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
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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
.
.
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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
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"
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 .
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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
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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
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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
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. 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
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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
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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
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