposed ordinance shall be indicated on the ballot. (Ord. No. 77-2858, ~ 2, 9-16-77; Ord. No. 85-3227, ~ 2(2), 3-12-85) ( Section 7.06. Results of election. . A. Initiative. If a majority of the qualified electors voting on a proposed initiative ordinance vote in its favor, it shall be considered adopted upon certification of the election results and shall be treated in all respects in the same manner as ordinances of the same kind adopted by the Council, except as provided in Section 7.01B(3). If conflicting ordinances are approved by majority vote at the same election, the one receiving the greatest number of affirmative votes shall prevail to the extent of such conflict. B. Referendum. If a majority of the qualified electors voting on a referred ordinance vote against it, it shall be considered repealed upon certification of the election results. Section 7.07. Prohibition on establishment of stricter conditions or requirements. The Council may not set, except by Charter amendment, conditions or requirements affecting initiative and referendum which are higher or more stringent than those imposed by this Charter. ARTI VIII. CHARTER AMENDMENTS AND RE !lowing methods: A. The Co unci y resolution, may submit a proposed ndment to the voters at a . y election, and a proposed amendment becomes e appro by a majority of those voting. . . The Council, by ordinance, may amend the Charter. However, within thirty 18 (