John Francis Anderson,                                )
Mayor Pro Tem of the Territory            )
of West Carlisle,                                         )         CL 79454
Polk County, Iowa                                        )
XXXXXXXX                                                     )
                                                                      ) BRIEF IN SUPPORT
Petitioner,                                                      ) OF RESPONDENT'S
                                                                      ) MOTION TO DISMISS
The Secretary of State                                  )
of the State of Iowa                                        )
Respondent.                                                   )
COMES NOW the Respondent, Secretary of State of the State of the State of Iowa, through undersigned counsel, and offers the following argument in support of the Secretary's Motion to Dismiss:
      I Introduction.
    Petitioner, through a Petition for Declaratory Judgment, seeks
a writ of mandamus directing the Secretary of State to place two public measures on the 1999 ballot as state-wide referendum and initiative . Recognizing the absence of statutory provisions setting forth a procedural mechanism for voter-initiated public measures, the Petitioner argues that the citizens hold an inherent power to initiate legislation, consistent with Article 1, Section 2 of the Iowa Constitution. Petitioner seeks judicial recognition and enforcement of this inherent right.
        The Iowa Supreme Court has directly held that all of the inherent legislative power of the people, referenced within Article 1, Section 2 of the Iowa Constitution, has been vested in the general assembly through Article 3 Section 1 of the Constitution. Stewart v. Board of Supervisors of Polk County, 30 Iowa 9, 18 (1870). The Iowa court has repeatedly and consistently held that the people have no power to make laws of state-wide application and has rejected attempts by the legislature to obtain voter approval of proposed legislation, holding that the legislative power constitutionally vested in the General Assembly may not be delegated back to the people. C.f. Santo v. State, 2 Iowa 165, 202-204 (1855); City of Clinton v. Sheridan, 530 N.W.2d 690, 693 (Iowa 1995).

        Clearly, in light of this precedent, the Petitioners claims cannot succeed and the Court cannot grant the relief sought by the Petitioner.

      II Standard for granting of Motion to Dismiss.
        The Respondent, Secretary of State, has filed a Motion to Dismiss this action pursuant to Iowa Rule of civil Procedure 88(a)(6), and submits that the petition fails to state a claim upon which relief may be granted. Dismissal on this basis "is proper only if no state of facts is conceivable under which the plaintiff might show a right to recovery." Renander v. Inc.,Ltd., 500 N.W.2d 39, 40 (Iowa 1993), citing Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 460 N.W.2d 858, 861 (Iowa 1990). " A motion to dismiss admits the allegations in the petition and waives any ambiguity or uncertainty in the petition. Additionally, the allegations are construed in the light most favorable to the pleader, with doubts resolved in the pleader's favor." Id. 500 N.W. 2d at 40-41. "A motion to dismiss must stand or fall on the exclusive contents of the petition and cannot rely on facts not alleged in the petition or facts presented at an evidentiary hearing." Robins v. Heritage Acres, 578 N.W.2d 262, 264 (Iowa App. 1998).

      III. No state of facts is conceivable under which the Petitioner may be granted relief on his claims.
        The Petitioners claim for relief is based upon his assertion that the Iowa Constitution provides to the citizens of this state the right to legislate at any time. This contention is directly inconsistent with the Iowa Supreme Courts interpretation of our Constitution.

        Section 2 of Article 1 of the Iowa Constitution provides:
All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.

The Petitioner contends that the inherent political power of the people, which is recognized by the provision, overlays or augments the legislative authority given to the General Assembly, and that the "people of the State have retained the right to direct the drafting of laws as a collective majority. . .." Petition at p 7. It is argued that voter initiative and referendum by citizens must be recognized by the court in order to give voice to the right of the people to legislate.

        While the terms of Article 1, section 2, standing alone might appear to support the Petitioner's claim, the Iowa Supreme Court has consistently read another provision of the Iowa Constitution as transferring the peoples inherent legislative authority to the General Assembly. Article 3 Section 1 provides that:

The Legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives: and the style of every law shall be. 'Be it enacted by the General Assembly of the State of Iowa.'

This provision has consistently been viewed as a constitutional vesting of the inherent legislative power of the people to the General Assembly. See Santo v. State, 2 Iowa 164, 202-203, 2 Clarke 164, 202-03(1855) (holding that the General Assembly could not legally submit the question of whether an act should become a law to a vote of the people and recognizing that doing so would make the people, " the 'legislative authority' which, by the constitution, is vested in the Senate and House of Representatives"); State v. Geebrick, 5 Iowa 491, 493-495 (1958) (affirming Santo and further indicating that "a law can no more be repealed, than it can be made, by a vote of the people…"); Stewart v. Polk County, 30 Iowa 9, 18 (1870); State v. Weir, 33 Iowa 134 (1871); State v. Forkner, 94 Iowa 733, 62 N.W. 683 (1895).

        The Stewart court directly considered, and rejected, an argument very similar to the claim now urged by the Petitioner, reasoning as follows

         The second section of the 'bill of rights' declares: 'All political power is
inherent in the people
.' Political power consists of the three great attributes of sovereignty, namely: legislative, executive and judicial authority. This is all inherent in the people. These powers, then, are supreme in the people in the first instance. All the legislative as well as the executive and judicial power is inherent in them. By section 1 of article 3 of the constitution, we find that: 'the legislative authority of this State shall be vested in a general assembly,'etc.
The people, then, have vested the legislative authority, inherent in them, in the general assembly. The people were the original possessors of all legislative authority in the State. By this section they vest it all in the general assembly. Subsequently, in the same instrument, they withdraw some portions of this authority and impose certain limitations and restrictions upon the exercise of this authority and impose certain limitations and restrictions upon the exercise of the authority granted. It follows, therefore, as a logical sequence, that, within these limitations and restrictions, the legislative power of the general assembly is supreme; that it is bounded only by the limitations written in the constitution.

Stewart v. Polk County, 30 Iowa at p. 18 (emphasis in original). This reasoning mandates rejection of the Petitioner's current claim.

        Judicial recognition of the viability of use of initiative and referendum procedures as a means of legislation by municipal subdivisions does not negate or conflict with the constitutional provisions referenced above. In fact, in a case definitely concluding that local referendum or local option elections concerning the adoption of a subdivision ordinance were allowable under our constitution the Supreme Court addressed this point, concluding that the analysis of Santo, Geebrick, Weir and Forkner was not applicable to local options elections. Ekerson v. City of Des Moines, 137 Iowa 452, 478, 115 N.W. 177, 187 (1908). As the Court recognized, the holding of these cases "[was] based upon the constitutional provisions vesting the legislative authority of the state in the General Assembly, and prescribing how laws may b enacted, approved, and of effect. These restrictions do not apply to the legislative authority of councils of cities and incorporated towns." Id. 137 Iowa at 483, 177 N.W. at 189. Further, in its most recent discussion of related issues, the Court clearly reaffirmed its prior decisions regarding both statewide and local referenda elections.

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.' Id. At 483-84, 115 N.W. at 189 (citation omitted). Although the general assembly is not authorized to submit to a popular vote the questions as to whether or not a proposed act should become law, it does not follow the general assembly may not reserve to the electorate of a subdivision the rights to determine on a popular vote if an act should be adopted. Id. At 478, 115 N.W. at 187.

City of Clinton v. Sheridan, 530 N.W.2d 690, 693 (Iowa 1995)

        The Petitioner in this case expresses sincere dissatisfaction with the existing statutory procedures for the involuntary annexation of territory to expand city boundaries contained in Iowa Code chapter 368. Even if we assume, as the standard for consideration of a motion to dismiss demands, that the existing statutory provisions are flawed, this court may not order the Secretary of State to present ballot measures regarding the amendment or repeal of these provisions to the electorate. As the above-cited cases make clear, the drafters of our Constitution delegated all legislative power of this state to the General Assembly. The citizens retain no legislative power or right to direct state-wide legislative acts through initiative or referendum and cannot obtain such right by any means short of constitutional amendment.

        WHEREFORE, all of the reasons set forth herein, Respondent respectfully requests that the Court dismiss the Petition for Declaratory Judgment.        

                                Respectfully submitted,
                                THOMAS J. MILLER
                                ATTORNEY GENERAL OF IOWA

                                signed Christie Scase___________
                                Christie J. Scase PK1000087
                                Assistant Attorney General
                                Hoover Building, 2
nd Floor
                                Des Moines, Iowa 50319
                                Tel. (515) 281-XXXX
                                Fax (515) 281-4209
                                Attorneys for the Respondent