IN THE IOWA SUPREME COURT OF IOWA
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CITY OF DES MOINES, IOWA

APPELLANT

VS.

CITY DEVELOPMENT BOARD OF
THE STATE OF IOWA, ET AL.,

APPELLEES


Appeal from the Iowa District Court For Polk County
Honorable Richard Blane II

________________________________________________________________________

Proof Brief of
Appellee John F. Anderson
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________________________________

John F. Anderson
Pro Se for John F. Anderson
4491 SE 40
th Street
Des Moines, Iowa 50320



Nature of the case;

Facts of proceedings 

Chronology of facts within proceedings;

ARGUMENT
;

I. The Trial Court did not err in treating a motion to dismiss as a motion for summary judgment.;

II. The trial Court did accept as true all portions of the city's petition, yet this acceptance left the petition with irreconcilable and incongruent assertions within the city's own pleadings;

FALSE ASSERTIONS WITHIN CITY'S APPEAL BRIEF;

    The City Development Board twice indefinitely stayed any action upon a petition for
    involuntary annexation filed by the city of Des Moines;

    While all of the respondents/appellees moved to dismiss the City's administrative appeal;

    On or about July 2, 1990, the city and the City of Carlisle entered into a written annexation
     moratorium agreement pursuant to Iowa Code Section § 368.4;

    On May 14, 1999 the District Court for Polk County issued its decision in the Anderson
    case. Effectively, this decision lifted the stay on the city's petition before the CDB;

    The CDB has not taken any action, let alone appropriate action, upon the city's annexation
     petition and in fact stayed the same for more than a year as of the filing of this action in the district court;

    The city will suffer irreparable injuries of substantial dimensions if the CDB is allowed to
    continue to avoid its statutory duties by staying indefinitely action on the city's annexation petition;

ACCEPTED AS TRUE TO SUPPORT THE MOTION TO DISMISS, THE CITY'S OWN PLEADING ATTACKS ITSELF IRREPARABLY;

III. The Court properly determined that the city did not demonstrate that it would suffer irreparable harm;

    Moratorium Agreement Execution;

    HISTORICAL DERIVATION OF STATUTE § 368.4;

    LEGISLATIVE INTENT;

    STATUTORY ANALYSIS;

    PROPRIETY OF THE STAY;

    Summary;

IV. Des Moines is prevented from seeking relief on the basis of the existence or expiration of the Carlisle Des Moines Agreement by the doctrine of 'in pari delicto' or, in the alternative,' principle of unclean hands'.;

CONCLUSION;

STATEMENT OF DESIRE TO BE HEARD IN ORAL ARGUMENT        






Nature of the case:

     This case is an administrative appeal of intermediate agency action. The City Development Board has placed an indefinite stay upon an involuntary annexation petition (A-98-03) tendered by the City of Des Moines. Subsequent to the imposition of the stay, the board has set the threshold for the stays termination as the ruling by the Iowa Supreme court upon two cases with direct associations to the Des Moines annexation petition. Des Moines is challenging the authority of the City Development board to impose a stay upon proceedings before that agency via chapter 17A(petition paren 9, 25-28,30(c,d,e,), 30(b,c,d,e,f,g,I,k,l,m,p,) inclusive App. pp ___).
     Des Moines claims it will suffer irreparable harm due to financial expenditures and the loss of its "usage" of an alleged annexing moratorium agreement with the city of Carlisle. (petition paren 29, 30 inclusive App. pp ___). The city further claims that review of final agency action would be insufficient as a remedy.
     Finding that the city failed to demonstrate that it would suffer irreparable harm or that review of final agency action would not provide adequate remedy and that the elements of 17A.19(1) had not been met ( ruling pp15 ), the District Court dismissed the city's petition for judicial review.
Facts of proceedings :

  1. The petitioner, Des Moines, is an incorporated municipality within Polk County, Iowa.
  2. The City Development Board (henceforth "CDB") is an executive branch agency, created within and administering chapter 368 of the Code of Iowa.
  3. Warren County is the elective representation for the Residents within the unincorporated and incorporated areas of Warren County, Iowa without and within the areas included in the involuntary annexation petition of the city of Des Moines.
  4. The Iowa Rural Rights Association (henceforth "IRRA")members listed are residents within the area of Warren County subject to the involuntary annexation petition of Des Moines.
  5. John Francis Anderson is a resident of the unincorporated area designated the territory of "West Carlisle", Polk County, in A 98-02 before the City Development Board, which is also subject to the involuntary annexation petition of the city of Des Moines. The Respondent represents himself in this proceeding.
Chronology of facts within proceedings:
  1. In July of 1990, Des Moines and Carlisle executed independent council actions, attempting to enter into an agreement titled as an annexing moratorium agreement which expires in July of 2000.
  2. On June 14 1998, after proper notice and subsequent to holding nominations and elections for clerk pro tem and mayor pro tem, the citizens of West Carlisle held a public meeting upon the West Carlisle involuntary annexation petition.
  3. On June15, 1998 the West Carlisle petition was filed with the CDB and designated A 98-02.
  4. On June 24, 1998 Des Moines filed an involuntary annexation petition with the CDB which was designated A 98-03 for land in Polk and Warren Counties, inclusive of West Carlisle and the areas resided in by members of the IRRA.
  5. On July 16, 1998 the CDB held hearings upon the West Carlisle petition. The CDB dismissed the West Carlisle petition upon the basis of the existence of the Des Moines/ Carlisle construction of an annexation moratorium agreement as validated by the CDB and Attorney General (henceforth AG).
  6. On July 16, 1998 the CDB held hearings upon the Des Moines petition. The CDB continued the hearing after deficiencies were identified in the petition.
  7. On August 5, 1998 Des Moines submitted an amended legal description, in an attempt to reform their petition which contained incorrect legal information and consequent untrue assertions discovered on July 16.
  8. On August 13, 1998 the Des Moines attempt to alter their petition was dismissed by the CDB.
  9. On August 13, 1998 the CDB reconsidered the West Carlisle petition and upheld their July 16, 1998 dismissal upon the grounds of the Des Moines/ Carlisle annexation moratorium agreement.
  10. On August 24, 1999 West Carlisle filed an appeal in Polk County District Court, AA 3155.
  11. On September 10, 1998 the CDB received and accepted the Des Moines Petition
  12. On September 10, 1998 the CDB stayed further action upon the Des Moines Petition indefinitely.
  13. On October 9, 1998 Warren county and the IRRA filed a joint petition of certiorari in Warren County District Court challenging the jurisdiction of the CDB in accepting the flawed Des Moines petition A 98-03.
  14. On March 9, 1999 the Warren County District Court dismissed the certiorari case of Warren County and the IRRA
  15. On April 8, 1999 Warren County and the IRRA appealed to the Iowa Supreme Court.
  16. On May 14, 1999 the District Court for Polk County, Judge Paulsen presiding, ruled in favor of West Carlisle reversing the administrative dismissal of the petition and remanding it back to the CDB for consideration.
  17. On June 8, 1999 the CDB appealed the West Carlisle case to the Supreme Court.
  18. On June 9, 1999 the city of Des Moines joined the CDB appeal of the West Carlisle case.
  19. On June 17, 1999 the CDB denied the motion of Des Moines to split their petition to exclude West Carlisle.
  20. On June 17, 1999 the CDB maintained their stay upon A 98-03 citing the two appeals before the Supreme Court directly concerning A 98-03. (West Carlisle case and Warren County/ Iowa Rural Rights Association case.)
  21. On July 6, 1999, Des Moines filed a petition of certiorari/ mandamus in Polk County District Court CE 38382. This suit failed to name either West Carlisle or John F. Anderson as a Respondent or failed to serve proper notice.
  22. On October 15, 1999 the Des Moines case, CE 38382, was dismissed in Polk County District Court.

  23. On November 4, 1999, Des Moines filed a petition for Judicial Review in Polk County District Court, A.A. 3362
  24. On February 15, 2000, Polk County District Court, Judge Richard G. Blaine II presiding, granted the CDB motion to dismiss.
  25. On March 7, 2000 Des Moines appealed the dismissal of A.A. 3362.



ARGUMENT:

    I. The Trial Court did not err in treating a motion to dismiss as a motion for summary judgment. The Court based its actions upon facts and matters brought into scope by the city in its pleading or properly falling within Judicial Notice based upon the issues raised first by the city. In questioning the discretion of the CDB to impose the "stay" the city also required the Court to weigh, outright, the merits and view the premises of both the "West Carlisle" case and the "Warren County" cases.


Preservation of Error: Appellant Des Moines states that "all of the issues raised in this brief point and all other brief points were preserved when the City resisted the motion to dismiss made by the CDB (CDB Motion to Dismiss, A;;. ____; city's Resistance to CDB Motion to Dismiss, App. ______). This appellee agrees.

Scope of Review:
The applicable scope of review, has been set forth by this court as follows:
Under chapter 17A, when we review a district court decision, we ask only whether the district court correctly applied the law. If our conclusions are the same as the district court's we affirm. If our conclusions are different, reversal may be required. City of Waukee v. City Development Board, 590 N.W.2d 712, 716 (Iowa 1999); citing Dickinson County v. City Dev. Comm., 521 N.W.2d 466, 468 (Iowa 1994)

Also;
Under the substantial evidence standard of review, the Supreme Court views the evidence in a light most favorable to upholding the district court's judgment. Benson v. Webster, 593 N.W.2d 126


ARGUMENT:

Motion to dismiss can neither rely on facts not alleged in the petition, except those of which judicial notice may be taken, nor can it be aided by an evidentiary hearing. Berger v. General United Group, Inc., 268 N.W.2d 630

"Judical notice" of the law includes notice of its true reading and of all matter which can legally affect its validity or meaning In re Arduino's Estate, 20 Ohio Dec. 461, 9 Ohio N.P.,N.S. 369 (emphasis added)

"Judicial notice" is either "judicial knowledge," which is what court must possess and take cognizance of, or "common knowledge," which is what court may declare applicable to the action without necessity of proof and for more speedy expedition of trials Strain v. Isaacs, 18 N.E.2d 816, 825, 59 Ohio App. 495. (emphasis added)

        Four factors bear on determination of issuance of stay of agency action: likelihood petitioner will prevail on merits after full hearing; whether irreparable damage will be suffered if stay is denied; whether public interest calls for discretion to be exercised to deny stay; and whether issuance of stay would substantially harm other parties interested in proceedings. Teleconnect co. v. Iowa State Commerce Com'n 366 N.W.2d 511 (emphasis added)

     In considering the West Carlisle (Anderson) and the Warren County Cases and their connections and affects upon the petition of Des Moines, the District Court is proper in taking judicial notice thereof. In fact, the guidelines of the Iowa Supreme Court require the District Court to weigh the merits of the West Carlisle and Warren County cases to determine if the stay in question is within the discretion of the CDB (see . Teleconnect co. v. Iowa State Commerce Com'n 366 N.W.2d 511) The second and third premises the city claims the District Court erred upon (Appellents proof brief pp 14) concern two separate cases, the outcome of which, concerning 368.11, will doubtless " affect its validity or meaning" :
     1. West Carlisle is a petition for 1543 acres of land which was remanded back to the CDB by Polk County District Court on May 14, 1999. This is a involuntary annexation petition, that precedes the Des Moines petition, for the area of West Carlisle. The CDB and Des Moines as intervenor have appealed the District Court ruling in West Carlisle's favor, overturning the dismissal and remanding that petition (A-9802) back to the CDB. (Supreme Court case 99-0932 ) The West Carlisle case (Anderson) is brought into scope no less than 8 times in the city's petition for judicial review thus the Court would have been remiss had it ignored it entirely as Des Moines wishes it had.
     2. The Warren County case directly attacks the practicable survival and existence of the Des Moines petition which will cease to be viable when the case is successfully ruled upon. It is only prudent for the Court to consider this cases outcome which would render any ruling in the Courts or progress before the CDB in favor of Des Moines moot and null. Des Moines brought this case of certiorari into the scope of issues at no less than 4 times in it's petition for judicial review.
     The taking of "judicial notice" of a matter is not necessarily more than a "prima facie" recognition of the matter, and does not import that the matter is indisputable. Scheufler v. Continental Life Ins. Co., 169 S.W.2d 359, 365, 350 Mo. 886. (emphasis added)



Summary:
     The city repeatedly brings the West Carlisle case and the Warren County case into the scope of review as both factual statements and argumentative assertions. The main contention of the case and the Supreme Courts rulings upon litigation of a nature evaluating a stay of agency action bring the two cases into scope. Even if the city had not mentioned either of the two cases the District Court would have had to take notice of them and weigh the merits of the cases, in order to see if the CDB had acted with undue discretion. The District Court properly exercised "Judicial notice" in considering the possible results of those cases, reliant upon agency expertise, in order to render a cogent ruling. Thus premised, the treatment of the motion to dismiss as a motion for summary judgment was proper and within the discretion of the Court.

    II. The trial Court did accept as true all portions of the city's petition, yet this acceptance left the petition with irreconcilable and incongruent assertions within the city's own pleadings. Des Moines has misrepresented the nature of the case and facts of the case in its appeal briefing.

      Allegation binds one who makes it, and when its truth militates against party who pleads it, it must be taken as true against him Lauman v. Dearmin, 69 N.W.2d 49

FALSE ASSERTIONS WITHIN CITY'S APPEAL BRIEF
.
     Though a motion to dismiss requires all allegations to be accepted as true, the city has improperly extended that premise by stating it's production of complaints as indisputable fact in it's appeal. The city's brief erroneously portrays contestable, inaccurate and invalid assertions as fact, seeming to have trouble discriminating between things it doesn't like and things that are indisputable fact.

    1. " The City Development Board twice indefinitely stayed any action upon a petition for involuntary annexation filed by the city of Des Moines." (Appellents proof brief pp 3)

The motion of the board imposing the stay was: "that we table this, application, until such time as we get some feeling back from the court action pending, based on the, action filed by, Carlisle, and reassess at that time." (CDB 09/10/98 tape 3 side 1 min 1.) This "stay" has no termination threshold excepting a vote of the board thus there has only been one "stay" which has never expired or been terminated.

         2. "While all of the respondents/appellees moved to dismiss the City's administrative appeal "
        (Appellents proof brief pp 3)


This appellee/respondent did not move nor join in any motion to dismiss. The District Court acknowledged this in its' ruling (ruling page 16 app pp___). The city, being party to the action and by reading the ruling, should not have presented as fact what it knows to be, and is obvious in the cases content, false.
    3. "On or about July 2, 1990, the city and the City of Carlisle entered into a written annexation moratorium agreement pursuant to Iowa Code Section 368.4…"(Appellents proof brief pp 4)

Though captioned with the statutory title of § 368.4 the "agreement" did not comply in any instance with any single statutory element it came in contact with. The published notice was faulty. The resolutions the two councils voted upon are incongruent. No "specific" territory or "territory" of any definition is actually described. This "annexing moratorium agreement" which the city leans upon heavily, is void in abnitio and survives only with the extraordinary aide lent by the CDB and AG. The city is fully aware of the deficiencies invalidating this agreement.
    4. "On May 14, 1999 the District Court for Polk County issued its decision in the Anderson case. Effectively, this decision lifted the stay on the city's petition before the CDB."(Appellents proof brief pp 6)

    also;

    5. On June 17, 1999, the CDB met to consider, among other items, whether to reinstitute the stay upon the city's annexation petition which had expired with the ruling of the Polk County District Court on the Anderson case. All of the Respondents argued in favor of reinstituting the stay. (Appellents proof brief pp 6)

The stay never expired, nor was it voided by vote of the board, nor otherwise been terminated. The argument on June 17, 1999 was for the sustaining of the indefinite stay upon the city's petition and opposed to division.
    6. "The CDB has not taken any action, let alone appropriate action, upon the city's annexation petition and in fact stayed the same for more than a year as of the filing of this action in the district court". (Appellents proof brief pp 8)

This allegation by the city acknowledges that there was, in fact, only one stay and not the two stays the city alleges. The appellant Des Moines is fully aware that an administrative stay is, in and of itself, action. The perspective appropriateness of that action is dependent upon whether the stay furthers or retards your desires.
    26. "The city will suffer irreparable injuries of substantial dimensions if the CDB is allowed to continue to avoid its statutory duties by staying indefinitely action on the city's annexation petition…"(Appellents proof brief pp 8)

The postulated allegations Des Moines claims as "facts" from this point forward in their "FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW" are assertions of disputable conjecture rather than definable or verifiable facts. Dubiously labeled as "fact", these points more properly reappear within the argument section of the city's petition and will be addressed appropriately later.

ACCEPTED AS TRUE TO SUPPORT THE MOTION TO DISMISS,
THE CITY'S OWN PLEADING ATTACKS ITSELF IRREPARABLY.



Allegation binds one who makes it, and when its truth militates against party who pleads it, it must be taken as true against him Lauman v. Dearmin, 69 N.W.2d 49

     The city made multiple allegations and actual factual statements in its petition for judicial review that, when accepted as true, were diametrically opposed and thus absurd when considered in toto. This problematic pleading of argument, resolved as true to support the motion to dismiss, collided with the indisputable statement of fact by the city. When weighting fact and argument, fact must prevail since the court is proscribed from supplying anything to correct the city's deficiencies.

Fact:
    5. On June 24,1998, the City of Des Moines filed a petition for Involuntary Annexation of certain areas (including that lived in by Anderson and the other residents of "West Carlisle") with the CDB
Argument:
    30 n. The Anderson appeal involved questions related only to the Anderson
    petition and does not involve the city's Petition in any way, shape or form.


Fact:
    13. On October 9, 1998, Respondent Joseph R. Dunn and other residents of Warren County, as well as Warren County itself and the Iowa Rural Rights Association, filed a Petition for Writ of Certiorari with the Warren County District Court challenging the decision of the CDB not to dismiss the city's Petition.
Argument:
    30 o. The Warren County appeal involves only the question of jurisdiction
    and the exhaustion of administrative remedies and does not involve any
    substantive question related to the city's Petition of Involuntary
    Annexation.


     These examples of the contradictory assertions by the city, when resolved in favor of the city and subsequently in favor of the verifiable facts since both incongruent assertions cannot be true, require the Court to examine the material further from the city's petition in order to sort out which "truth" of the city is "truer" within Judicial notice.

A pleading must present a legally justiciable issue; a deficiency will not be supplied by the court. Appling v. Stuck, 164 N.W.2d 810

     While arguments must be settled in favor of the non-moving party, the Court is not bound to accept fanciful allegations as true in the face of factual assertions by that same party; a motion to dismiss does not require the court to abandon its integrity. Des Moines makes note of the West Carlisle case and the Warren County case as matters of fact thus requiring the Court to examine the material in order to determine if the stay at issue here is proper or an act of excessive discretion. (see . Teleconnect co. v. Iowa State Commerce Com'n 366 N.W.2d 511)

     The disputing of the "conclusory allegation" definition pertaining to the loss of the moratorium agreement is unfounded and unsupported. The city merely wishes the court to believe it will suffer a loss because it says it will, though it offers no substantiation for the claim. The dearth of a statutory or dictionary definition leaves only an irrelevant semantic debate of the word "conclusory".

General allegations as to the status and condition of persons or corporations, without stating the facts to support such allegations are mere conclusions of law Baily v. Iowa Veef Processors, Inc., 213 N.W.2d 642

Pleader must plead ultimate facts in case and he cannot plead conclusions by themselves, and a good pleading consists of statement of ultimate facts in case, and, when so stated, pleader has right to plead his conclusions based upon those facts. Halvorson v. City of Decorah, 138 N.W.2d 856

     Des Moines sets out in it's petition for judicial review with a listing of factual citations and then erodes to imprecise allegations intermixed with fact, and finally petulant, unfounded complaints mixed with fact. There are very few ultimate facts contained in the allegations, those that are present fatally refute the city's allegations.

SUMMARY

     The city attacks it's own pleading from within. The city improperly construes its' own allegations as fact in briefing this appeal, further diminishing the veracity of their claim. Des Moines undermines their own efforts by presenting fact and allegation containing irreconcilable polarities of position upon the same subject, this forces the court "outside the four corners" of the cities petition to determine which of the cities facts or contentions are truthful. Even remaining within the petition, the court must decide exactly which "assumed truth" or actual "truth" is more correct based upon judicial and common knowledge since both cannot be sustained upon the same throne in opposition.

    III. The Court properly determined that the city did not demonstrate that it would suffer irreparable harm. The city merely wishes the Court to abandon Judicial knowledge and common knowledge to support it's unfounded and insupportable contentions. The stay of agency action is proper, protecting the interests of both the city and the other parties involved.

     The city seems to feel that common knowledge, statutory content or judicial knowledge or information of any type beyond the printed matter of it's petition should be myopically disregarded because it is not resident within their petition. The city placed absurd contentions within their petition and, unfortunately for them, they also placed undisputed facts which make their own allegations wither when their "facts" militate against their own unfounded pleadings. Their complaints cannot stand alone, within or without the resolution in their favor a motion to dismiss requires. It is apparent that the city anticipated a motion to dismiss and hoped that it would make their absurd contentions valid. However, the city failed to plead any facts to support their contentions which fall so far beyond "truthful" that acceptance of their allegations as "fact" is repugnant to even insincere authenticity.

    1. The stay will require the expenditure of huge amounts of public funds to update the information in the annexation petition (Appellents proof brief pp 20)

The capabilities of the plaintiff to furnish municipal services must be determined on the conditions existing when the annexation proceedings were initiated. Town of Clive v. Colby 121 N.W.2d at 115

Question of capability of municipality to furnish substantial municipal services and benefits not theretofore enjoyed by territory sought to be annexed is to be determined as of time the annexation proceedings are initiated. I.C.A. § 362.26, subds. 1-6. City of Bettendorf v. Alben, 154 N.W.2d 836
"City made requisite affirmative showing that it was capable, as of date annexation proceedings were initiated, of extending into territory sought to be annexed…"Id.

Question of municipal capability is to be determined as of date annexation proceedings are initiated. City of Clinton v. Owners of Property Situated Within Certain Described boundaries, 191 N.W.2d 671

     This contention by Des Moines is preposterous in the face of the courts cited above. The city cannot change the content of the petition, which was submitted only upon the suffrage of their city council, any more than their police can alter statutes.
     While they are free to withdraw this petition and submit a different proposal they cannot freely alter what has already been voted upon and accepted. Thus, since no changes can be made, and none can be required due to court citations, there is no possibility that any public funds, let alone "huge amounts", can be expended to "update the information in the annexation petition".
    2. The stay prevents the city from taking advantage of the annexation moratorium agreement it has with Carlisle. (Appellents proof brief pp 20)

     The "usage" the city contemplates losing is not statutorily founded, this "usage" being a contrivance of the city outside of the statutes of Iowa; or, in the alternative, while the agreement will expire the effect will survive as long as Des Moines sustains the petition (A-9803). Preremptorily, the agreement cited is invalid and lends no foundation to any argument. Thus no loss can conceivably be incurred in this instance.
     The subsequent listing of statutory non-compliance is lengthy only because of the plethora and thoroughness of errors the city and state have committed in enacting and sustaining an agreement based on a three sentence statute. I cannot envision any way that the agreement could further contravene the statute without the city attempting to extend the agreement and continuing its poor conduct.
Moratorium Agreement Execution

     Though captioned as an agreement pursuant to § 368.4 it did not comply, in any instance, with any word or premise of the statute. The CDB failed its duty by not dismissing the Des Moines petition outright. Thus, while citing § 368.4, both Des Moines and the CDB are acting outside of the law to obtain the effect of barring the Iowans of "West Carlisle" from their statutory privileges under chapter 368, which is a major contention of the West Carlisle case (Supreme Court case 99-0932) and the "loss" the city anticipates. The city is also annexing the land inferentially described in the agreement thus contravening even the statutory title, "annexing moratorium". (Appen pp____)

Moratorium ['môr-e-'tôr-e-em] pl: -riums or: -ria New Latin, from Late Latin, neuter of moratorius dilatory, from morari to delay, from mora delay
1 a: an authorized period of delay in the performance of an
obligation (as the paying of a debt)
b: a waiting period set by an authority
2: a suspension of activity
Merriam-Webster's Dictionary of Law ©1996. (emphasis added)

§ 368.4 Annexing Moratorium. A city, following notice and hearing, may by resolution agree with another city or cities to refrain from annexing specifically described territory for a period not to exceed ten years and, following notice and hearing , may by resolution extend the agreement for a period not to exceed ten years each. Notice of a hearing shall be served on the Board, and a copy of the agreement and a copy of any resolution extending an agreement shall be filed with the board within thirty days of enactment. If such an agreement is in force, the board shall dismiss a petition or plan which violates the terms of the agreement. (emphasis added)

"A CITY "

§ 362.2(4) "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.(emphasis added)

     The definition of "city" specifically restricts jurisdiction to within the city limits and proscribes the agreement from having any effect upon the population beyond their borders within the "special-purpose district or authority" of a moratorium agreement. However, the city directly interferes with the statutory privilege of rural Iowans in paragraph 4 of the agreement and the AG, and CDB enable that action.

"FOLLOWING NOTICE AND HEARING "

     The resolution adopted by the Carlisle council failed to adhere to that of the required public notice for the hearing on the agreement.
     The resolution adopted by the Des Moines council failed to adhere to that of the required public notice for the hearing on the agreement.

"MAY BY RESOLUTION AGREE"

     The discordant resolutions of the two councils dealt with different directions from an undefined line. Thus, due to differing resolutions, there was no "agreement" by resolution. (in fact, West Carlisle was excluded from the actual agreement within the Des Moines resolution and the Carlisle notice).

"TO REFRAIN FROM ANNEXING "

     It has not been the intention or practice of the city to refrain from annexing land from within the implied area of the agreement, rather it has annexed freely and liberally on their side of the "line".


"SPECIFICALLY DESCRIBED TERRITORY"

     There are no boundaries of a "specifically described territory" only one point in Warren County without a radius or two other points required for the definition of a "territory" in Euclidean geometry, nor even two identifiable points to correctly define a line which, by definition, "specifically" does not describe any area at all.

"NOTICE OF A HEARING SHALL BE SERVED ON THE BOARD"

     Both cities failed to send notice of hearings to the CDB. There is no discernible date within the CDB's files to prove that the cities filed the agreement before the 30 day window expired thus also failing to comply with sentence 2.

     The third and final sentence of the statute is not the cities to comply with. This "disagreement" by resolution, which the city leans upon heavily, and complains of the loss of, contravenes every statutory premise and is thus void ab initio.
     The fact that the CDB does not check agreements for statutory compliance or construction should be noted by the Court. This total lack of validation should dismiss any notion that may be forwarded by the AG, the CDB or the city of Des Moines that the CDB has any agency expertise concerning § 368.4. The AG, as counsel for the CDB, wrongfully validated the agreement at the July 16, 1998 meeting of the CDB, even when faced with questions regarding its legitimacy during the hearing on the West Carlisle petition (A-9802). In this instance, and upon appeal for rehearing, none of the facts support the AGs decision which the CDB accepted in a quasi judicial discretionary decision when the city plead affirmatively for the agreements validity.

Wrongful acts done by officer "virtute officii" are those which are within his authority when properly performed, but are performed improperly, while such acts done "colore officii" are those entirely outside or beyond authority conferred by office Drake v. Keeling, 299 N.W. 919

A decision which requires the exercise of discretion and which on its face demonstrates no consideration of any of the factors on which the decision should be properly based constitutes an abuse of discretion as a matter of law. Schmid v. Olsen, 330 N.W.2d 547, 111 Wis. 2d 228 (emphasis added)

Generally, burden of proof is on party asserting affirmative issue in administrative proceeding Norland v. Iowa Dept. of Job Service, 412 N.W.2d 904

"HISTORICAL DERIVATION OF STATUTE"

     The CDB has incorrectly applied the statute, and clearly altered the meaning of the law, which derives directly from pre 1975 § 362.26(7) which declared :
"After the adoption of such resolutions and the execution of such agreement by all of such agreeing cities and towns, no agreeing city or town shall commence any annexation proceedings under the provisions of this section as to any specifically described territory which is the subject of said agreement…" 1975 § 362.26(7) (emphasis added)

     The code editors "new" wording of § 368.4 appears upon page 14 of 1972 HF 574 without legislative amendment to the code editors work. In 1972 HF 574 the code editor revised and redistributed vast amounts of code in over 200 pages with which the General Assembly enabled City Home Rule. That legislative file contains a sentence which erases any doubt of the goals of the legislature in enacting § 368.4:

Part 1 of this Division has definitions applicable to the Division, and Part 2 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. 1972 HF574 page 201 (emphasis added)

" LEGISLATIVE INTENT"

     Thus the "Legislative intent" of HF 574 and subsequent 1972 Iowa Acts, ch. 1088 which promulgated § 368.4 can easily be divined. That intent was not to change or alter the functioning of the prior statute (§ 362.26 (7)), simply to migrate it to the new Chapter. The 1972 Acts cast an extremely dim light upon the changes; the House File fully illuminates what the General Assembly sought to accomplish, establishing beyond doubt that no change in operation of § 362.27(7) was intended. If further demonstration of the Legislatures intent concerning the rural territories is required, the court need look no further than contemporary § 368.6 which has absolutely no allusion of, or for, the wishes of cities.

§368.6 Intent -- It is the intent of the general assembly to provide an annexation approval procedure which gives due consideration to the wishes of the residents of territory to be annexed, and to the interests of the residents of all territories affected by an annexation. The general assembly presumes that a voluntary annexation of territory more closely reflects the wishes of the residents of territory to be annexed, and, therefore, intends that the annexation approval procedure include a presumption of validity for voluntary annexation approval.

Supreme Court's ultimate goal in interpreting statutes is to give effect to legislative intent. City of Waukee v. City Development Board 590 NW 2d 712

Revised criminal code offenses are to be construed as altering prior law only if legislative intent to change prior law is clear. Eggman v. Scurr Iowa, 311 NW 2d 77(emphasis added)

A mere rearrangement of statutes in code revision, or dividing one section into several sections, does not, without legislative intention, change purpose, operation and effect therof. Silver Lake Consol. School Dist. V. Parker, 1947, 29 N.W.2d 214, 238 Iowa 984. (emphasis added)


     In the light of the clear intent of HF 574 to enact statutes "similar to present law" (1971 § 362.26(7)) and the complete lack of codicil to bring about the current effect of the law as the cities and the CDB have altered the statutory meaning and operation in their application of § 368.4 and the blatant contravention of legislative intent, it is absurd to entertain that Des Moines has any "usage" which it will loose.
"
STATUTORY ANALYSIS"

     No land under an annexing moratorium can be annexed by any party to the agreement under the correct statutory interpretation and rules of statutory construction contained within the Code of Iowa. If the deficiencies of the agreement can be overlooked, then according to sentence 3 of § 368.4, the City Development Board had (and has) a duty to dismiss the Des Moines petition which, the city does not dispute, includes the area of West Carlisle, and thus violates the statute in both it's past and present form.

Where a revised statute is ambiguous or susceptible of two constructions, reference may be had to the prior statute to ascertain the Legislatures intent. Jones v. Mills County, 279 N.W. 96, 224 Iowa 1375.

Changes made by revision of statutes will not be construed as altering law, unless such intention is clear, and if revised statute is ambiguous or susceptible of two constructions, reference may be had to prior statutes for purpose of ascertaining legislatures intent Benschoter v. Hakes, 8 N.W.2d 481, 232 Iowa 1354

Where a word is defined in a code section at the beginning of a chapter, court must assume that word has same meaning wherever else it is used in the chapter, unless otherwise stated. Lawson v. Fordyce, 21 N.W.2d 69, 237 Iowa 28

Code provisions must be liberally construed to promote objects and assist parties in obtaining justice (code 1924, 64) Arthaud v. Griffin, 217 N.W. 809, 205 Iowa 141.

§4.6 Ambiguous Statutes ---- interpretation. If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters:
  1. The object sought to be attained.
  2. The circumstances under which the statute was created.
  3. The legislative history.
  4. The common law or former statutory provisions, including laws upon the same or similar subjects.
  5. The consequences of a particular construction.
  6. The administrative construction of a statute.
  7. The preamble or statement of policy. (emphasis added)

§ 4.10 Reenactment of statutes --- continuation. A statute which is re-enacted, revised or amended is intended to be a continuation of the prior statute and not a new enactment, so far as it is the same as the prior statute.

Statutory construction ultimately is judicial function, although court will give weight to agency's construction of statute so long as agency does not purport to make law or change meaning of law. Iowa Southern Util. B. Iowa State Commerce 372 NW 2d 274 (Iowa 1985) (emphasis added)

     The first sentence of § 368.4 allows cities to agree to refrain or, in other words, mutually proscribe both parties from annexing the specific territory of the agreement for up to ten years with the option of extension. The usage of the word(s) "city" unequivocally restricts the effect of the agreement from any affect of rural residents. The use of "specific" would require that a "meets and bounds" description be used to indicate the area of the agreement. A variable watercourse and illusory line are the antitheses of the word "specific" while the use of a line fails to define anything at all (including a second identifiable end point thus also failing to identify even a "specific" line by any definition.)
     In this case the CDB and the city of Des Moines have transgressed every premise in all three sentences of § 368.4 they contacted, in an attempt to thwart the desires of Iowa citizens beyond the cities jurisdiction by stripping them of their statutory privileges as chapter 368 expresses them. Under this conspiratorial concord, Des Moines has laid what it declares, and the CDB and AG enforces, as an unquestionable claim upon area and citizens beyond it's limits without those citizens consent or suffrage, thus violating the definitions of 362.1, the legislative intent of § 368.6, the right of due process and the right of equal application of laws, among other violations, while concurrently the CDB has violated the statutory duty imposed in § 368.4 to dismiss the city's petition.

        Iowa Code § 4.1 (36 (a)) The word "shall" imposes a duty.

Conclusion:

     The statutorily correct operation of § 368.4 presents an insurmountable bar to the Des Moines annexation for all land within Polk county. The improper operation sought by Des Moines and granted these agreements by the CDB has been rejected by the District Court and is currently the subject of litigation before the Supreme Court in case 99-0932.
     The Des Moines-Carlisle agreement completely lacks statutory compliance with § 368.4 and is thus void ab initio. The CDB has failed its duty that § 368.4 imposes to dismiss if, in the alternative, the agreement were not invalid.
     Also in the alternative, the sustaining of the Des Moines petition A98-03 perpetuates the effect of the agreement until such time as it is dismissed by the CDB, the Committee (§ 368.14), the Courts, or withdrawn by the city.
     In any case, there is no conceivable "loss" let alone irreparable harm that the city can, or as it claims would, suffer due to the stay of agency action.

    3. The stay may last forever and subject the city to continuous and overwhelming litigation expenses for years to come. (Appellents proof brief pp 20)

     The threshold for the "stays" termination has been set to the resolution of the West Carlisle and Warren county cases before the Iowa Supreme Court. While "indefinite" is an unknown it does not approach the interminable and immortal meaning of "forever" as the city exaggerates.
     The claim of "litigation expenses" is both absurd and offensive to many of the appellees. While Des Moines has resources in the hundreds of millions of dollars and a staff of lawyers on salary, the members of the Iowa Rural Rights Association and this respondent have had to utilize after taxes household income to defend ourselves and our homes from this abuse of the Iowa Statutes.
     Des Moines has a staff of 17 lawyers ( the same as they did before embarking on this annexation effort) who are paid the same salary to do nothing or to work 24 hours per day 7 days a week. There is no tolling of overtime allowed or charging of "litigation" fees according to the city.
     There is no "overwhelming" or even significant expense for the city to litigate this case. In the alternative, compared to the burden the city has imposed on others and the relative resources available to them, there is no corresponding measure of loss for the city to complain of.
    
    4. The monetary losses suffered by the city in 1 and 3 above are not recoverable. (Appellents proof brief pp 21)

     Since there is not, and cannot be, any need to update the information in the petition, number "1" can incur no monetary loss for the city to contemplate recovering let alone expending.
     Since the contentions of number "3" are absurd and there are no "litigation expenses", "overwhelming" or otherwise for the city to suffer, there is no loss for the city to contemplate recovering.
    5. The loss of the value benefit of the annexation moratorium agreement is not recoverable by the City. (Appellents proof brief pp 21)

     Since the agreement is void ab initio there is no valid agreement to suffer the loss of. In the alternative, since there is no legal standing for the "usage" the city contemplates, there is no loss. Also in the alternative, while the city is free to sustain its' petition, the effect of the agreement will likewise be perpetuated and the city can suffer no loss.

PROPRIETY OF THE STAY

    
The stay of agency action is proper, protecting the interests of both the city and the other parties involved.

Four factors bear on determination of issuance of stay of agency action: likelihood petitioner will prevail on merits after full hearing; whether irreparable damage will be suffered if stay is denied; whether public interest calls for discretion to be exercised to deny stay; and whether issuance of stay would substantially harm other parties interested in proceedings. Teleconnect co. v. Iowa State Commerce Com'n 366 N.W.2d 511

     The stay was imposed to preserve the status quo and thus prevent the loss of the fruit of successful action for all parties of this suit, inclusive of Des Moines.
     After West Carlisle was successful in district court, there was legitimately less assurance that the state or city would prevail upon appeal, thus achieving the first threshold of the stays propriety.
     Irreparable damage, to both the city (if allowed to move forward to complete the process and begin infrastructure emplacement) and for the citizens opposed (who's legal remedies would possibly have been thwarted by the same forward movement if allowed), was prevented, meeting the second threshold.
     Without the stay, an imminent loss of state and municipal public funds would be pending, if either the West Carlisle or Warren County suits were successful, thus meeting the third threshold.
     Imposition of the stay could factually harm no party thus meeting the fourth criterion for propriety. Lifting of the stay would produce all the detrimental effects listed above.

Summary

The city presents 5 major contentions to substantiate their irreparable harm (proof brief pages 20-21) none of which are well plead or supportable.
  1. The cities petition cannot be altered and will not require updating.
  2. The moratorium agreement is void. There is no statutory "usage" for the city to lose, and the effect of the agreement will remain as long as the city maintains their petition (A-9803)
  3. The city will incur no "litigation" expenses outside their normal budget.
  4. There are no monetary losses to anticipate recovering.
  5. There is no statutory "benefit" to lose or their maintaining of their petition will perpetuate the alleged agreements effect in the alternative.

     The city fails to present any conceivable loss let alone a loss nearing the level of irreparable harm. The first three issues the city presents fail upon cursory inspection and the application of meager empirical Judicial or common knowledge. The final two fail upon the total lack of substance in the first three issues the city alleges.
     The city's contentions are groundless and the indefinite stay the CDB has imposed upon the city's involuntary annexation petition is proper.

    IV. Des Moines is prevented from seeking relief on the basis of the existence or expiration of the Carlisle Des Moines Agreement by the doctrine of "in pari delicto" or, in the alternative," principle of unclean hands".

Preservation of Error: In the cities petition for judicial review, the city references and relies upon the Des Moines - Carlisle annexing moratorium throughout. (petition paren 3, 29b, 29e, 30j, 30 App pp -------). Furthermore, the city presents the existence and validity of the agreement and its anticipated "loss" as one of , if not the, major cause for action within this appeal.( Appellant proof brief )
     The improprieties of the agreement were drawn forth in "respondent Anderson's answer paragraph 3, (App pp ____), 29(b) (App pp ___), 29(e) (App pp___), 30(j)(App pp____). The cities arguments concerning this agreement cannot stand since there is absolutely no foundation to premise them upon, the court would be entrapped as a participant in this illegal statutory conduct if it neglected to inspect the origins of the city's claim.

SCOPE OF REVIEW:

A litigant will not be permitted to entrap the court by an invitation to commit error. In re Iwers' Estate, 280 N.W.579, 225 Iowa 389

Argument:

Purpose of in pari delicto doctrine is to deter future misconduct by denying relief to one whose losses were substantially caused by his own fraud or illegal conduct, and public policy considerations are not affected by theory upon which wrongdoer seeks recovery. General Car & Truck Leasing System, Inc. v. Lane & Waterman, 557 N.W.2d 274

Unclean hands principle. Principle that one who has unclean hands is not entitled to relief in equity. Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So.2d 73, 78, 79, 80.

Generally, person cannot maintain action if, in order to establish cause of action, he must rely in whole or in part on illegal or immoral act or transaction to which he is party, or to maintain claim for damages based on his own wrong or caused by his own neglect, or where he must base his cause of action in whole or in part on violation by himself of criminal or penal laws. Tate v. Derifield, 510 N.W.2d 885

     It is obvious from the exhaustive review of the content and execution of the Carlisle- Des Moines moratorium agreement in section III (2) of this brief that the city, only enabled by the support from the State CDB and AG, sought to place any recourse to involuntary or voluntary annexation beyond the reach of the residents of the territory between the two cities. Paragraph 4 of that agreement does no less than design to conspire through contract and agreement to interfere with the free exercise and enjoyment of the rights and privileges secured to Iowans beyond either cities jurisdiction by the constitution and laws of the state of Iowa.

This Agreement is applicable to all annexation proceedings, to the fullest extent allowed by Chapter 368 of the Iowa Code with respect to the above described areas. Each city participating in this agreement agrees that it shall not annex in violation hereof and further agrees that it will take action to the fullest extent allowed by law to prevent and discourage voluntary annexation pursuant to section 368.7 of the Code of Iowa, and the cities will not give consent to petitions or applications for an annexation under said sections of the Iowa Code which would violate the terms of this agreement.

     It is only with the complicit participation of the Iowa Attorney General and the CDB that the city has been empowered to interfere with the statutory rights of those outside its jurisdiction with this illegal and illegitimate agreement. Endorsing as valid, and granting an operation wholly outside the statute, this "moratorium agreement" which fails to attain validity at every stage without the manifested licentious support of the State. Both the city and State are acting contra bonos mores.

conspire [ken-'spir] conspired conspiring
Latin conspirare to be in harmony, to join in an unlawful agreement, from
com- together + spirare to breathe
: to join in a conspiracy
Merriam-Webster's Dictionary of Law ©1996

illegal [il-'le-gel]
: contrary to or in violation of a law: "illicit" "unlawful"
Merriam-Webster's Dictionary of Law ©1996.

illegitimate ['i-li-'ji-te-met]
2: not valid according to law
  1. Merriam-Webster's Dictionary of Law ©1996.
  2. constitute an "agreement," there must be a proposal by one party and an acceptance by another, which must be manifested by some appropriate act. White v. Allen Kingston Motor Car Co., 126 N.Y.S. 150, 152, 69 Misc.627.

When a city lays aside its sovereignty, and places itself in the position of a contracting power, it subjects itself to the laws controlling the natural person. City of Burlington v. Burlington & M.R.R. Co., 1875, 41 Iowa 134.


     Des Moines has clearly undertaken to deprive rural Iowans beyond their
jurisdiction of statutory privilege with an illegal, illegitimate and immoral agreement. Acting of its own accord it drew up agreements with similar wording and impelled the surrounding communities of Altoona, Pleasant Hill and Carlilsle to enter into the agreements. The execution of the Des Moines - Carlisle agreement was a complete failure in procedure, execution and construction yet the Attorney General and CDB validated the agreement in a clear abuse of discretion.
     There is no allowance in 368 to deprive 5% of the electors of the statutory privilege of § 368.11 nor any to proscribe § 368.7 proceedings. The city and CDB are changing the meaning of § 368.4, working outside of and contrary to the enabling statute, to deny the privileges of persons beyond the city's jurisdiction, defined in § 362.2. It is only with the complicit endorsement and cooperation of the Iowa AG and CDB that the city was able succeed in having the West Carlisle petition dismissed, to deny the statutory privilege of the residents of West Carlisle. It can be easily construed that property damage and duress have been inflicted by the legal fees and the demands of time imposed by this and other legal defenses, regardless, we have suffered substantial loss under this contrivance of Des Moines with the State as the cities intercessor.
     Of greater difficulty is determining who or whom to accuse with any transgression due to the anonymity that government and the passage of time bestows upon any or all of the parties to this conspiracy or plan of the city. However, this interference with statutory privilege wrought upon rural Iowans by Des Moines as a contracting power and the State of Iowa as the administrative agency(ies) can readily be defined as a Class D Felony pursuant to § 729.5(1) which reads:

§ 729.5 1. A person, who acts alone, or who conspires with another person or persons, to injure, oppress, threaten, or intimidate or interfere with any citizen in the free exercise or enjoyment of any right or privilege secured to that person by the constitution or laws of the state of Iowa or by the constitution or laws of the United States, and assembles with one or more persons for the purpose of teaching or being instructed in any technique or means capable of causing property damage, bodily injury or death when the person or persons intent to employ those techniques or means in furtherance of the conspiracy, is on conviction, guilty of a class "D" felony. (emphasis added)

Generally, burden of proof is on party asserting affirmative issue in admin-istrative proceeding Norland v. Iowa Dept. of Job Service, 412 N.W.2d 904

Evidence is not "substantial" if a reasonable mind would find the evidence inadequate to reach the same conclusion as the administrative agency. Ringland Johnson, Inc v. Hunecke, 585 N.W.2d 269

     Though Des Moines claims the agreement was reached under its broad municipal powers, and the State agrees with the extra-statutory interpretation, neither the execution nor the derived application of the agreement is within the bounds of the statute or associated procedure. For the city, the CDB, and the AG to view the agreement as valid and the evidence of that holding substantial, despite all the inherent defects in execution and construction, and subsequently utilizing that illegitimate and illegal agreement to prevent the Iowans within West Carlisle from enjoying or exercising the statutory privileges of chapter 368 is both immoral and also illegal according to the Iowa statutes. In laying aside its sovereignty to reach this/these agreements, the city has made itself subject to the laws controlling the natural person and is thus "capax doli".

Capax Doli Lat. Capable of committing crime, or capable of criminal intent. The phrase describes the condition of one who has sufficient intelligence and comprehension to be held criminally responsible for his deeds. Blacks Law Dictionary

Summary:
     There is no doubting that Des Moines has interfered with the statutory rights of rural Iowans beyond their jurisdiction. The agreement is illegitimate due to errors of construction and execution and thus illegal. There can be no disputing that this oppression has occurred only with the advocacy and willingness of the AG, virtute officii, and CDB to ignore fatal flaws within the Des Moines / Carlisle agreement when, as the administrating agency and legal counsel thereof, they have a duty to ensure that the agreements submitted to it complied with both procedure and with statutory requirements; ignoring the deficiencies of the agreement and its enactment is the epitome of abuse of discretion. If the CDB and AG been dutiful and applied even superficial attention to the details of the agreement, the city would have been properly directed to "try again" or they would not have dismissed West Carlisle upon the basis of an agreement that fails to define any of the required terms nor even to "agree" by resolution. Simply because of the difficulty in discerning exactly who is at fault and what time period the fault lies in, the city should not be allowed to profit from its and others acting in collusion with its illegal and immoral actions. Under the doctrine of "unclean hands" the city of Des Moines should not be allowed to benefit from, or seek shelter within an agreement that is illegal, invalid, and immoral in every sense of those words. The Court should not allow itself to be entrapped by the city and State as a supporter of an agreement not just riddled with error but vaporized with statutory and common law contravention.

CONCLUSION:
    
For the reasons contained within this brief, John F. Anderson prays that this Court affirm the District Courts dismissal of the Des Moines petition "for lack of subject matter jurisdiction as to all Respondents".
STATEMENT OF DESIRE TO BE HEARD IN ORAL ARGUMENT
Notice is hereby given that Appellee John F. Anderson desires to be heard in oral argument on this appeal.

Respectfully Submitted
_______________________________
John F. Anderson Pro Se