_ IN THE SUPREME COURT OF IOWA _
_ Supreme Court No. 99-1170 _

John Francis Anderson,                        
Mayor Pro Tem of the Territory                 
of West Carlisle, Polk County, Iowa        
                                        
Petitioner- Appellent,                                
                                                
vs.                                                         
THE SECRETARY OF STATE                                
of the State of Iowa                                        
                                                
Respondent- Appellee.                        

_
APPEAL FROM THE DISTRICT COURT
OF POLK COUNTY
HONORABLE ROBERT. A. HUTCHISON, JUDGE
_
APPELLEE'S BRIEF AND ARGUMENT
AND
NOTICE OF ORAL ARGUMENT

THOMAS J. MILLER
Attorneys General of Iowa
Hoover State Office Bldg.
Des Moines, Iowa 50319

CHRISTIE J. SCASE
Assistant Attorney General
ATTORNEYS FOR APPELLEE






TABLE OF CONTENTS

STATEMENT OF ISSUE PRESENTED FOR REVIEW……………..1
  1. WHETHER THE DISTRICT COURT REASONABLY
EXERCISED ITS DISCRETION BY CONSIDERING AND
ACTING UPON THE SECRETARY OF STATE'S MOTION
TO DISMISS……………………………………………………..6
  1. WHETHER ALL OF THE LEGISLATIVE AUTHORITY
INHERENT IN THE PEOPLE OF THIS STATE HAS BEEN
VESTED IN THE GENERAL ASEMBLY BY ARTICLE III,
SECTION 1 OF THE 1857 IOWA CONSTITUTION,
THEREBY FORECLOSING THE USE OF VOTER INITIATED
REFERENDA AND INITIATIVES TO DIRECT REPEAL OR
AMENDMENTS OF STATUTES HAVING STATE WIDE
APPLICABILITY……………………………………………….9

STATEMENT OF THE CASE……………………………………………3
ARGUMENT………………………………………………………………6
CONCLUSION……………………….………………………………….17
NOTICE OF ORAL ARGUMENT………………………………………18



STATEMENT OF THE CASE

Nature of the Case: This is an appeal by the Petitioner, John Francis Anderson, from a ruling by the Polk County District Court, Judge Robert A. Hutchinson, granting the Defendant Secretary of State's Motion to Dismiss Anderson's Petition for Declaratory Judgment, based upon the failure of the Petitioner to state a claim upon which relief could be granted.
Jurisdiction of the Court: The District Court's Ruling dismissing the Petition constituted a final judgment. Appeal from that decision properly lies with this Court.
Course of Proceedings Below: On April 13, 1999, the Petitioner, designating himself as the "Mayor Pro Tem of the Territory of West Carlisle, Iowa," filed a Petition for Declaratory Judgment in the Polk County District Court. The Petition was served upon the Attorney General on April 13, 1999. Through this Petition, Anderson sought a writ of mandamus directing the Secretary of State to place two public measures calling for the repeal and amendment of provisions within Iowa Code chapter 368 (1999), which govern the involuntary annexation of territory by existing cities, before the electors of the state on the 1999 ballot as voter- initiated referenda and initiatives On May 11, 1999, Petitioner served a ten-day notice of intent to seek default judgment upon the Attorney General, as Counsel for the Secretary.
On May 18, 1999, the Attorney General, on behalf of the Secretary of State, filed a Motion to Dismiss for failure to state a claim upon which relief could be granted and supporting brief, asserting that Article 3, section 1 of the Iowa Constitution, as interpreted by this court, foreclosed the Petitioner's claim for relief. Motion to dismiss; App. Pp. ____. The Petitioner filed a Resistance, and a hearing followed on July 7, 1999. Resistance to Respondent's Motion to Dismiss, Order for Hearing; App. pp. _____. On July 8, 1999, presiding Judge Robert A. Hutchinson issued a Ruling concluding that the Petitioner "failed to state a claim upon which relief could be granted under any set of facts, even assuming the facts pleaded in the petition to be true" and sustaining the Secretary's Motion to Dismiss. Ruling; App. pp. ______.
The Petitioner filed timely Notice Appeal from this Ruling on July 19, 1999. Notice of Appeal; App. pp._____
Facts: The Petition filed in this case consisted primarily of legal arguments and conclusions which need not be accepted by the court in determining whether it states a claim upon which relief may be granted. The statement of facts set forth herein represents a brief summary of the factual allegations set forth within the petition, which serve as the exclusive basis for assessment of the Petitioner's claim. See Robins v. Heritage Acres, 578 N.W. 2d 262, 264 (Iowa App. 1998).
The Petitioner is dissatisfied with the current provisions of Iowa Code chapter 368 governing the involuntary annexation of territory into an existing city. Specifically, he contends:
The current operation of the involuntary annexation statute violates numerous statutory provisions and constitutional requirements and is thus offensive to the people and works against the public good. The public good requires changes for the benefit of both rural and urban citizens, the urban to control their taxation and safeguard their infrastructure, the rural to control their taxation and ensure their liberty to pursue and obtain safety and happiness.
Petition at p. 13. The Petitioner also alleges that he and others have pursued amendment of the existing annexation statutes through the legislative process and that a few legislators within positions of power have ignored the will of the people by refusing to allow enactment of amendments to chapter 368 to correct "defects" in existing involuntary annexation procedures. Petition at pp. 3, 14; App. pp. ____. Both the Iowa Legislature and the Secretary of State have refused to place either an initiative or referendum public measure upon the 1999 ballot. Petition at p.1; App. pp. _____.

ARGUMENT

  1. THE DISTRICT COURT REASONABLY EXERCISED ITS DISCRETION BY CONSIDERING AND ACTING UPON THE SECRETARY OF STATE'S MOTION TO DISMISS.

The Petitioner contends within Division I of his brief that late filing of the Secretary's Motion to Dismiss entitled him to default judgment and required the district court to deny the Secretary's Motion and grant the relief sought by the Petitioner. While not filed within twenty-days of the date of service of the Petition, the Secretary of State's Motion to Dismiss was filed and served before expiration of the ten-day notice of intent to seek default judgment, which was served by the petitioner pursuant to Iowa Rule of Civil Procedure 231. Counsel's delay in responding to the petition did not mandate entry of a default judgment and the District Court properly exercised its discretion by considering and granting the Secretary's Motion to Dismiss.
Preservation of error: The Petitioner argued in his Resistance to the Secretary's Motion to Dismiss that the Secretary's delay in responding to the Petition constituted a forfeiture of the States right to file the motion. Resistance to Motion to Dismiss. App. pp. ____. The Petitioner did not file an application for default judgment. The District Court did not expressly address this issue when ruling upon the Secretary's Motion to Dismiss. Ruling; App. pp. _____. Nor did the Petitioner seek expansion of the District Court's Ruling by filing of a motion pursuant to Iowa Rule of Civil Procedure 179(b).
"A rule 179(b) motion is necessary to preserve error when a trial court fails to resolve the issue, claim, defense, or other theory properly submitted to it for adjudication." Ritz v. Wappello County Board of Supervisors, 595N.W. 2d 786, 789(Iowa) (citing Lawrence v. Grinde, 534 N.W.2d 414, 418 (Iowa 1995)). The Petitioner failed to preserve error with respect to his allegation that the Secretary was in default by failing to secure a ruling from the District Court on these claims.
Scope of appellate review: "The question of allowing a default is claim has been preserved for consideration by this Court, it must be rejected on its merits. The Petitioner contends that because the Secretary failed to submit his motion to dismiss within twenty days of service of the Petition "the court was time barred from granting the State's motion. Petitioners Brief at p.5.
The Respondent's Motion to Dismiss was filed and served within the prior to expiration of the 10-day notice period contained within Iowa Rule of Civil Procedure 231(b). Pursuant to rule 231(b), "'no default judgment shall be entered ' unless the ten-day notice is given before the application for default is filed." Dolezal v. Bockes Brothers Farms inc., No. 98-890, slip op. At 7(Iowa Sup. Ct. Nov 17, 1999). "Rule 231(b) is intended to flush out the real reason why a defendant has not responded to an original notice. If there truly is a 'bungle,' a ten-day notice is a reasonable vehicle to alert the defendant to the mistake and to prompt a response."
In this case, the Respondent responded to receipt of the ten-day notice by promptly filing a motion with the court. That filing eliminated any question regarding the Respondent's intent to defend against the Petitioner's claim and no application for default judgment was made by the Petitioner. No barrier existed to prevent the district court from considering and acting upon the Respondent's motion.
In other recent decisions, this Court has clearly held that entry of a default judgment is not an automatic or mandatory consequence of a party's delay in pleading. Rather, when an application for entry of a default judgment is presented to the district court, the court must examine the circumstances presented and exercise its discretion to determine whether entry of a default judgment is appropriate.

Prior cases have not required a trial court, when refusing to grant a default, to find oversight, mistake, inadvertence, or other rule 236 conditions, to exist and cause defendant's failure to answer timely. Nor does the law impose the burden of proof for setting aside a default judgment, Iowa R. Civ. P. 236, onto the defendant to avoid a default judgment under rule 230. As the supreme court stated in Kohorst v. Iowa State Commerce Comm'n, 348 N.W. 2d 619, 622 (Iowa 1984):


Despite the language in rules 230-232 that might be read to require the entry of a default under certain conditions, our cases interpreting those rules have not made such entry mandatory. We have consistently held that the question of allowing a default is largely within the discretion of the trial court.
Wright v. Waterloo Water Works, 493 N.W. 2d at 892 (citations omitted).

"The policy of law is to allow trial of actions on the merits." Id Where, as here, it is clear that the Respondent at all times intended to defend the action, a finding of default in not appropriate. Nor should a petitioner be allowed to utilize default to secure relief which would not be available if the action were considered on its merits. "[I]t is self-evident a default could in no event breathe life into an otherwise meritless application." Hartvigsen v. Iowa Dept. of Transportation, 426 N.W. 2d. 399, 402 (Iowa 1988) (quoting Furgison v. State, 217 N.W. 2d 613, 618(Iowa 1974)).
Upon receipt of the Petitioners notice of intent to seek default judgment in this case, counsel for the Secretary of State filed and served a Motion to Dismiss within seven days. Rule 231(b) precludes entry of a default judgment under these circumstances and the district court reasonably exercised its discretion by considering the merits of the Secretary's motion.

II. ALL OF THE LEGISLATIVE AUTHORITY INHERENT IN THE PEOPLE OF THIS STATE HAS BEEN VESTED IN THE GENERAL ASSEMBLY BY ARTICLE III SECTION 1 OF THE 1857 IOWA CONSTITUTION, THEREBY FORECLOSING THE USE OF VOTER INITIATED REFERENDA AND INITIATIVES TO DIRECT REPEAL OR AMENDMENT OF STATUTES HAVING STATE WIDE APPLICABILITY.

The Petitioner's claim for relief is based exclusively upon the premise that Article I, section 2 of the 1857 Iowa Constitution guarantees the citizens of the state the right to alter government through voter-initiated state wide referenda and initiatives. The District Court properly concluded that no relief could be granted upon this claim, given that this Court has consistently interpreted Article III, section 1 of the 1857 Iowa Constitution as foreclosing the submission questions regarding the enactment or repeal of existing statutes having state wide applicability to voters for approval.
Preservation of error: The Petitioner's Article I, section 2 claims for relief were presented to and rejected by the District Court in granting Respondent's motion to dismiss. These claims have been preserved for review on appeal. See Second Injury Fund of Iowa v. Klebs, 539 N.W. 2d 178, 180 (Iowa 1995); Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm'n, 453 N.W. 2d 512 (Iowa 1990).
Scope of appellate review: The District Court granted the Secretary's Motion to Dismiss, finding that the Petition before the court "failed to state a claim upon which relief could be granted under any set of facts…." Ruling at p. 1; App. pp. ___. This Court must review the lower court's ruling for correction of errors at law.
        
On an appeal from the dismissal of claims under Iowa Rule of Civil Procedure 104(b) [now 88(a)], our review is closely circumscribed. We assess the petition in the light most favorable to the plaintiff and resolve all doubts and ambiguities in plaintiff's favor. To sustain such a motion, the movant must show no state of facts is conceivable under which the plaintiff might show a right of recovery.
State ex rel. Miller v. Phillip Morris, Inc., 577 N.W.2d 401, 403 (Iowa 1998) (citing Below v. Skarr, 569 N.W.2d 510, 511 (Iowa 1997)).
"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." Renander v. Inc., Ltd., 500 N.W.2d 39, 40-41 (Iowa 1993). "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." Robbins v. Heritage Acres, 578 N.W.2d 262, 264 (Iowa App. 1998).
Argument summary:
The outcome of this case is dependent upon application of two provisions within the 1857 Iowa Constitution. Article I, section 2, which recognizes the inherent political power of the people, and Article III, section 1 in which the people vest their inherent legislative authority in the general assembly.
The Petitioner seeks a writ of mandamus directing the Secretary of State to place two public measures on the 1999 ballot as state-wide referenda and initiatives. Recognizing the absence of statutory provisions setting forth a procedural mechanism for voter-initiated public measures, the Petitioner argues that citizens have an inherent power to initiate legislation, consistent with Article I, section 2. Petitioner seeks judicial recognition and enforcement of this inherent right.
This Court has directly held that all of the inherent legislative power of the people, referenced within Article I, section 2 has been has been vested in the general assembly through Article III, section 1. Stewart b. Board of Supervisors of Polk County, 30 Iowa 9, 18 (1870). It has repeatedly and consistently held that the people lack 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. Cf. City of Clinton v. Sheridan, 530 N.W.2d 177 (1908)); Santo v. State, 2 Iowa (Clarke) 164, 202-203 (1855).
This precedent makes it clear that the Petitioner's claim must fail as a matter of law. The Court should affirm the District Court's conclusion that the Petitioner's claim cannot succeed under any conceivable set of facts.
Constitutional analysis:
Article I, section 2 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 this 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. The Petitioner suggests that voter initiative and referendum must be recognized as legitimate mechanisms to give voice to the right of the people to legislate.
While the terms of Article I, section 2, standing alone might appear to support the Petitioner's claim, Article I, section 2 does not must not be read in isolation. Article III, section 1 of our Constitution provides:

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 Court has repeatedly held that Article III, section 1, acts to transfer the people's inherent legislative authority to the general assembly. In decisions dating back to 1855, this provision has consistently been viewed as a constitutional vesting of the inherent legislative power of the people to the General Assembly.
Based upon Article III, section 1, the Court has determined that the question of whether an act should become law cannot be submitted to a vote of the people. In Santo v State 2 Iowa (Clarke) at 202-03, the Court examined whether an act for the suppression of intemperance was valid where the statute provided that it should be submitted to a vote of the people to become effective. The Court ruled the law invalid and stated:

It must be observed that there are under the constitution, but three departments of the government; that the legislative department consists of the Senate and House of Representatives, and the people do not constitute a portion of it; and that law are enacted 'by the General Assembly.' This is the mode provided by the constitution for making laws. A bill becomes an act or a law in the above manner, or it never becomes such. A vote of the people cannot make it become a law, nor can it prevent it becoming one.
Santo v. State, 2 Iowa (Clarke) at 204.

Three years later in State v. Geebrick, 5 Iowa 491 (1858), the Court reaffirmed this principle when reviewing the conviction of a person found guilty of selling intoxicating liquors without a license. The 1857 statute under which Geebrick was charged provided that intemperance was not repealed in any county unless the people of the county adopted the act by a majority vote in favor of it. A majority vote in favor would repeal the intemperance law and authorize the county judge to proceed to issue licenses. Id at 492-93. The Court reversed the conviction for selling intoxicating liquors without a license by concluding that the act was unconstitutional and void. "[I]f the act…receives its vitality and force from a vote of the people, such a vote is an exercise of legislative power, and the law is unconstitutional and void. The legislative power is vested in the General Assembly, and it can be exercised by that body alone." Id at 494.
The principles recognized in Santo and Geebeck have been repeatedly relied upon by this Court. See Stewart v. Polk County, 30 Iowa 9, 18 (1870) (recognizing that the inherent legislative authority of the people is vested in the general assembly by Article II, section 1); State v. Weir, 33 Iowa 134, 135 (1871) (relying upon Santo and Geebrick as definitively establishing that "the general assembly cannot legally submit to the people the proposition whether an act should become law or not, and that the people have no power in their primary or individual capacity, to make laws"); State v. Forkner, 94 Iowa 733, 62 N.W. 683 (1895) (a general law, applicable alike to all localities of the state coming within its terms, may not depend upon a vote of the people to give it vitality).
The Petitioner attempts to distinguish this line of cases based upon that fact that they each involved referenda initiated by the legislature, rather than voter initiated referenda. In the context of this constitutional analysis, such a distinction is without substance. The Petitioner's claim is based upon the premise that the people of Iowa retain their inherent authority to direct legislative action, despite the provisions of Article III section 1. The Court has directly considered and rejected, an argument nearly identical to the claim now urged by the Petitioner.

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 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 18 (emphasis original). This reasoning mandates rejection of the Petitioner's claim.
The Petitioner also suggests that judicial recognition of the viability of using initiative and referendum procedures as a means of legislation by municipal subdivisions negates the force of this Court's prior interpretations of Article III, section 1. Examination of the cases in which the Court has addressed the ability of local governments to utilize voter initiated referenda and initiatives belies this claim.
In a 1908 case concluding that the state constitution permits local referendum or local option elections concerning the adoption of a subdivision ordinance, the Supreme Court addressed this point and concluded that the analysis of Santo, Geebrick, Weir and Forkner was not applicable to local option elections. Ekerson v. City of Des Moines, 137 Iowa 452, 478, 115 N.W. 177, 187 (1908). As the Court recognized, the holding of the cases "[was] based upon the constitutional provisions vesting the legislative authority of the state in the General Assembly, and prescribing how laws may be enacted, approved, and of effect. These restrictions do not apply to the legislative authority of the 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 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 609, 693 (Iowa 1995). The Eckerson and City f Clinton cases recognize that because local government are not are not bound by Article III, section 1, which applies only to "legislative authority of this state," subdivisions of the state may use initiative and referendum procedures to direct local legislation. These cases do not, as the Petitioner argues, support a finding that our constitution guarantees the citizens a right to voter initiated referenda and initiatives with regard to legislation of state wide applicability. Rather, they reaffirm prior cases concluding that the general assembly holds the exclusive authority to enact state wide legislation.
Neither our state constitution nor the principles of representative democracy guarantee the electorate the right to dictate legislative action.

In the absence of special constitutional provision, the majority rule is that the power to legislate may not be delegated by the legislature to the people. This view is based on the separation of powers doctrine that the legislature alone is vested with the legislative authority and the legislature cannot divest its power even to the people. Some decisions offer the additional reason that although the nature of government is democratic, it is a representative democracy and thus the people, by adopting a constitution, have divested their legislative authority and it cannot be revested by the legislature without express constitutional authority.

1 n. Singer, Sutherland Statutory Construction § 4.08 (5th Ed. 1994) (footnotes omitted).
Twenty-six states in our union have constitutional provisions allowing voter initiative or popular referendum Id. At §4.09, fn. 1 Iowa is not among them.
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 existing statutory provisions are flawed, this Court may not order the Secretary of State to present to the electorate ballot measures regarding the amendment or repeal of these provisions. 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 a constitutional amendment.

CONCLUSION

For all the reasons set forth above, the Respondent- Appellee, Iowa Secretary of State, respectfully asks this Court to affirm the Ruling of the District Court granting the Respondent's Motion to Dismiss.