IN THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY

John Francis Anderson,
Mayor Pro Tem of the Territory
of West Carlisle, Polk County, Iowa
XXXXXXXXXX

Petitioner,                                        A.A. No. 3155

vs.                                                 PETITION FOR JUDICIAL REVIEW

The City Development Board
of the State of Iowa

Respondent.

COMES NOW
the petitioner, pro se, and seeks judicial review of the final decision of the Respondent concerning petition A 98-02. For claim, the petitioner states as follows:

  1. The territory of "West Carlisle" is wholly within Polk county Iowa and completely outside the city limits of any city.
  2. The nature of the action being appealed is dismissal of a petition for involuntary annexation tendered by much more than the required 5% of the qualified electors (368.11) upon faulty legal grounds.
  3. The City Development Board dismissed the petition of West Carlisle (A98-02) on July 16 1998. Dismissal was based on the existence of an annexation moratorium agreement which was reached without representation or suffrage by the citizens of West Carlisle.
  4. The City Development Board dismissed the appeal for rehearing by West Carlisle on August 13 1998. Again, dismissal was based on the existence of an annexation moratorium agreement which was reached without representation or suffrage by the citizens of West Carlisle.
  5. The faults of the legal advice concerning 368.4 are: 1. Incorrect application of statutory definitions (362.2) 2. Insufficient research of the historical derivation to render responsible cogent advice. 3. Failure to identify and substantiate any point of violation of the moratorium which would require dismissal. 4. Incorrect definition of which entities can submit a "plan" to the City Development Board. 5. Failure to substantiate that "due process" was afforded county citizens in the moratorium process which, subsequent to the Attorney Generals opinion, abrogated their constitutional rights and the privilege to proceedings utilizing the Code of Iowa.
  6. The faults of the legal advice concerning 368.11 are: 1. The opinion that 5% of the qualified electors do not have the statutory privilege of "involuntary annexation" of a city despite the General Assembly specifically including that in the Code of Iowa. 2. That the citizens could not have fulfilled the statutory requirements of the code section despite submitted documentation that the citizens had made good faith efforts to comply in numerous ways. 3. Repeated misreading of the statutes, even after correction, which prejudiced the Board for dismissal and against the petition.


The action being appealed is the dismissal of the West Carlisle involuntary annexation to the city of Carlisle No. A98-02. In addition, we appeal the opinion of the Attorney General, rendered unto the board during discussion the West Carlisle petition application, that the proper procedures were not followed in submission of that petition, and could not statutorily be followed, in tendering the Petition of West Carlisle.

The fact on which venue is based will be presented in the following order:
  1. The applicability of an "annexation moratorium" pursuant to chapter 368.4 regarding Iowa citizens who reside outside of the jurisdictional and geographical spheres of the agreeing cities.
  2. The empowerment and mechanisms of the qualified electors of a territory to utilize "involuntary annexation" pursuant to 368.11.
  3. The admonishment of the Attorney General to the City Development Board that it was the duty of the courts to clarify the constitutional issues despite the acknowledged presence of questions of the Constitutionality borne of that Justice Department offices interpretation.

1. Regarding "annexation moratorium" (368.4)

Definitions ( contained in 362.2, applied to 368 in 362.1 )

  1. (362.2) "city" means a municipal corporation, but not including a county , township, school district, or any special-purpose district or authority. When used in relation to land area, "city" includes only the area within the city limits.
  2. "resolution" (362.2) or "motion" means a council statement of policy or a council order for action to be taken, but "motion" does not require a recorded vote.

City Empowerment (368.4 sentence one)

A city, following notice and hearing, may by resolution agree with another city or cities to refrain from annexing specifically described territory for a period not to exceed ten years…

This allows for a statement of policy between two municipal corporations to proscribe each signatory city, only, from commencement of annexation proceedings.

State Empowerment ( 368.4 sentence three)

If such an agreement is in force, the board shall dismiss a petition or plan which violates the terms of the agreement.

This directs the City Development board for the State of Iowa to dismiss a petition or plan commenced or initiated by an agreeing city in violation of an annexation moratorium to which that city was signatory.

General Empowerment (368.4)

There is no adoption by reference (4.3) of 368.4 in the Code of Iowa by other statutes.

There is no adoption by reference (4.3) by 368.4 of any other statute in the Code of Iowa.

While some "ordinances" may be extended beyond the city limits when allowed by code, there is no allowance for extension of a "statement of policy" or resolution beyond the city limits in the Code of Iowa. A 368.4 agreement is solely a 368.4 agreement between cities which cannot by definition be construed as an ordinance and thus by the definition of "cities" and "resolutions" lacks any empowerment to affect the rights and privileges of residents outside of the agreeing cities jurisdiction.

Historical Derivation:

The 1962 General Assembly and Governor enacted House file 357 as paragraph 7 of chapter 362.26 of the Code of Iowa.

The 1971 General Assembly and Governor enacted, by schedule, House file 574 (city home rule) in which Division III Part 2 (page 201 of H.F. 574) "…includes provisions similar to present law, providing for a city to change its name, for cities to agree not to annex specific territory, and for annexation on application of all owners of a territory."

All other codicils pertain to notice, filing and extension and are not germane
to this appeal.

There was no bill introduced to change the intent or scope of the moratorium agreements upon enactment of "city home rule" the change of statutory content was the work of code editors and not by a vote of intention by the General Assembly. With correct application of the statutory definitions, the post 1975 statute (368.4) and the pre 1975 statute (362.26 paragraph 7) are equal in scope and intent.


Misapplication of law by the City Development Board on the advice of the Attorney General of Iowa:

  1. Violation of statutory definitions:
  2. by maintaining that county and township residents are bound by a 368.4 agreement the scope of the definition of a "city" (362.2) is illegally expanded.
  3. by maintaining that a "resolution" (362.2)of two cities is binding on county and township residents the jurisdiction of a statement of policy is illegally extended to include areas outside of the statutory boundaries of a city which is not allowed in the Code of Iowa and not enabled by the statute 368.4.
  4. by maintaining that "only the City Development Board can initiate or direct a "plan" to be submitted the State is impeding the abilities of cities, counties, metropolitan planning organizations (chapter 28I of the Code of Iowa), the State of Iowa, and even citizens of a territory from serving the public and executing government offices by precluding all from forwarding "plans" for development to the City Development Board. Evidence that other "entities" can develop and submit plans is contained in 28I, 368.10 (1.), 368.13. There are 346 different instances of the word "plan" in the Code of Iowa when searched on CD ROM.
  5. by maintaining that two entities may come to an agreement which is wholly binding on a third without representation, consent or suffrage the State is ignoring and thus voiding basic democratic tenets, common law, statutory law and constitutional law regarding suffrage and due process.

    Statutory Violations:

  1. by not deliberating interpretations that conform with chapter 4.4 (1, 2, 3, 5)of the Code of Iowa the State is violating the constitutional rights of the citizenry. Violation of 4.4(5) is construed by observing the favor of a cities wishes over those of the citizenry outside that cities jurisdiction whereby a "single" entity, although not private, is favored over the interests of the general public, also not private, when acting as a territory as allowed by the General Assembly, limited only by the area included in the moratorium agreement.


    Constitutional Violations and Infringements

  1. Article 1 Section 1. We were denied the liberty to determine which community would allow us to protect our property and allow us to obtain safety and happiness for our family.
  2. Article 1 Section 2. The government of the State has not benefited nor protected nor secured our rights and did not allow us to alter or reform policies or opinions when the public good of our citizenry required it. They have also held the privilege of law for cities above the constitutional rights of the citizens in complete violation of this section.
  3. Article 1 Section 6 The governments of the State of Iowa has acknowledged that the application of the law was not uniform yet has persisted to deny us the privilege of law due to the classification of where we lived in respect to the moratorium line while upholding that privilege for all other Iowans not in the same geographical classification.
  4. Article 1 section 9. The government of the State of Iowa has denied us due process by maintaining that a moratorium drafted by two cities, as defined in 362.2, without representation or suffrage subsequently abrogated our privilege to pursue claims and petition the state under chapter 368.
  5. Article 1 Section 20. The State of Iowa denied us the right to petition the first accessible level of government with any power of determination in the issue of annexation by dismissing our petition without first considering it.

The above listed violations and infringements of the Constitutional rights of the citizenry of West Carlisle is a direct violation of the oath of office required by all appointed or elected officials of the State of Iowa.


2. Regarding "Involuntary Annexation" (368.11)

Definitions (contained in Chapter 368.1 or Webster's)

  1. "Annexation" (368.1) means the addition of territory to a city.
  2. "Involuntary"(Webster's) 1: done contrary to or without choice
    2: compulsory 3: not subject to control of the will
  3. "Boundary adjustment"(368.1) means annexation, severance or consolidation.
  4. "Territory" 368.1) means the land area or areas proposed to be incorporated, annexed, or severed, whether or not contiguous to all other areas proposed to be incorporated, annexed or severed. Except as provided for by an agreement pursuant to chapter 28E, " territory" having a common boundary with the right-of-way of a secondary road extends to the center line of the road.

Empowerment:

A petition for… boundary adjustment may be filed with the board by a city council, a county board of supervisors, a regional planning authority, or five percent of the qualified electors of a city or territory involved in the proposal.

The petition of the citizens of the territory of West Carlisle, Polk county, Iowa was filed in accordance with the "five percent of the qualified electors" element. Our efforts at petition construction were impeded by the States application of 368.4 which forced Carlisle to be uncooperative, making fulfillment of the petition requirements difficult and in some cases minimal because as citizens we could not inquire about 28E agreements with the county nor was Carlisle at liberty to do so.

Requirements :

    368.11 paragraph 5 stipulates that " The mayor of the city proposing to annex the territory, or that person's designee, shall serve as chairperson of the public meeting. The city clerk of the same city or the clerk's designee, shall record the proceedings of the public meeting."

This chapter does not stipulate the mechanism by which "five percent of the electors" are to fulfill this requirement though the citizens attempted in two ways to do so in good faith efforts:
  1. The citizens held an election within the electors of the territory present for a mayor pro tem.
  2. Mayor Ray Schlicher of Carlisle was asked to attend the meeting but declined, indicating verbally that the same person eventually elected mayor pro tem should run the meeting. This consensual appointment is as close to appointment that he could come because of the existing Moratorium and the States application thereof.


Misapplication of Law by the Attorney General of the State of Iowa:

Through faulty argument which was used as the basis for dismissal the Attorney General and the City Development Board claimed that a city could not be forced to accept an involuntary boundary adjustment initiated by citizens of a territory. In fact the General Assembly clearly empowered both the State and the citizens to force a city to do so by inclusion of the "five percent of the qualified electors" element in the statute 368.11.

Involuntary Annexation is exactly what the name implies: boundary adjustment without consent. For the City Development Board and Attorney General to deny us that privilege due to our classification as a territory while conversely endorsing the efforts of a city to do so is clearly a violation of Article I Section 6 of the Constitution of the State of Iowa.

3. Regarding the Attorney Generals admonishment to the City Development Board that it was the duty of the courts to clarify the issues despite the acknowledgment of questions of the Constitutionality.

When arguments substantiated constitutional conflicts with the Attorney Generals interpretation of 368.4 and other interpretations were presented by Legislators, legal representatives of interested parties and citizens, which did not conflict with the Constitution, the Attorney General admonished the City Development Board to uphold its interpretation of the statute 368.4 and place the Board members affirmation to uphold the laws of Iowa above their oath to support the Constitution of this State.

When evidence presented demonstrated no immediate plans for the territory and the citizens pleaded with the State to elevate the issue to the courts by acceptance and thus relieve them of the financial burden of defending their Constitutionally guaranteed rights and privileges, the Attorney General affirmed the demonstrated favor of city privileges over citizens rights and privileges thus ignoring Article I section 2 of the Constitution of the State of Iowa.


THE GROUNDS ON WHICH RELIEF IS SOUGHT:
  1. The above listed Constitutional rights were violated or infringed upon.
  2. The legal advice given to the board to base their decisions upon was statutorily and historically incorrect and thus deficient and prejudicial.
  3. No point of violation of the moratorium agreement was forwarded or substantiated. The only argument forwarded by the Attorney General was the blatantly incorrect argument that even the State could not submit a plan since they were the "sole entity" who could develop or direct to be developed a "plan" and the law says a "plan" must be dismissed, even the state is barred from acting in an area with a moratorium. This position was clearly prejudicial to a fair hearing.
  4. The unsubstantiated opinions of the Attorney General concerning both 368.4 and 368.11 clearly due to a lack of research and deliberation.

THE RELIEF SOUGHT:
  1. Vacation of the City Development Boards dismissal of the petition of West Carlisle to Involuntary Annex the City of Carlisle, Iowa (A98-02).
  2. An order to recuse any Attorney General personnel with the exception of the elected official, who have acted upon, or been consulted upon, the issues contained within this appeal in order to allow the petitioners to proceed without adversity and prejudice with the board.
  3. A declaratory ruling of the scope of a 368.4 agreement specifying who is bound by the agreements and specification of who is not bound in addition to what proscriptions may be specified in such a resolution.
  4. A writ of mandamus to the City Development Board to treat the petition of the citizens of West Carlisle with a presumption of validity since it is only "involuntary" due to the statute the citizens were forced to utilize by the Attorney Generals interpretation of 368.4, this is in keeping with the "intent" of the Chapter expressed in 368.6.
  5. A writ of mandamus to the City of Carlisle to help fulfill the petition requirements of 368.11 if the City Development Board requires amendment. This writ is asked as remedy for the restrictions inflicted upon the citizens of West Carlisle by the City Development Board and Attorney General concerning the moratorium agreement which inhibited their efforts in the drafting of the citizens petition.
  6. A writ of mandamus to the City Development Board that any dismissal be voted upon only after a 30 day continuance to allow amendment or rebuttal.




















IN THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY

John Francis Anderson,
Mayor Pro Tem of the Territory
of West Carlisle, Polk County, Iowa
482-84-34-24

Petitioner,                                        A.A. No.

vs.                                                 PETITION FOR INJUNCTION

The City Development Board
of the State of Iowa

Respondent.

COMES NOW
the petitioner, pro se, and seeks an injunction to protect the status quo and keep the respondent from acting on petition A98-03 thus rendering any decision in AA_________ ineffectual.
  1. The clerk of the respondent has offices at 200 E Grand, Des Moines, Iowa, 50309.
  2. The plaintiffs address is 4491 SE 40th Street, Des Moines, Iowa, 50320
  3. There are no tangible liabilities at issue.
  4. We further plead that, if necessary, a temporary restraining order be issued to bar scheduled proceedings on A98-03 on August 27, 1998 to preserve the status quo.