IN THE SUPREME COURT OF IOWA
_
John Francis Anderson,                       )
Mayor Pro Tem of the Territory          )
of West Carlisle, Polk County, Iowa    )
                                                            )
                                                            ) Supreme Court No.
Petitioner- Appellent,                          )        99-1170
                                                           )
vs.                                                       )              
The Secretary of State                         )            
of the State of Iowa                             )        
                                                            )
Respondent- Appellee.                         )

_
APPEAL FROM THE IOWA DISTRICT COURT
IN AND FOR POLK COUNTY
HONORABLE R.A. HUTCHISON, JUDGE
_
APPELLENT'S BRIEF AND ARGUMENT
AND
REQUEST FOR ORAL ARGUMENT

John F. Anderson

PRO SE FOR PLAINTIFF- APPELLENT

John F. Anderson
4491 S.E. 40
th Street
Des Moines, Iowa 50320



Table of Contents
Table of Authorities …………………………………………………………………
i
Statement of issues …………………………………………………………….…… 1
I -States motion to dismiss did not comply
with the Iowa Rules of Civil Procedure
………………………….……..… 1

II-The State has administratively
amended the Constitution
…………………………………………..…..….. 1

III-Art I § 2 provides all basis for
any type of relief by the courts.
………………………………………...…..… 1

IVa.
The Framers of the Constitution clearly
intended and assumed that the people have access
There is no conflict between citizens telling the
Legislature what is required
………………………………………………. 2,3

IVb
- Demonstration of the public need
requiring invocation of Art I § 2
…………………………………….………. 3

Statement of Case
……………………………………………………..…………….. 3
Discussion:
I -States motion to dismiss did not comply
with the Iowa Rules of Civil Procedure
………………………………..…. 5

      1. The State was time barred from filing ……………..……………. 6
      2. Article I § 2 is both the fact and basis for relief ………..……… 6

II-The State has administratively
amended the Constitution
…………………………………..……..……….. 7

III-Art I § 2 provides all basis for
any type of relief by the courts.
…………………………..……..………….. 10

    1. The right to alter and reform the statutes
      comprising government exists as an entitlement
      for all Iowans without governmental interference.
      ……………..……. 12



    2. The Secretary of State is the correct officer of State
      to sue in order to assert this right.
      ………………..…..……..………. 14

    3. The court can properly issue a writ of mandamus
      to poll the people in order to determine their
      demands with which the Legislature must comply.
      …………..……… 15

    4. That the evils sought to be remedied by adoption
      this element and the precursors of Article I § 2 are
      specifically the evils facing rural Iowans due to
      involuntary annexation.
      ………………..…..………..………………. 16


    5. Analogous Declaration of Independence entries ………………..….17-19

IVa.
The Framers of the Constitution clearly
intended and assumed that the people have access
There is no conflict between citizens telling the
Legislature what is required
…………………………………………….….. 21

IVb
- Demonstration of the public need
requiring invocation of Art I § 2
…………………………………….…….. 29
    1. The involuntary annexation statute violates
      the basic tenets of our system,depriving rural
      residents of all representation.
      ……………………………….………29

    2. The CDB is contravening the Legislative intent
      of the Chapter it administers by favoring the
      desires of cities instead of the wishes and desires
      of the residents of the territory as directed in 368.6.
      …………….….30

    3. Involuntary severance and voluntary severance,
      the sole remedy for improper involuntary
      annexation is beyond the reach of residents of
      the territory due to statutory requirements and
      the demands of the CDB .
      …………………………………..………31

    4. Cities are blatantly abusing the privilege of
      involuntary annexation.
      ……………………………………………...32

    5. Post 1973 involuntary annexation has no
      precedent in Iowa law. It also denies residents
      of the territory refuge in the courts no matter
      how corrupted the process.
      ………………………………………….33

    6. The Judicial branch Attorney General has
    improperly installed in the processes of the
    Executive branch CDB without express direction
    permission in Constitution or Code.
    ………………………………35
    1. Created in Article V § 12 …………………………………………35
    2. Charged with duties in chapter 13 of the Code of Iowa …….……36
    3. Proceedings are freely amended ………………………………..…36
    4. The AG is contravening the intent of chapter 368 ……………..…36
    5. Weighted legal opinion is "best recollection law" ……………..…37
    6. Executive branch assumption is a mistake ……………………..…37
    7. Judicial branch placement is not a mistake……………………..…38

    7. Using 368.11 cities arbitrarily, unaccountably
    irreversibly extend municipal boundaries
    against the wishes of the Iowa citizens living in
    territory. This violates the equal application
    mandated in Article I §6. Involuntary annexation
    suffered under the arbitrary wishes of a foreign
    government.
    ……………………………………………..………39

Summation …………………………………………………………………..…….
42
Conclusion ……………………………………………………………………….... 49
Request for Oral Argument …………………………………………………..…… 49



Table of Authorities:
Cases:

Barnhart v. United Auto., Aircraft, Agri. Implement
Workers of America (UAW-CIO), 79 a.2d 88, 91, 12 N.J.Super.147……..… 1 ,11

Brayton v. Delaware County, 1864, 16 Iowa 44……………………..…….….…1,6

C.C. Taft Co. v Alber, 1921, 185 Iowa 1069, 171 N.W. 719…………..…..1,20,28

Chute Bros. & co. V. Hozleton, 1879, 51 Iowa 355, 1 N.W.672……….….……1,6

Clinton v. Sheridan,530 N.W. 2d, 694,…….……………..………………….…2,27

Clive v. Colby 1963, 255 Iowa 483 121 N.W. 2d 331……………….…….…..3,31

Eckerson v. City of Des Moines, page 464, 137 Iowa (1908)….……..….…….3,27

Gallarno v. Long, 1932, 214 Iowa 805, 243 N.W.719………………….………3,27

Kruidenier v. McCulloch, 1966, 258 Iowa 1121…………………..…….1,2,7,10,21

Loftus et al v Department of Agriculture of Iowa (1930)
232 N.W. 412, 415………………………………….….…………………2,3,10,27

Marbury v. Madison 5 U.S. 137,n 5 U.S. 137……………………………….2,13,15

McCorquodale v. State, 29 S.Ct. 146, 147, 211 U.S. 432,
435, 53 L.Ed. 269, citing Rapalje, Law Dict p. 1083;
McCorquodale v. State, 98 S.W. 879, 887, 54 Tex.Cr.R. 344. …………..……2,11

McSurely v. McGrew, 1908, 140 Iowa 163, 118 N.W. 415,
132 Am.St.Rep. 248……………………………………………………….. 1,3,7,26

Miller v. Struck Const. Co., Ky., 251 S.W. 2d 457, 459…………….…………2,11

Noyes v. Rothfeld, 78 N.Y.s.2d 433, 436,191 Misc 672…………….………....2,11

N.W. Halsey & Co. v. City of Belle Plaine, 1905,
128 Iowa 467, 104 N.W. 494…….…………..…………………………………2,16

Reed v. Wright, 2 Iowa (Greene) 15, 2 (1849)…….……………………………2,19

Smith v. Thompson, 1935, 219 Iowa 888, 258 N.W. 190 …………….…………1,9

Stewart v. Board of Sup'rs of Polk County, 1870, 30
Iowa 9, 1 Am. Rep. 238………………………………………………….…..…2,13

Town of McGregor v. Baylies, 1865, 19 Iowa 43………………………………2,16

Wright v. Marsh, Lee & Delavan, 1849, 2 g. Greene, 94………………….……3,28

Iowa Constitution

Article I         § 1 …………..…………………………..…1, 3, 13, 30, 38
                     § 2 ….………………1,2,3,5,6,7,8,9,10,11,12,13,14,15,16,
                      ….……………..……20,21,22,24,26,28,42,43,44,47,48
                     § 6 ….……………………………………………3,29,39,46
                     § 25 ….………………………………………………3,28,44
Article II    § 6, ….……………………………….…………………1,15
                     § 17 ….………………………….………………………3,25
Article III       § 1 ….………………………………………………3,36,39
                     § 1 ……….………………………………………….…2,26
                     § 30 ……………………………….……………..………3,40
Article V         § 12 ……………….………….…………………………3,34
Article XI       § 5 ………………………………………………………1,9
Article X        …………………..…………………….1,3,9,10,20,22,25
Article XII       § 1 ………………….….……..…………………1,2,9,10,27

The Code of Iowa 1999
13.2         ……………………………….………………………………3,36,39
47.1        ………………………………….…………………….…………2,14
49A        ………………………………….………………………….……2,14
362.2        …………………………………..………………..….…2,3,17,30,45
368.4        ……………………………………..…….………….2,3,17,31,37,45
368.6        ………………………………………..………….……3,29,30,36,42
368.7        ……………………………………………………………3,31,37,40
368.8        …………………………..………………………………………3,41
368.9        ………………………………………………..…………………3,36
368.11………………………………..…………2,3,17,29,31,36,40,41,46,47
368.12………………………………….……….…………….……2,3,17,33
368.14………………………………….……………..…………………3,34
368.17…………………………………..……………….…………2,3,17,35
368.19…………………………………….………….………………3,40,41
368.21…………………………………….……….…………………3,31,34
368.22……………………………………..………….……………2,3,17,34


The Code of Iowa 1851         § 237……………………..……………………..…3,25

The Code of Iowa 1860         § 1043……………………………………..………3,33

The Code of Iowa 1873         § 430,§422,§423..…………………………………3,33

The Code of Iowa 1897         § 610,602…………………………………….……3,33

The Code of Iowa 1973        362.32……………………………………..………3,32
                                 362.26……………………………..………………3,33

Iowa rules of Civil Procedure 53…………………………..…………………..…1,5,6

Iowa rules of Civil Procedure 88……………………………………..…………1,4,5,6

Op.Atty. Gen.1906,p.96. ……………………………………………...…………...1,7

Opinion of Attorney General, Santo et al. v. The State of Iowa,
2 Iowa 165, 203………………………………………………………..……....…3,26

Declaration of Independence ………………………………………....…….…2,16-19

The Debates of the Constitutional Convention of
the State of Iowa assembled at Iowa City, Monday
January 19, 1857. Luse, Lane & Co. Publishers,
Job Printers and Book - Binders 1857………………………………………………………..………………3,22-25,38

Law reviews cited.
The natural rights clause of the Iowa Constitution: When the
law sits too tight. Bruce Kempkes, 42 Drake L.Rev. 593(1993) ………….……2,20

Rediscovering the Iowa Constitution: The role of the courts
under the silver bullet. Bruce Kempkes, 37 Drake L.Rev.33 (1987-1988)…………………………….……………………………………..…………2,20

Statement of Issues:
I. The States motion to dismiss did not comply with the Iowa Rules of Civil
Procedure. The Court was time barred from granting the States' motion. The statement of fact entitling the petitioner to the relief requested is the declaration of rights and restrictions of the Iowa Constitution, specifically Article I § 2 the existence and language of which is indisputable.
Authorities
Brayton v. Delaware County, 1864, 16 Iowa 44
Chute Bros. & Co. v. Hozleton, 1879, 51 Iowa 355, 1 N.W. 672
Iowa rules of Civil Procedure 53, RCP 88

McSurely v. McGrew, 1908, 140 Iowa 163, 118 N.W. 415, 132 Am.St.Rep. 248
Op.Atty. Gen.1906,p.96.

II. The dismissal by the court completes an administrative deletion of Article I § 2 of the Iowa Constitution by the three branches of Iowa government culminating in a procedural amendment of the Constitution.
Authorities
Iowa Constitution Art I § 2, Art. X, Art XI § 5, Art XII § 1
Kruidenier v. McCulloch, 1966, 258 Iowa 1121
Smith v. Thompson, 1935, 219 Iowa 888, 258 N.W. 190
III. The Constitutional element, Article I § 2, provides the basis for granting the relief requested and is also the sole basis that any court in this state is created or empowered to grant relief in any matter of civil law.
Authorities
Iowa Constitution Art I §1. Art I § 2, Art II § 6, Art X

Barnhart v. United Auto., Aircraft, Agri. Implement Workers of America (UAW-CIO), 79 a.2d 88, 91, 12 N.J.Super.147

C.C. Taft Co. v Alber, 1921, 185 Iowa 1069, 171 N.W. 719
Kruidenier v. McCulloch, 1966, 258 Iowa 1121
Loftus et al v Department of Agriculture of Iowa (1930) 232 N.W. 412, 415
Marbury v. Madison 5 U.S. 137,n 5 U.S. 137

McCorquodale v. State, 29 S.Ct. 146, 147, 211 U.S. 432, 435, 53 L.Ed. 269
Rapalje, Law Dict p. 1083; McCorquodale v. State, 98 S.W. 879, 887, 54 Tex.Cr.R. 344.

Miller v. Struck Const. Co., Ky., 251 S.W. 2d 457, 459

N.W. Halsey & Co. v. City of Belle Plaine, 1905, 128 Iowa 467, 104 N.W. 494.

Noyes v. Rothfeld, 78 N.Y.s.2d 433, 436,191 Misc 672.

Reed v. Wright, 2 Iowa (Greene) 15, 21 (1849)

Stewart v Board of Sup'rs of Polk County, 1870, 30 Iowa 9, 1 Am.Rep. 238

Town of McGregor v. Baylies, 1865, 19 Iowa 43.

Code of Iowa 47.1, 49A, 362.2, 368.4, 368.11, 368.12, 368.17, 368.22
United States, the Declaration of Independence

Law Review Articles:
The natural rights clause of the Iowa Constitution: When the law sits too tight. Bruce Kempkes, 42 Drake L.Rev. 593(1993)

Rediscovering the Iowa Constitution: The role of the courts under the silverbullet. Bruce Kempkes, 37 Drake L.Rev.33 (1987-1988)

IVa. The Framers of the Constitution clearly intended and assumed that the people have access to the statutes comprising government. Article I § 2 is a guarantee that government can not ignore the people. There is no conflict between citizens telling the Legislature what is required of them and the vestment of legislative authority.

  • Authorities
  • Iowa Constitution Art. I § 2, Article I § 25, Art. III § 1.
    C.C. Taft Co. v Alber, 1921, 185 Iowa 1069, 171 N.W. 719
    Clinton v. Sheridan,530 N.W. 2d, 694,
    Eckerson v. City of Des Moines, page 464, 137 Iowa (1908)
    Gallarno v. Long, 1932, 214 Iowa 805, 243 N.W.719
    Loftus et al v Department of Agriculture of Iowa (1930) 232 N.W. 412, 415
    Wright v.Marsh, Lee & Delavan, 1849, 2 g. Greene, 94
    McSurely v. McGrew, 1908, 140 Iowa 163, 118 N.W. 415, 132 Am.St.Rep. 248
    Opinion of Attorney General, Santo et al. v. The State of Iowa, 2 Iowa 165, 203
    Tenth Amendment to the Constitution of the United States.

    1851 Code of Iowa section 237

    The Debates of the Constitutional Convention of the State of Iowa assembled at Iowa City, Monday January 19, 1857. Luse, Lane & Co. Publishers, Job Printers and Book - Binders 1857

    IVb. The petitioners have demonstrated the public need to alter and reform the annexation statutes of Iowa thus fulfilling the constitutional requirement for invocation of this right. This is not a separate issue, it demonstrates fulfillment of any requirement contained within Article I § 2 for its invocation.

    Authorities

    Iowa Constitution Art.I §1, Art I § 2, ArtI § 6, Art.III § 1, ArtIII § 30 ArtV §12
    Clive v. Colby 1963, 255 Iowa 483 121 N.W. 2d 331

    Code of Iowa (1999)13.2,49A,362.2,368.4,368.6,368.7,368.8,368.9,
    368.11,368.12,368.14,368.17, 368.19, 368.21,368.22

    The Code of Iowa 1860 § 1043

    The Code of Iowa 1873 § 430, §422, §423

    The Code of Iowa 1897 § 610,602

    The Code of Iowa 1973 362.32

                                    362.26

    The Debates of the Constitutional Convention of the State of Iowa assembled at Iowa City, Monday January 19, 1857. Luse, Lane & Co. Publishers, Job Printers and Book - Binders 1857


    Statement of the Case:

    The petitioners, through their elected representatives, petitioned the Legislature to place two questions upon a Statewide ballot to gather the demands of the electorate upon the Legislature. The legislature took no action upon the petition.

    The petitioners submitted these same questions to be placed upon a ballot to the Secretary of State whose office refused to sign for receipt of the petition.

    The petitioners filed for declaratory judgment April 13, 1999, asking for a writ of mandamus to the Secretary of State to place the following public measures on the 1999 ballot and to proceed with the required publications and procedures to validate the resultant ballot:

    The referendum to be placed upon the 1999 ballot is:

    Should the involuntary annexation statute be repealed?

    YES ___ NO ___


    The initiative to be placed on the 1999 ballot is:
    Should a bifurcated vote be required
    for involuntary annexation? YES___ NO___

    The petitioners filed a second notice on May 11, 1999 to elicit an answer from the State after the 20 days stipulated for answer on the original notice had lapsed.

    The Attorney General filed a motion to dismiss based upon RCP 88(a)(6). Supporting their motion with the contention that "No set of facts can be proven under which the Petitioner would be entitled to the relief sought". This was filed on May 18, 1999, 36 days after receiving original notice. No answer has been filed by the State.

    The petitioners filed a resistance to the States motion to dismiss on May 26, 1999.

    A hearing on the States motion to dismiss was held on July 7
    th 1999 in Polk County District Court, Judge Hutchison presiding.

    The plaintiff filed a motion for injunctive relief on July 8
    th, 1999 in response to the dialogue at the previous days hearing that promised no expedient resolution of this case before the invasion of rights sought to be protected could be prevented.

    The court issued its ruling on July 8, 1999 granting the States motion to dismiss.


    I. The States motion to dismiss did not comply with the Iowa Rules of Civil Procedure. The Court was time barred from granting the States' motion. The statement of fact entitling the petitioner to the relief requested is the declaration of rights and restrictions of the Iowa Constitution, specifically Article I § 2 the existence and language of which is indisputable.

    Scope of Review and Error Preservation: The State failed to preserve the right to motion for dismissal by not complying with Iowa RCP 53. Nor can the State refute the existence of the Iowa Constitution Article I § 2; the fact upon which the petitioner is entitled to the relief requested. This was argued by the petitioner in Resistance to Motion to Dismiss (3,4,5,6,7)

    Argument: On error of law.

    Summary: (1.) The State allowed the time allotted in RCP 53," Unless otherwise provided, the defendant, respondent or other party shall serve, and within a reasonable time thereafter file, a motion or answer within 20 days after the service of the original notice and petition." to grossly expire before filing any motion or reply This delay on the part of the State clearly placed them in default status and invariably placed RCP 88 beyond reach "Every defense to a claim for relief in any pleading must be asserted in the pleading responsive thereto, or in an amendment to the answer made within 20 days after service of the answer." The District court was time barred from granting the States motion to dismiss. (2.) RCP 88(a)(6) does not provide any basis for dismissal in this case because the Constitution of Iowa, Article I §2 exists and provides the primary restriction of government by the people in the Constitution and is also the sole foundation for all civil constructs, including the courts basis for the granting of relief; this set of facts cannot be disputed.

    1. Since the State delayed any reply until a full 36 days had lapsed, it forfeited any claim based upon RCP 88(a). RCP 53 and the original notice allowed 20 days to file an answer. RCP 88 allows a motion within the original window, which closed on May 3, 1999, or as an amendment within 20 days to a response within the original time frame, which in this case, lapsed without action by the State.

    The court was obligated to deny the States' motion once the petitioner filed resistance. The State was clearly in default, the condition of being in default does not require judgment by the courts, only an expiration of the time allowed in the Iowa Rules of Court by which all parties, including the State, are bounded.

      "Pleas filed when the defendant was in default should on
      motion of plaintiff be stricken from the files." Brayton v.
      Delaware County, 1864, 16 Iowa 44

    Nor did the State motion that its default status be set aside.

      "When a party is in default, he could not, until the default was
      set aside, properly file a reply, except by leave of the court."
      Chute Bros. & Co. v. Hozleton, 1879, 51 Iowa 355, 1 N.W. 672

    2. Additionally the court will find no more definitive basis for granting relief than Article I § 2 which provides the exclusive foundation for the granting of relief by the courts and even allows for the creation of the Court itself. The set of facts under which the petitioner is entitled to obtain the relief sought are simple and set forth within this document including the public need requiring invocation. This section of the Iowa Constitution guarantees that the people can alter or reform government when they need to, without interference from any agency of government, in fact, its inclusion is a proscription of government interference with this right: this set of facts alone entitles the petitioner to the relief sought.

      The State constitution is not a grant but a limitation of power, so that Legislature may enact any law not expressly or inferentially prohibited by Constitution. McSurely v. McGrew, 1908, 140 Iowa 163, 118 N.W. 415, 132 Am.St.Rep. 248

      The State Constitution prescribing the powers of the legislative department, is a limitation and not a grant of power; and hence, in construing a legislative act, the courts look not to what the Constitution authorizes, but to what it prohibits. Op.Atty. Gen.1906,p.96.

    In the case at bar, the Court need not look beyond the plain and clear language, and construction of Article I §2 for the facts required for invocation of the rights the petitioner claims. However, by dismissing this suit, thereby denying the rights and restrictions of this Constitutional element, the Court will have placed the Constitution, specifically Article I § 2, beyond the reach of the people it was written to serve.


    II
    The dismissal by the court completes an administrative deletion of Article I § 2 of the Iowa Constitution by the three branches of Iowa government culminating in a procedural amendment of the Constitution.

    Scope of Review and Error Preservation
    :

      "In the field of interpretation of Iowa Constitution, The Iowa Supreme Court is the final arbiter." Kruidenier v. McCulloch, 1966, 258 Iowa 1121


    In the petition for declaratory judgment pages 8 and 11 allege bar of this element by the actions of the Legislative and Executive branches. The District Court dismissal which elevated the issue to the Supreme Court completed the bar by all three branches.

    Argument: This case presents a Case of first impression in Iowa: Article I §2 the Iowa Constitution mandates that the people have the right to change any function or organization of government at the peoples discretion. The declaration is broad in its entitlement acting upon the concept before even the first instituted agency or separate idea. This right is being transgressed through the combination of rejection by the Judiciary and Executive Branches and neglect by the Executive and Legislative branches.

    Article I § 2 of the Peoples Constitution is the most primary of restrictions written in the Constitution upon all agencies of government, in language of conspicuous clarity, by retaining the power to alter or reform any agency or element of government without interference. All that need be demonstrated to exercise this right is that government has failed in any singular purpose of its creation: to benefit, or to protect or to provide for the security of the people.

    The constitutional debates, and the Courts have maintained that the people have the right to tell their government their wants and the legislature dare not refuse. In this instance however, that same government has bound the peoples hands and denied them any voice concerning involuntary annexation that also strips them of representation and voice. This has been accomplished by the enactment of oppressive statutes and by the evolution of legislative leadership positions and processes that parse the general assemblies limited calendar according to the wants of moneyed interests and political ambition in place of public service for all Iowans coupled with the GAs failure to completely enact the constitution. After appealing to the Legislature during four consecutive sessions, the residents whose homes are being affected by this statute and their representatives have received only patronizing or thwarted support in the General Assembly. This pits the meager resources of individual Iowans against coffers of their own state or a city government foreign to them with no hope for relief from the Legislature that is supposed to provide for the security, protection and benefit of all Iowans.

    The exclusion of the people from access to this first declared "right" and first mandated restriction upon what would be constructed afterwards within the constitution is absurd. It is a failure of State officials, appointed or elected, to fulfill their oaths of office to "support the Constitution" as required in Article XI § 5. It is a failure of the Legislature to "pass all laws necessary to carry this constitution into effect" as mandated in Article XII § 1. It is a failure of the COURT which is charged with ensuring that mandates within the constitution are followed; and the first such mandate is within Article I § 2: " and they have the right, at all times, to alter or reform the same, whenever the public good may require it." Cumulatively it is a failure of government to adhere to the Constitution.

              "Constitutional provisions are mandatory and apply to and
      governor people, as well as all government agencies, including
      Legislature
      ." Smith v. Thompson, 1935, 219 Iowa 888, 258 N.W. 190
      " Mandatory constitutional provision should not be annulled
      by judicial pronouncement
      ." Id.

    The actions or inaction of the three branches of Iowa government have operationally deleted Article I § 2 from the Iowa Constitution. There is no method by which the people can alter or reform government, at any time, when they define the need to do so; and though it may be read, the wording and spirit of this section are rendered moot and the power removed from the people in direct contravention of the clarion purpose of its inclusion. The administrative shroud encasing this section is clearly prohibited by the very wording the State is endeavoring to segregate from the people.

    The State government has contradicted the element of the Constitution which creates it. This claim is supported by Article X which specifically lays out the methods to amend the Constitution and also Article XII § 1 which charges the Legislature with the duty to effectuate the constitution. The insurmountable bars placed around this constitutional element by the three branches of Iowa government equates to an admin-istrative amending of the Iowa Constitution without the suffrage of the people, a method expressly opposed to the intent of Article X as expressed during the constitutional debates. This is exactly the evil sought to be prevented by the declarations of Article I § 2. By removing this article from access by the people, the State has eroded the very foundation upon which it is constructed.

    The decision of this court in this case at bar will either affirm and uphold the Constitution by ruling for the plaintiff, or effectively amend the Iowa Constitution via an administrative deletion, without the consent of the people of this State.


    III. The Constitutional element, Article I § 2, provides the basis for granting the relief requested. and is also the sole basis that any court in this state is created or empowered to grant relief in any matter of civil law.

    Scope of Review and Error Preservation:

      "In the field of interpretation of Iowa Constitution, The Iowa Supreme Court is the final arbiter." Kruidenier v. McCulloch, 1966, 258 Iowa 1121

    The petitioner preserved this error motion for declaratory ruling pages 8,10,10. Resistance to motion to dismiss page 5, 6. The power of the courts to grant relief is ultimately founded upon Article I § 2; power cannot be created, there has to be a tangible source.

      No department can exercise any power or authority not granted to it by the people. Loftus et al v Department of Agriculture of Iowa (1930) 232 N.W. 412, 415

    Argument: This case presents a Case of first impression in Iowa: As the sole source of any powers of government, Article I § 2 also provides the basis for any function of government; including the exclusive source of any basis for the granting of civil relief by an Iowa court. The plain language of § 2 can leave no doubt as to the intentions of the framers:

      "inhere" means existing in and inseparable from something else; sticking fast. Miller v. Struck Const. Co., Ky., 251 S.W. 2d 457, 459 (underlining added)

      A quality or attribute is "inherent" when it is firmly or permanently contained or joined; infixed; indwelling; involved in the constitution or central character of anything. Barnhart v. United Auto., Aircraft, Agri. Implement Workers of America (UAW-CIO), 79 a.2d 88, 91, 12 N.J.Super.147(underlining added)

      The term "reform" means to correct; to make new; or to rectify. McCorquodale v. State, 29 S.Ct. 146, 147, 211 U.S. 432, 435, 53 L.Ed. 269, citing Rapalje, Law Dict p. 1083; McCorquodale v. State, 98 S.W. 879, 887, 54 Tex.Cr.R. 344.

      The word "alter" means to make a change in, to modify, to change some of elements, ingredients or details without substituting entire new thing or destroying identity of thing affected, to vary in some degree. Noyes v. Rothfeld, 78 N.Y.s.2d 433, 436,191 Misc 672.

    The word "inherent" explicitly proscribes the interpretation of any subsequent delineation of political power as a complete surrender of those powers, placing a qualifying restriction upon the ensuing "vestment" of powers, or the lesser "authority", to the three branches. The word "reform" in this section explicitly reserves to the people the right to cast aside and begin anew the constructs derived from their consent. The word "alter" is the word most relevant to the case at bar. To "alter" the constitution would be to "reform" the government it creates but to "alter" the statutes would, in all cases, modify government without possibly destroying the Constitutional identity of that government. Thus the petitioners seek to "alter" government by changing the statutes comprising particular aspects, or the procedures, of the agencies of State. This right, because of its placement within the Constitution can only be viewed as the broadest and most complete restriction upon government within the constitution and the most preeminent civil right above all others including grants of power or authority.

    Whether the civil grounds for relief are contained within the Iowa Administrative Code, the Iowa Rules of Court, the Iowa Code, the Constitution or any other document of State government or governmental precedent, those grounds are founded solely upon Article I § 2 of the Iowa Constitution which provides for the creation of civil law and its application. What will be clarified here is :

    1. The right to alter and reform the statutes comprising government exists as an entitlement for all Iowans without governmental interference.

    2. The Secretary of State is the correct officer of State to sue in order to assert this right.

    3. The court can properly issue a writ of mandamus to poll the people in order to determine their demands with which the Legislature must comply.

    4. That the evils sought to be remedied by adoption of this element and the precursors of Article I § 2 are specifically the evils facing rural Iowans due to involuntary annexation.

    1. Prior to this constitutional delineation of political power there is no basis, branch, or government, only the ungoverned individual existing under natural law, and the States boundaries. At this point in the Iowa Constitution government is created and in that instant the people restrict the power of government by reserving unto themselves the right to alter or reform it, at any time, whenever they deem it necessary. Only subsequent to this constitutional element does civil law and its constructs known as government exist. Hence, the entitlement and grounds that the courts can base the relief requested upon in this case is the foundation for all other civil relief, constitutional or statutory, that the courts of Iowa may cite. Without Article I § 2 there is no basis for the entitlement or granting of relief in any conceivable suit because the Courts and all agencies of government are ultimately empowered by this element alone and would not exist without it.

      Rights of persons. Art I sec. 1. All men are, by nature, free and equal, and have certain inalienable rights—among which are those of enjoying life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness. (underlining added)

      Political power. Art I sec. 2. 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. (underlining added)

      Political power referred to in this section consists of the three great attributes of sovereignty, namely, legislative, executive and judicial authority, all of which is inherent in the people. Stewart v Board of Sup'rs of Polk County, 1870, 30 Iowa 9, 1 Am.Rep. 238(underlining added)

    That the people can invoke the rights and restrictions of Article I § 2 cannot be disputed without casting an obscuring shadow upon all subsequent elements of the constitution. The plain language of this section can lead to no other conclusion than that the people are the source of all political power and they also have retained the right to alter or reform the statutes and constitution comprising government, at any time, when they have need to do so. The problem, which the case at bar addresses directly, is how to determine the will of the people, directly, without interference by any agency of government as mandated. Marshall quoted Blackstone in Marbury v Madison
    , page163, directly addressing the situation at bar here:

      "In all other cases, it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded." Also "…that every right, when withheld, must have remedy, and every injury its proper redress."

    Thus the State is incorrect in asserting that there are no grounds upon which to grant the relief requested or no statement of fact entitling the petitioner to that relief.

    This element of the Constitution comprises the boundary between natural law and civil law. The cherished civil rights of religion, speech, assembly and petition, and all others contained within the bill of rights do not exist without the restricted political power of Article I § 2, lent to and creating the three branches of Iowa government. Any statement of fact entitling a party to relief or the relief granted by the courts upon the rights of Article I or any other subsequent element of the Constitution or statutes can only be allowed because of the foundation that Article I §2 provides to civil law. Barring invocation of the rights of Article I § 2 will set the precedent for revoking the rights and privileges founded upon it.

    2. The Secretary of State is in statutory control of statewide ballots via 47.1 of the Code of Iowa which reads in part: "… shall assign a number to each proposed constitutional amendment and statewide public measure, and shall adopt rules, pursuant to chapter 17A, to carry out this section." Statewide public measures have a basis in both this code section as well as 49A though there is no way to tender or create them in the Iowa Code or in the IAC; again placing access to tender a ballot item out of the reach of the people because the Legislature failed to enact enabling legislation in accordance with constitutional mandate, and the Secretary of State failed to create the rules in the IAC to properly carry out this statutorily mandated task. The state officer controlling the sole means of determining the will of the electorate under the Iowa Constitution is the Secretary of State. In reading Article I § 2 no agency for its administration can be delved nor any threshold of signatures or suffering, it is therefore implied and implicit that the people must have unrestricted access to the ballot, in the absence of effectuation by statutory means.

      Article II § 6; All elections by the people shall be by ballot.

    3. The Court is the sole of remedy available for assertion of this right. Having petitioned both the Legislature and the Secretary of State, no other governmental agency or process exists by which the people can invoke the rights and utilize the restriction contained in Article I § 2 when they define the public good requiring it. Again in Marbury v. Madison 5 U.S. 137,n at page 168, Marshall quotes from his authority upon this issue, Lord Mansfield:

      " Whenever there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right and has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.", "This writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." (underlining added)

    Again quoting Marshall,

      "This writ, if awarded would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, "to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously determined or at least supposes to be consonant to right and justice."

    Thus the Court is fully empowered and obligated to issue a writ of mandamus upon the Secretary of State to gather the will of the people through the ballot box. The statement of fact that Article I § 2 exists as a declared right is indisputable and entitles the relief sought.

    4. It is appropriate here to outline the conditions under which our constitution was drafted, opening a window into the contemporary circumstances of the framers and what may have driven their decisions.

      "In construing a constitutional provision the courts will inquire as to the provision superseded by the one to be construed and the evils and defects for which it did not provide, the remedy adopted, and the reason for it, and will adopt that construction which will suppress the mischief and advance the remedy." Town of McGregor v. Baylies, 1865, 19 Iowa 43.

      Words used in the Constitution are to be construed in their natural sense and in the light of conditions existing when the Constitution was adopted, and of the evil sought to be remedied or guarded against, as disclosed by authentic history, constitutional debates, and contemporary legislation relating to the subject-matter. N.W. Halsey & Co. v. City of Belle Plaine, 1905, 128 Iowa 467, 104 N.W. 494.

    The ultimate progenitor of Article I § 2 of the Iowa Constitution is the second paragraph of the first document of the United States, the Declaration of Independence. The evils sought to be remedied by that Declaration are closely mirrored by the application of involuntary annexation in the State of Iowa 223 years later. The remedies adopted by the colonists amounted to sedition, secession and armed insurrection against their government in order to free themselves. The reason for inclusion of Article I § 2 in the Iowa Constitution, was to safeguard the people from the necessity of the same curative measures the Colonists adopted. What was sought to be avoided was a government that could become a republican oligarchy rather than a democratic republic. The charges of the colonists against English rule are directly echoed by what rural Iowans are currently enduring under involuntary annexation in this State which fails to guard rural Iowans from the avarice of a metropolitan government which is foreign to them (the references regard the paragraph of the Declaration of Independence echoed as annotated in the appendix):

      6 >- The legislature refuses assent to laws expediently remedial to the plight of rural Iowans

      7 > 4 years of petitioning the GA upon these issues has been thwarted by the Legislative leadership in control of the Legislative calendar.

      10.> 368.11 dissolves all representation for rural Iowans at the whimsy of a City Council.

      11> This dissolution of representation places the territory in limbo, suspending the actions of County government needed in the area due to the anticipated jurisdictional change.

      13 > Justice is denied to rural Iowans when the committee formed under 368.12 can disregard and violate all proscriptions of 368.17 and forward a petition for election. Appeal under 368.22 prevents even the courts from intervening and stopping an election.

      14. > The CDB is deliberative upon the wants of the body politic rather than equity of law.

      15 > Officers of the state are not compelled to competency in the administration of the chapters responsible for, being dependent upon the improper participation of the AG.

      18 >The State and cities have combined under 368.4 to subject rural residents to jurisdictions foreign to us and contrary to the laws of Iowa (362.2 (4)) and without our representation or suffrage. Under these illegal acts the State has allowed:

        d cities to impose taxes upon us without our consent.

        e deprived us of proportional vote or suit in equity before the recognized
        Iowa court as the historical derivation of the statute allowed, placing all
        decisions upon the politically biased CDB.

        g The establishment of City Home Rule removed Judicial or Legislative
        review of the actions of cities, allowing arbitrary expansion of boundaries
        without reason and imposition of laws upon rural Iowans.

        h Place Municipal Codes upon rural land without providing services but
        restricting discretion in land usage in the raising and tending of livestock
        or other pursuits.

        i By removing all protection of State and county law and subjecting us to
        the whimsy of the legislation of a City Council.

      19 > The State has abandoned us to the avarice of a City Council, declaring us out of their influence or our county governments influence upon the tendering of an arbitrary involuntary annexation petition.

      20 The State has allowed the city of Des Moines to subject us to long term nuisances of smoke, ash, and pollution of our water, dismissing our pleas and charges as irrelevant while holding citizens to a higher degree of conformance and penalty for lesser actions.

      24 > In every stage of these oppressions we have petitioned the proper government agencies. Our petitions have been met by further dismissal engendering the feeling that we are truly stripped of representation when a city involuntarily annexes us.

      25 > We have wasted our breath before city councils,

        a We have opposed their "taking" of our homes and property
        b We have reminded them that many move to the country to leave a
        city
        c We have appealed to them that we already have communities of
        affiliation and pleaded that they not sever those ties by unwarranted
        action on their parts.

      26 > They have ignored our pleas and thus we must consider them antagonistic.

    To remedy evils wrought by the actions of England, the Declaration of Independence severed ties with England, calling for armed insurgency. The drafters of our State Constitution, recognized that the need may someday arise to make changes in the operation of Iowa government and desired to avoid insurrection. To do so, they declared inherent the right for the people to alter the laws of the State civilly, without the use of force. The Declaration of Independence may be 223 years old this year but the spirit is still young, and vibrant, as it was for the drafters of the Iowa Constitutions in 1844, 1846, and 1857, ready to make changes in government, the same as when the ink was still wet.

    Contemporary to the drafting of the current Iowa Constitution was denial of a call to constitutional convention by the State Legislature of Iowa by a Governor who both vetoed and, after being overturned by the GA, pocket vetoed the act of the Legislature. In the early 1840s, in Rhode Island, the people of the State created and ratified their own Constitution when their old one failed to serve their interests, precipitating a legal battle over which Constitution was in effect: the governments or the peoples. States preceding Iowa into statehood had constitutions that posted no limitations upon legislatures and many of those bodies abused their powers by catering to the whims of people of wealth and corporations. The contemporary legislators violated the faith entrusted to them resulting in restrictions of legislative powers in constitutions written in the 1840s and later. The 1846 Constitution clearly delineated bounds and restrictions and the 1857 Iowa Constitution did not relax those restrictions in the least and actually imposed greater checks upon its authority.

    The environment influencing the intentions of the constitutional framers may be delved from two law review articles which relate the circumstances contemporaneous of the 1857 drafting. Both relate times that demanded restrictions and sureties of the right to alter or reform be placed in the constitution and those times are not too different from these:

    The natural rights clause of the Iowa Constitution: When the law sits too tight. Bruce Kempkes, 42 Drake L.Rev. 593(1993)

    Rediscovering the Iowa Constitution: The role of the courts under the silver bullet. Bruce Kempkes, 37 Drake L.Rev.33 (1987-1988)

      "Under our form of government the legislature is not supreme. It is
      only one of the organs of that absolute sovereign that resides in the
      whole body of the people
      ." Reed v. Wright, 2 Iowa (Greene) 15, 21 (1849)

      "The people are sovereign, and speak through their constitution, and when they thus speak its mandates are binding on the Legislature, which is but one of the agencies of government." C.C. Taft Co. v Alber, 1921, 185 Iowa 1069, 171 N.W. 719

    When viewed as a whole, the Iowa Constitution, including Article X which ensures Constitutional amendment without interference by an agency of government, is simply a metered delineation of the distribution of powers under Article I § 2. Article X is a safeguard against governmental agencies, which augments the guaranty of Article I § 2. Article X is wholly restrictive, guaranteeing that the Legislature cannot amend the constitution without the consent of the people, while also ensuring that the people can amend the constitution without interference from any of the governmental branches, at least every 10 years.

    Summary: The Courts derive all powers, including the basis for granting relief, from Article I § 2. That element of the constitution stands as the sole fact required to prove entitlement to the relief sought. The right to alter and reform inheres, supreme and sovereign, over all of the subsequent Constitution including subsequent Article I rights, enumerated or not, which exist solely upon the basis of this element. Article I § 2 is the most primary of restrictions upon all civil constructs; these limitations are decreed in this article in the same sentence within which government is instituted. The proper officer of the State to sue for remedy by mandamus is the Secretary of State. The plaintiffs have exhausted any other course of getting relief prior to seeking relief by mandamus from the courts. The intent of Article I § 2 is clearly to remedy the situation and "evils" facing the plaintiffs due to involuntary annexation whether the language is simply read or interpreted in its historical context. The Court, based solely upon rights entitled within Article I § 2 is obligated and empowered to grant the relief requested and mandated within that element.


    IVa.
    The Framers of the Constitution clearly intended and assumed that the people have access to the statutes comprising government yet included Article I § 2 as a guarantee that government could not ignore the people There is no conflict between citizens telling the Legislature what is required of them and the vestment of legislative authority which the people have parsed yet restricted to the General Assembly from their inherent powers

    Scope of Review and Error Preservation:

      "In the field of interpretation of Iowa Constitution, The Iowa Supreme Court is the final arbiter." Kruidenier v. McCulloch, 1966, 258 Iowa 1121

    This issue was preserved by the petitioner throughout the motion for declaratoy judgment and is the basic premise of the suit. Section IVb is included as a demonstration of the public need requiring and entitling invocation of this right thus fullfilling the requirements to invoke Art. I § 2. Though there are many different errors, irregularities, illegalities and Constitutional invasions, all spring simultaneously from the application of involuntary annexation by the varying levels of Government in Iowa upon rural Iowans.

    Argument:
    This case presents a case of first impression in Iowa. Though Article I section 2 has provided the foundation of Iowa Government since before the drafting and acceptance of our current Iowa Constitution there is no precedent upon the functioning of the element..

    There is a dearth of material in the constitutional debates of 1857 upon Article I § 2 but the subject matter and philosophy is thoroughly discussed in the debates upon Article X. These debates centered upon ensuring that the people retain unimpeded access to amending their Constitution on the peoples' own terms, without interference by any branch of government. There was the additional intent of proscribing the Legislature from amendment outside of the consent of the people. It is proper and clear that the Framers held the Constitution in an elevated status compared to statutory law, and that they held the right to alter or reform the Constitution as fundamental. By inference from their argument and basic logic, if the paramount law is alterable and reformable by the will of the people, the subsequent and subordinate derivations must be more freely adaptable to the peoples will. These debates occurred on Thursday February 19
    th, 1857, the 27th day of the debates.

    Upon the superiority of the Constitution, which they were striving to guarantee the electorate of the State unobstructed though structured access to, over the inferior and more transitory statutes. It can be inferred from the comments and nature of the debates that the framers believed that the people had retained access to the statutory law of the state. The discussion here concerns ensuring that the people have the right to alter or reform their constitution. The substance of the debates clearly cover the philosophy of Article I § 2.

    Mr. Gibson.623 " The legislature, as I understand it, are nothing but the servants of the people to carry out their wishes, and the people have a right to demand of them what they want, and that body dare not refuse them."

    Mr. Gillaspy. 608"I am opposed to making the constitution subject to amendment and repeal like a common statute"

    Mr. Solomon. 612"I am not surprised at the desire of some members to place this constitution on a level with statute law, for they seem to indicate by their course that they have no other conception of a constitution than that it should be a statute."

    Mr. Clarke of Henry.614 "… I believe he is honest and sincere; and when the gentleman gets up here and says he does not like to live under such an uncertain constitution, which may be changed as easily as a statutory act, I believe he is honest and means just what he says…"

    Mr. Parvin 622" …I would not throw the door wide open, so that upon any little excitement the constitution might be changed without due reflection and deliberation.

    Upon the timeliness of amending the constitution. The time spoken of here is the delay to have two successive Legislatures act upon the Constitutional amendments.

    Mr. Hall
    .617 "Now, I would not object to this at all, if we had annual sessions of the legislature. But with only biennial sessions of the legislature, it seems to me that it is putting off too long what may be essential amendments to the constitution."

    Mr. Clarke of Johnson 617" We do not know but what, when these internal improvements are in the course of construction, when these banks of issue are at work, throwing their paper before the country, some emergency may arise which will call for speedy action in the amendment of this constitution. I want to provide a way to do it, and it does seem to me that the provision made by the majority report is fair and safe."

    Mr. Marvin: 619 "The difficulty appears to grow out of the length of time required, before we can secure an amendment to the constitution, though its necessity may be ever so obvious. "

    Upon the number of citizens required to tender a petition.

    Mr. Gibson.615 " A number may be very few and yet be respectable. A half dozen may be a very respectable number, and yet it is not very numerous."

    Mr. Gower.615 " I think if a petition of any number of our citizens is presented to our Legislature, that is a respectable number."

    Upon the right of people to access the laws governing them, not by requiring them to be regulated by the Legislature, but by imposing their will as mandatory upon the Legislature. It also is relevant to point out that each of these men are apparently paraphrasing Article I § 2 or some part thereof.

    Mr. Clarke of Johnson 617" I think this is fair. It is placing this matter where it properly belongs, in the hands of the people, and no gentleman need be alarmed for fear of hasty legislation in retaining this power where it legitimately belongs."

    Mr. Traer. 622" I believe we all agree upon one question, that the people are the source of power; or in other words, that all political power was originally vested in the people of this government. If that be the case, and we are all agreed upon that point, then the question arises - how, or in what way, are we going to delegate this power to our representatives in the legislature? I hold that we should do the same, as any individual would do, when he makes another individual his agent to carry out certain prescribed objects; reserve the right of countermanding the authority we give our agents at any time we may see fit. …"

    623 … "When we have agents to act for us, I hold that it is a contradiction in terms that we should give them the right to say when we may or may not act."

    Mr. Traer. 605"I hold that the people have an inherent right to change their fundamental law at any time without their representatives or any other body interfering with that right."

    Mr. Clark.608 " Now if the people are safe to be trusted; if we act upon the principle that our government is predicated upon the will of the people, and that our sovereign power traced back to its source, rests upon the individual, capable of self-government, if that is the ground upon which my friend from Wapello plants himself, I ask the gentleman where there can be a valid objection to this provision in the constitution, to allow the people at any time, upon the shortest notice, the privilege of altering the constitution when they have found it to fail to meet their wants, or to cease to provide for their interests?"

    609 " … The experience of the past proves the necessity of it. I think that there might be a case in this State in which it would be necessary perhaps to use that power, and when the legislative body might refuse to call a convention in accordance with the wish of the people."… " I am in favor of making the people directly the controllers of the government; of allowing them, themselves, without asking it as a favor of their legislative bodies, the right to say when they will change, alter, or modify their constitution."

    Mr. Gibson. 613"How that may be, I will not undertake to assert; but one thing is evident; whenever it is apparent that the people really make a demand, the legislature must obey."

    Upon how the will of the people is to be determined.

    Mr. Hall:624 "When it is necessary to ascertain the will of the people, the Legislature must provide the means of ascertaining it."
    "I say that the will of the people must prevail, but that there must be some mode of finding out that will" (from Mr. Webster's argument.)

    Mr. Traer, 624 quoting Chief Justice Taney : "If it be asked. What redress have the people if wronged in these matters, unless by resorting to the judiciary? The answer is the same as in all other political matters. In these, they go to the ballot boxes, or legislature, or executive, for redress of such as are within the jurisdiction of each and to such as are not, to conventions and amendments of constitutions."

    At the time of the Iowa Constitutional framing there were two state-wide elections per year with added provision for special elections when needed. The 1851 Code of Iowa section 237 denotes a general election or August election held the first Monday of August in alternating years. It also calls for an April election on the first Monday of April each year and ""special elections" means elections by the people called at other times."

    The Constitutional Framers of Iowa acknowledged access to statutory law by the people by their objections to "amendment and repeal" of the Constitution," like a common statute". In affirmation of this contention is the conspicuous absence of any proclamation or objection that statutes were beyond the reach of the people throughout the duration of the Debates. The debates here dealt not with giving the people the right to alter their Constitution but rather to ensure that the right could not be interfered with by any agency of government while at the same time ensuring that an agency could not amend the Constitution by its actions alone. The debates upon Article X being both contemporaneous and focusing upon ensuring the peoples access to the document that forms the foundation of their government can, by inference and logical progression, provide a window into how those framers considered access to the subsequent and inferior statutory code of Iowa and also how Article I§2 would have been viewed by them had it been debated.


    There is no conflict between citizens telling the Legislature what is required of them and the vestment of legislative authority which the people have parsed yet restricted to the General Assembly from their inherent powers.


    The petitioners have asked that the courts order the Secretary of State to place two questions before the electorate of the state to determine if the electorate wishes, or does not wish, for the Legislature to pass laws in accordance with one or the combination of the two questions. Such a vote would require the action of the legislature to comply with the public need as expressed through the ballot box as a mandate for action, though the particulars of that action are left to the Legislature. There is no conflict here with Art II §17. If the majority of the electors of the State of Iowa desire the legislature to perform a particular action, how can there not be a majority of the electors representatives wanting to comply with those directions?

      …because, in the exercise of the discretionary power vested in the people of the state, by the constitution, they have the right to say what laws shall be enacted for the "benefit, security, and protection of themselves, and for the public good." Opinion of Attorney General, Santo et al. v. The State of Iowa, 2 Iowa 165, 203

      General assembly Art. III Legislative Department § 1. 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"

      The State constitution is not a grant but a limitation of power, so that Legislature may enact any law not expressly or inferentially prohibited by Constitution
      . McSurely v. McGrew, 1908, 140 Iowa 163, 118 N.W. 415, 132 Am.St.Rep. 248

      Except as limited by state and federal constitution, people have power to legislate, and they can confer such power on their state Legislature. Gallarno v. Long, 1932, 214 Iowa 805, 243 N.W.719

      "If the general assembly intended to preempt municipal initiative and referendum powers, it could have done so by express and unambiguous statutory language." Clinton v. Sheridan,530 N.W. 2d, 694,

    This contention would also hold for the drafters of the Constitution who were unencumbered in their efforts to design our system of Iowa government. Initiative and referendum have developed precise definitions in the past 100 years though "alter" and "reform" may be substituted with a much broader and general meaning, as befits Constitutional language. Additionally, if there were any proscription of initiative and referendum in the Constitution, the Legislature could not have allowed municipalities the option of adapting those powers under city home rule.

      "In other words, what the State is forbidden to do respecting the personal and property rights of its citizens, it cannot create a municipality with power to do." Eckerson v. City of Des Moines, page 464, 137 Iowa (1908)

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
      Tenth Amendment to the Constitution of the United States.

      Each department of government is an agency of the people. No department can exercise any power or authority not granted to it by the people. By conferring a particular power or authority upon one department, the people thereby indicated that they withheld such power or authority from the other departments… … Through such declaration, the court, as an agency of the people, reports back to them that another agency, the Legislature has thus exceeded its power. Unless the Legislature has usurped powers prohibited by said Constitutions, the courts will not interfere.
      Loftus et al v Department of Agriculture of Iowa (1930) 232 N.W. 412, 415

    Regardless of any constrained, squinting and absurd interpretation claiming that alteration and reform (initiative and referenda) are not explicitly allowed in Article I § 2 or elsewhere in the text of the Iowa constitution those powers do exist in the state and are employed by government which is derived from the superior inhered power of the people. Thus the people are the source of those powers exercised and there is no explicit or implicit surrender of those powers anywhere in the documents of Iowa government. Therefore, the people have these powers, if not set forth in Article I § 2, then in accordance with Article I § 25 of their constitution.

      Article I § 25. This enumeration of rights shall not be construed to
      impair or deny others, retained by the people.

    The failure to recognize the inherent rights of the people by all three branches of Iowa government cannot be sanctioned. The withholding of Legislative action is as damaging to the rights of Article I § 2 as Legislation aimed at usurping their exercise would be.

      No statute can constitutionally derogate a vested right. Wright v. Marsh, Lee & Delavan, 1849, 2 g. Greene, 94

      "The people are sovereign, and speak through their constitution, and when theythus speak its mandates are binding on the Legislature, which is but one of the agencies of government." C.C. Taft Co. v Alber, 1921, 185 Iowa 1069, 171 N.W. 719

    By neglecting to legislate how citizens can effectuate alteration or reformation of the government, "at all times", the general assembly has failed to comply with its mandate contained in Article XII § 1. This failure does not, and cannot, abrogate and usurp the rights of citizens, thus the Secretary of State is obliged to place the two measures upon the ballot and the Legislature is bound by the outcome of the subsequent election. A hereditary lack of foresight by the General Assembly denies that body the privilege of regulatory procedure; it does not strip away the inhered rights of the citizenry, as declared in the constitution prior to the existence of the Legislature, to alter or reform government, including that body, whenever the public good may require it.

    IVb. The petitioners have demonstrated the public need to alter and reform the annexation statutes of Iowa, thus fulfilling the constitutional requirement for invocation of this right. This is not a separate issue though it demands isolation to avoid confusion. These arguments augment and complete the requirements for IVa thus presenting a case of first impression.

    1. The involuntary annexation statute violates the basic tenets of our system,depriving rural residents of all representation.

    2. The City Development Board is contravening the Legislative intent of the Chapter it administers by favoring the desires of cities instead of the wishes and desires of the residents of the territory as directed in 368.6.

    3. Involuntary severance and voluntary severance the sole remedy for improper involuntary annexation is beyond the reach of residents of the territory due to statutory requirements and the demands of the CDB .

    4. Cities are blatantly abusing the privilege of involuntary annexation.

    5. Post 1973 involuntary annexation has no precedent in Iowa law. It also denies residents of the territory refuge in the courts no matter how corrupted the process.

    6. The Judicial branch Attorney General has been improperly installed in the processes of the Executive branch CDB without express direction or permission in Constitution or Code.

    7. 368.11 allows cities to arbitrarily, unaccountably and irreversibly extend municipal boundaries against the wishes of the Iowa citizens living in the territory. This violates the equal application as mandated in Article I §6. Involuntary annexation is suffered under the arbitrary wishes of a foreign city government.


    1)
    In this instance the State has enabled a subsequent and, to those outside the legal bounds of a city as defined in 362.2, inferior foreign derivation of itself to strip rural Iowans of any way to be protect against being annexed against their will, without benefit, depriving them of security in their property.

    The local township governments of rural residents and their county government which is the single level of local government hierarchically in place above both cities and rural residents, have been rendered powerless by exclusion from the involuntary annexation statute. The exclusion of rural residents' local elected representatives from definitive input in the process strips them of any voice placing the citizens private resources in opposition to the bonding capacity of the aggressor municipality and the State.

    2) These involuntary annexations are of no benefit to rural or urban residents and will, in truth, be detrimental as cities stretch what is now lamented as inadequate services, thus diminishing security, protection or benefit derived from being included within a cities limits.

    The State agency overseeing the process, the City Development Board (CDB), lends a preponderance of validity to the wishes of cities in both involuntary annexation and severance despite demonstrated inability and failure on the cities part to provide services exceeding those received before annexation. This conflicts with the intent of the Chapter the CDB administers, expressed in 368.6, and is also a failure of State government to fulfill its Constitutional mandates "to provide for the protection, security and benefit of the people". The involuntary annexation statute, is irreversible by the residents annexed due to the standards applied by the CDB, and strips rural Iowans of representation during a process that affects, most greatly, their homes and families, when their representation and voice should be the strongest: this strength regarding their choice is the intent of the Legislature as expressed in 368.6 and an Article I § 1 right of "acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness."

    The statute, 368.11, is opposed to the intent of Chapter 368 as expressed in 368.6. This is particularly apparent when viewing the artifice of the city of Des Moines 368.4 agreements depriving residents of the territory of West Carlisle of any privilege conveyed upon them by the legislature in Chapter 368. The Board and Attorney General are complicit, having blocked both a voluntary annexation pursuant to 368.7, and an involuntary annexation filed pursuant to 368.11, by the residents of the territory of West Carlisle

      " No municipality should have the right to tie up adjacent territory unless it is prepared to proceed diligently to annex territory and extend needed municipal services Clive v. Colby 1963, 255 Iowa 483 121 N.W. 2d 331(underlining added)

    3) Involuntary severance from a city, also contained in 368.11, is extremely germane to this case since it is the sole remedy available to rural residents whose homes are seized by a city but never provided services. In the case of Lisbon, S98-04, the CDB set the bar unattainably high for the residents of the territory trying to involuntarily sever. Why do counties and municipalities have input in an involuntary severance or annexation when the residents of the territory do not? The county provides services to adjacent properties and really has no choice to service rural or newly rural residents who are in their jurisdiction. The only consideration should be for the territories residents who voiced a flood of complaints about Lisbons failure to fulfill its obligations to them as taxpayers. The cities and the county should have been consulted in the same manner that the people living in the territories are when the cities initiate an involuntary boundary adjustment: allowed to speak but ignored or simply not consulted, thus casting true illumination upon the word "involuntary". The cities are required to say how they will administer to annexed areas but no assurance that they live up to their obligations is in the code, 368.21 is an extremely empty statute. Even when the municipalities fail to meet even basic obligations in an annexed area the residents are powerless to sever from a city which freely taxes them for non-existent or sub marginal services because severance does not mesh with the plans of the Iowa Office of Economic Development and the City Development Board.

    The prior severance statute, 362.32 (1973), required that a suit of equity be filed by a simple majority of the residents of the territory which would allow witness upon oath to be entered into the proceedings. The current CDB requires a standard of proof that could not be attained, except by the most meticulous and disgruntled citizen. To tax citizens and not provide services in return, is fraud on the part of cities. The State has granted them immunity from any reprisal by the citizens affected. Thus the State has failed to ensure security for rural Iowans, protecting them from annexations which will not benefit them by not enacting an equitable severance statute.

    4) There is no need for Des Moines with 11.9 sq. miles (7,616 acres) of vacant yet developable land within its limits and a population drop of 1% since 1990, for the additional 14 sq. mile area (8,890 acres). Since all areas of the city previously annexed have not been provided the spectrum of services, Des Moines is obviously abusing the statute. After growing slowly to its current size over 150 years, a single city council in Pella is trying to more than double its size with one involuntary annexation petition, clearly an abuse of the statute. There are no pending plans for development by the cities nor a schedule which would bring any amenities to the areas greater than they are presently enjoying, in fact, the Des Moines petition explicitly states that it will not furnish sewer or water to the area but let developers bring it into the areas. The residents currently have snow removal, fire and law enforcement protection greater than Des Moines promises with the strained and diluted services which will result from increasing the city area by 18%. For the residents of the area the only "promise" is of higher taxation and more constraints on the use of their property with diminished services in return. The statutes offer no protection for rural Iowans against a city taxing their property and thus taking their resources while offering no benefit in return.

    5) The current application of involuntary annexation does not conform with the intent of the legislature, the prior code 362.26 (1973) or the historical derivation of the process. Involuntary annexation is an action take by the city council upon agricultural land without the request of the residents. In 1860 §1043, after a city election the courts were presented with a petition :

      "… but it shall be lawful for the voters residents upon the territory thus proposed to be annexed, or any of them to appear at said hearing, and show cause why such annexation should not be made, and if it appear by remonstrance or otherwise that a majority of the legal voters in said district so proposed to be annexed are oppose to such annexation, said annexation shall not be allowed. " (underlining added)

    The statute in 1873, §430, had similar provisions for the electors of the territory to accept or deny the annexation in §422 and §423. 1897 §610,§602, also allows rejection of the action by the residents of the territory. In 1913, city councils were allowed to annex land by simple majority vote of the city residents without the consent of the territories residents, however, land not platted into parcels of 10 acres or less or divided into such by the extension of streets and alleys could not be taxed and severance was accomplished by simple petition of the majority of the electors wishing to sever. In 1924, involuntary annexation was returned to the venue of the courts, again requiring a suit of equity against the residents of the territory. In 1962 the statute was expanded to proscribe the courts from allowing annexation when a city could not prove that it could extend services into the area, resulting in no benefit to the citizens.

    The enactment of City Home Rule in 1975 created the City Development Board. For the first time in Iowa, cities could use involuntary annexation without the supporting vote of the people being annexed, or review under the auspices of the courts, and without having to "prove" to the courts that they can provide services to the territory. A city wanting to annex vast amounts of property need only write a petition that deceptively redistributes city services. Both the CDB and the Attorney General, catering to the tilted political goals of the Iowa Office of Economic development, will accept such a petition regardless of nonconformance with the IAC or Code of Iowa, as they did with A98-03.

    The members of the CDB are not required to have backgrounds in law or in city administration or finance. They are nominated by a Governor with a political agenda. Thus the application of the law may be equitable within the political perspective but not be an equitable application of the law for all involved and even opposed to the intent and restrictions of 368. Where the courts, blindfolded, balanced the scales of annexation prior to City Home Rule, there is no preventing the Office of Economic Development from placing a thumb on the scale while keeping their eyes on a goal, as they are now doing, with the collaboration of the Attorney General.

    There are no requirements for the cities to conduct an involuntary annexation other than filing a plausible petition that the CDB wants to accept because it must accept petitions "meeting the requirements of the chapter"(368.12). There is no procedural requirement to ensure that a city can provide for, or has provided for, its' obligations because that statute, 368.21, is meaningless and moot, appointing a city official with no probable concern for the people of the territory. There is no requirement that the city list the services already provided to the territory to allow competent comparison. Even the committee of 368.14 is useless to the residents of the territory, being comprised of a negating vote from the city and the same Board Members who approved the petition to elevate it to the committee. Ultimately even the right to protest a faulty and inappropriate acceptance by the committee in the courts has been usurped by 368.22 under which "Appeal of approval of a petition or plan does not stay the election." Thus even if all conditions under which the annexation is barred by 368.17 exist and are apparent in the petition, once the committee approves the petition, even the courts cannot stop an election. This strips rural Iowans of any protection or security under civil law against involuntary annexations that offer no benefit or are barred by statute in 368.17 and thus illegal.

    6.) The Attorney General is integral to the functions of the City Development Board, monopolizing the discretion of the Board without express provision in Constitution or Code.

    The insertion of the Attorney General, a child of the Judicial branch, into the Executive branch board processes, fails to comply with both constitutional and statutory limitations. A citizen appearing before the CDB is opposed by two branches of Government which currently wend and wind their argument for the benefit of the aggressive municipality attempting the arbitrary annexation; all of them holding comparatively boundless resources with which to subjugate the citizen. The Attorney Generals' reading of law should be without favor to citizen or municipality, forwarding answers to posed questions of law in prepared and supportable text. There is no allowance in Iowa for the Attorney General to be anything but an observer and provider of written answers to questions of law for the CDB.

      Article III of the distribution of powers. section 1. The powers of the government of Iowa shall be divided into three separate departments—the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.

    A. Article V § 12 of the constitution specifies the Attorney General as an agency of the Judicial branch of government, charged with the powers of that branch. However, the AG overtly controls the functions of the City Development Board, a component of the Executive branch, in contravention to 368.9 which does not designate the Attorney General as a member of the board and Article III §1 which bars such exercise.

    B. Chapter 13.2 § 4 requires and confines the Attorney General to respond in writing to any questions of law submitted by an officer of the state. The verbal opinions before the CDB are not concise and are difficult to follow due to the oftentimes disseminated oral discourse. The Board votes in accordance to the transitory verbal advice proffered by the Attorney General regardless of the accuracy of that advice.

    C. The current participatory status has resulted in verbally misquoted statutes, and unsubstantiated argument presented as fact by the Attorney General before the Board. The resultant errors of record have subsequently been defended by the Attorney General as semantic accident or lack of comprehension by the appealing party, and thus the "legal opinion" of previous meetings is freely amended, without procedure, to diffuse the argument of appeal. This exercise in the functioning of the CDB erases the demarcation of the separation of powers specified in Article III sec 1. By not asking questions of law in preparation for hearings, the CDB fails to respond to petitions as a deliberative body but instead votes upon the best recollection of statutes of whichever Attorney General is present, with a tilt upon that advice to conform with the desires of the Office of Economic Development. Thus placing citizens at a gross disadvantage; by not responding to questions of law in writing, the record of the AG and this Executive branch board is inconsistent, insupportable and administers the law in contravention to the intent of the Legislature.

    D. The involuntary annexation statute, 368.11 as applied by the AG is diametrically opposed to the intent of Chapter 368 as expressed in 368.6. This is clearly apparent when viewing the artifice of Des Moines to deprive the residents of the territory of West Carlisle of any privilege of Chapter 368. The CDB, upon the convoluted advice of the Attorney General, has blocked both voluntary annexation pursuant to 368.7, and involuntary annexation filed pursuant to 368.11, by the electors of the territory of West Carlisle. The District court reversed that decision and remanded the involuntary petition (A98-02) back to the CDB in Polk County AA3155. The State and City of Des Moines have currently filed an appeal in that case, demonstrating the war chest(s) that oppose rural Iowans own desires for their homes.

    E. During the appeal for rehearing on "West Carlisle" A98-02 in front of the CDB, the Attorney General claimed that the Attorney Generals office was allowed by statute, though which one was never cited, to render verbal advice to the various boards of the State Executive Branch. When presented with the copies of pre 1975, 362.26 and all codicil of 368.4 and 362.26 along with arguments against the Boards current application of that simple statute, AG Chris Scase dismissed the argument and evidence because she was "sure" it had been codified to allow the current application, despite the copies of historical and current law laying on the table in front of her not supporting that assertion. The Board based their decision upon this flawed and incorrect verbal advice with no evidence supporting it. With the excessive credence lent by the CDB to the AGs advice, in the face of contradicting evidence, it should be researched, supported, documented and presented to them in writing, especially when deciding the permanent future legal status of Iowa citizens homes and property and in accordance with the intent of Iowa annexation Statutes and the Constitutional mandate of separation of power.

    F. Prior to 1919 the duties of the Attorney General were listed in the Code of Iowa beneath the Judicial branch. In 1919 the duties of the Attorney General were mistakenly listed under the Executive branch; There was no legislative act or constitutional amendment legally calling for that transfer. Regardless of where those duties are erroneously seated in the Code, the Iowa Constitution empowers Attorney General within the Judicial branch of government, thus it cannot participate in any function of the other two branches unless expressly permitted or directed to.

    G. The constitutional framers had no ambivalence about which branch the Attorney General belonged to: Attorney General - Friday February 13
    th 1857 Iowa Constitutional Debates on Judiciary. Page 478

      Mr. Clarke, of Johnson. We have provided for the election of district attorneys, and I think it is better now to provide for the election of an attorney general. I, therefore, offer the following as an additional section:
      "Sec 8. The general assembly shall provide by law for the election of an attorney general by the people."

              Mr. Palmer. Is not that officer provided for by the report of the committee on the executive department?

              Mr. Clarke, of Johnson. The attorney general is not an executive officer, but an officer of the judicial department. This is the proper place to provide for this officer, quite as much so as to provide for the election of district attorneys.

              Mr. Harris. I have but very little feeling in regard to this matter, but I was always of the opinion, that the attorney general was a sort of fifth wheel to the wagon, and of no account. The legislature created this officer, and if it be deemed necessary, they can provide for him. This officer may be really indispensable, but I am disposed to think otherwise.

              The question was then taken by yeas and nays and the section was agreed to; yeas 18, nays 13…

    Summary: The Attorney General is elected by all Iowans. Remedy of this intrusion by one branch into the functions another would require quo warranto proceedings, however, the irregularities, illegalities and Constitutional invasions as far as the instant case is concerned would be avoided with the repeal of involuntary annexation or the institution of a bifurcated vote. When representing a State Agency as a "client" during proceedings the AG no longer serves Iowans in general. This is apparent and resultant when that agency has express goals dependent upon the current political flavor of the Executive branch which require the AG to tilt arguments towards those politically motivated goals, at that point the AG becomes a partisan lawyer for that agency. This is why the AG, empowered under the Judicial Branch and who represents the people of the State, should not participate in any function of State Agencies except for answering questions of law in written answers of equity. This is directed in the Code of Iowa 13.2 § 4 and mandated in Article 3 § 1. This willingness to "bend" the law to the will of the Office of Economic Development in involuntary annexation proceedings by the AG emphasizes the public need to reform and alter this oppressive statute which deprives rural residents of any voice to ensure that they are protected, secured from impropriety and will benefit from the governmental action of annexation. The actions of the Attorney General before the CDB have not protected the citizens of Iowa, nor benefited them, rural or urban, nor provided security to them in the determination of what the people desire under Article I § 1.

    7) Involuntary annexation is a violation of Article I § 6. There is no reasonable basis for classification as the State is applying involuntary annexation. There are no bounds upon the size of the area being sought nor actual "proof" that the areas would be serviced. Regarding the Des Moines petition A98-03 and the Pella petition A99-01 there is no topographical basis for the provision of sewer. There is no basis upon development, in fact, Des Moines has excluded Greenfield Plaza and Capitol Heights which are developed to urban levels. The classification of being involuntarily annexed was not predated by the city soliciting voluntary annexations and failing. There is no classification based upon growth proximal to the area or the way the territory annexed is surveyed. The classification of being placed within an involuntary annexation territory and the accompanying deprivation of representation is completely arbitrary, based upon the whimsy or rapacity of the city council.

    The statute 368.11 violates the equal application right in that it allows cities to arbitrarily decide to include people beyond their jurisdiction within their limits without requiring any consultation of the people or their representatives and with such a preponderance of electors that the residents of the territory have no hope to prevail on the ballot. In all other votes concerning combination of the jurisdiction of two political subdivision when there is the possibility of a numeric disparity the Constitution or Statute requires a bifurcated vote.

      Article III § 30 …; and no law changing the boundary lines of any county shall have effect until upon being submitted to the people of the counties affected by the change, at a general election, it shall be approved by a majority of the votes in each county, cast for and against it.
      Laws uniform, see Art I, § 6

      Iowa Code 368.19…In the case of consolidation, qualified electors of each city to be consolidated may vote, and the proposal is authorized only if it receives a favorable majority vote in each city…

    In all other votes for jurisdictional changes in Iowa the voting is left to those effected by the alteration:
    Voluntary annexation 368.7 must be tendered by 100% of the property owners (except when done as an 80/20) with no vote required.

    Incorporation and discontinuance the "qualified electors of the territory or city may vote. " 368.19.
    It is only when the people of the territory who have the greatest need to express their wishes for their homes that the State denies an equal vote. In these two actions the diminutive number of residents of the territory trying to sever for reason, or against an involuntary annexation for reason, have no chance against the vote of the city or the funding available to campaign competitively against a city government. The number of electors in West Carlisle, 84, is easily overshadowed by the people employed by the Des Moines city hall let alone the number of electors from the 160,000 city population..

    It is also repugnant that a voluntary severance in 368.8 requires the assent of the city council which is likely the source of the citizens' desire to sever and most unlikely to agree. Equity could be attained by applying the same voting principals required under 368.11, combining for a majority the electors of the territory seeking severance and the members of the city council, which would engender a ping pong game of jurisdictional changes.

    The operation of the involuntary annexation statute and the annexation moratorium, and voluntary or involuntary severance statutes combine to deprive rural Iowans of their right to pursue how they determine is the best way of protecting their property and pursue safety and happiness for their homes and communities. This is true before involuntary annexation when their fears are speculative yet real, and after involuntary annexation when their fears of municipal indifference and incompetence have been realized. Rural Iowans can presently be deprived of any right to keep from being included within a cities limits and, once within those limits, prevented from reverting to their choice of County or city government, all at the whimsical ambition of a transitory city council with an eye on the bonding capacity of the city.

    All case law available on annexation elections, 368.19, predates the current chapter and was rendered upon 362 of the Code of Iowa 1975 or earlier. Those prior cases were brought about when annexation was a matter before the deliberative Courts of this State and not a State agency whose board members have no requirement of an understanding of law and no checks upon their discretion other than the political tilt of the appointing Governor and the current direction of the Office of Economic Development. The current direction, today, is away from conformance with 368.6 to such an extreme that the Boards decisions have been rendered only after the law has laboriously and contortionisticly been turned to the favor of municipalities by the Attorney General, who should not be participating. When annexation was before the Courts, the people of the territory were guaranteed a judicious outcome thus the voting was less relevant to the process. Under the current system the only check upon what rural residents can view as an unholy alliance between the Iowa Office of Economic Development which directs the City Development Board, the Attorney General, and the municipalities is the vote; and for those citizens, the vote is moot. Under this current system the residents of the territory have no electoral voice when the functionaries at city hall alone outnumber not just the electors but the entire population of the territory being annexed.


    Summation:
    This suit was improperly dismissed by the district court because the State was time barred from submitting a motion to dismiss under RCP 88 nor could the State prove, or even endeavor to prove, its allegation that no statement of fact could entitle the relief requested. Furthermore, the Court was obligated to deny the states motion after the petitioners filed resistance while the State was in default status.

    In dismissing the case, the Iowa District court has completed the encasement of Article I § 2 removing it from the access of the people. We thus have a constitution under which fundamental elements can be obscured by the agencies it creates and regulates. The Legislature has failed in its constitutional mandate to enable the Constitution. The Secretary of State has failed the statutory mandate to facilitate public measures. The Court has annulled a mandatory statutory provision. It is the duty and obligation of the Supreme Court to remove the shroud from this element.

    Article I §2 is the well from which all civil law, civil constructs and relief under civil law is drawn by any agency of State. The civil State exists solely upon the foundation of this constitutional element. This clearly worded element, along with the creation of government, restricts government to conformance to the will of the people who can alter or reform it, at any time, when they determine the need to do so. This restriction ensures that the electorate of the state is allowed to recast or amend any function of government and bars interference by any agency of government.

    In order to determine the will of the people there must be an election, and the constitution requires a ballot to do so. The Secretary of State is charged with the duties of conducting elections and is thus the proper state office to sue for relief.

    After rejection by the Legislature and the Secretary of State, the Courts are the only remedy available for invocation of the rights and restrictions of Article I § 2. The court is obligated to issue a writ of mandamus because no statutory provision for its exercise has been written into the Iowa Code and no other remedy is available.
    The restrictions of this article are a guarantee against the necessity of rebellion to recast a government or function that has become oppressive. The Declaration of Independence which severed the ties of the Colonists with England most eloquently conveyed the sentiments which spurred the inclusion of Article I §2. However, political abuses of power and even the conflict between citizen and State in Rhode Island over different Constitutions and the power of the people to draft their own probably had more influence upon the constitutional framers decision to include this element than the threat of tyranny.

    Those framers clearly held the constitution in an elevated position yet not above the sovereignty of the people. The statutes, of course, were subordinate to the Constitution which the drafters required that the people have easy access to amend. By inference from those debates concerning the ease with which statutes could be amended or repealed, the framers considered the statutes alterable and reformable by the people when any number of them required. They considered the discretion of representatives revocable upon need and held absurd the notion that a representative could not be told what to do by those represented.

    There can be no conflict when a majority of the electors of Iowa speak through the ballot to give their elected representatives mandatory direction; how such direction from the majority of Iowans could fail to find a majority in the Iowa General Assembly is inconceivable. The powers of initiative and referendum exist and are exercised in Iowa government by statutory grant of the legislature which derives all of its restricted authority from the people. There is no surrender by the people of the rights to exercise those powers and in fact they are specifically preserved in Article I § 2 with much broader language. Article I §25 further stipulates that if the powers exist, the remedy for the right to exercise them does also and shall not be suborned by the declaration of rights in Article I. However, the peoples powers are constitutionally proscribed from the actual enactment or repeal of laws by the ballot due to the subsequent restriction that all laws must be titled: Be it enacted by the General Assembly of Iowa. This allows the people to tell the legislature what they demand but the legislature must determine how to conform with those demands.

    To fulfill the requirements of Article I §2 there must be a public need requiring the exercise of these rights and restrictions. It must be evident that "government" has failed to provide for the security, benefit or protection of the people under civil or natural law. The rights and privileges of a single individual should not be invaded under any pretense when other measures exist to attain the intended goal or no necessity has been exhibited. Yet involuntary annexation by municipalities and State government disregards constitutional mandates, statutory intent and basic democratic tenets.

    The instant that a municipality files an involuntary annexation petition, the citizens within the territory are no longer within any jurisdiction enabled to aid them if they wish to resist. There is no provision for consultation or agreement with County Supervisors or Township trustees, no local official elected to represent rural Iowans is empowered to, or required to, participate in the action on behalf of the residents they represent; the citizens and their properties are simply cut from the vine, placed in a bureaucratic limbo and left to the mercies of a municipal government that was not elected by them. All benefits and any security or protection derived from county or township government is terminated.

    Once annexed within a city there is no real hope of severance if the municipality does none of the things promised except raise taxation due to the CDB applying one set of rules on behalf of cities and another opposed to citizens. The cities cooperation or the standard for proof for citizens is unattainable while the statutes affect the citizens homes when, by legislative intent, it should favor their wishes. Coupled with the involuntary annexation statute the powers bestowed upon municipalities allows all parties of influence to disregard those being annexed or those that have been annexed stripping them of security in their homes and denying them the freedom to pursue a government which will ensure their happiness.

    Additionally, the CDB and the Attorney General have allowed cities to illegally extend their 362.2 jurisdictions in 368.4 agreements thus depriving residents of their constitutional and statutory rights and privileges of representation, voluntary annexation and involuntary annexation. This allowance has been overturned at the District Court level (Polk Co. AA3155) and is currently under appeal by the State and City of Des Moines.

    The Attorney General, sits as a functioning member of the CDB in contravention to Constitutional mandates and statutory guidelines. Rather than written legal fact of impartiality as is required and expected of the Judicial branch, the AG renders opinions of law canted to further the goals of a government agency in opposition to the rural people of Iowa. As individual citizens, rural Iowans should expect the Attorney General to interpret the law in keeping with the intent of the Chapter being administered or in a non-partisan fashion. Though this participation would not be eliminated by the repeal of involuntary annexation or the enactment of a bifurcated vote, the total lack of benefit from the office of attorney general would be rendered moot thus ensuring that the people have some security against the unchecked discretion exercised by municipalities and the CDB based upon the legal contortions the Attorney General. Repeal of, or a bifurcated vote in, involuntary annexation would ensure that government must provide security, and protection for rural Iowans thus guaranteeing that annexation would be of benefit while also preventing invasion of equal application rights.

    There is no reasonable basis for the classification of rural residents being involuntarily annexed thus 368 .11 violates the equal protection clause, Art. I §6, of our constitution. Municipalities are empowered by the statute to reach as far as they desire into the countryside and impose their taxation and ordinances upon rural citizens. There is no limitation of acreage or threshold of population, no limitation that the property must be uphill from the sewage plant or within 2 miles of a water main, and no need to prove that cities have rendered the promises of past annexations or that they are truly capable of providing the amenities of the current annexation: being involuntarily annexed by a city with the accompanying invasion of rights and privileges is completely arbitrary and without reasonable basis. This "taking" of Agricultural land also removes some freedom to use that land for profit, if livestock is not profitable for a number of years, most cities have ordinances which would prevent new or old stock operations from being activated, thus involuntary annexation is truly a "taking" of property rights by a city and invasion of the right to possess and protect property. The current statutes do not protect rural Iowans in their homes or properties from senseless municipal endeavors and fail to ensure benefit to those annexed in a reasonable amount of time, if ever. There is no security against a city depriving rural Iowans of many aspects of a rural lifestyle and depriving them of resources through taxation and city legislation at the city councils whimsy without providing benefit in return.

    The public need requiring invocation of this right has been indisputably demonstrated by the complete failure of 368.11 as enacted and as applied to provide any protection, security or benefit to rural Iowans, their homes or properties. Singularly the "problems" of involuntary annexation are insufferable; combined they seem to strip rural Iowans of citizenship at the whim of a city council. There has been clear demonstration of the existence of the rights and restrictions within Article I § 2 and the courts obligation to facilitate the invocation of those rights. There is no opportunity for the election of remedies since no other remedy exists. There has been clear demonstration that no other means to express these rights exists and that this court will have effectively removed this element from the Constitution of Iowa by denying the request for mandamus. The court should ask themselves 1. Does the right to alter or reform exist in Article I § 2? 2. Is the relief requested the only way to exercise the right under Iowa Civil Law? 3. Does the power to determine when the public good requires invocation belong to the people? All subsequent declared or delineated rights and constitutional elements must be read under the light of Article I section 2, and though invocation should attempt to comply with those derivations, such compliance is not a constituent of invocation because there is no such measure implied or implicit in the element.

    In applying to the courts for declaratory judgment, the petitioners attempted to prevent invasion of the Constitutional rights contained in Article I § 2. However, the Attorney General delayed any response to such extent that the time constraints in the Iowa RCP were exceeded and at that time failed to even explore the issue honestly but opted to motion for dismissal. This indifferent approach to a question laboriously placed before the State by citizens of Iowa failed to serve any interest of the State or citizen. Recognizing that the right has now been invaded, the relief sought shall be modified from a time constraint that cannot be met by the Court to one that is within the Courts power. At what time is the Attorney General required to actually read the Constitution, and support the Constitution as pledged in the oath of office?






    CONCLUSION


    For the reasons contained within and upon the indisputable existence and entitlements of the Constitution of the State of Iowa Article I section 2 we pray that the courts grant the relief requested:

    A writ of mandamus to the Secretary of State to place the following public measures on a ballot and to proceed with the required publications and procedures to validate the resultant ballot:

    The referendum to be placed upon the ballot is:
    Should the involuntary annexation statute be repealed?
    YES ___ NO ___


    The initiative to be placed on the ballot is:
    Should a bifurcated vote be required
    for involuntary annexation? YES___ NO___



    Request for Oral Argument
    The Plaintiff - Appellent respectfully requests that he be heard in oral argument upon the submission of this case.

                                                    Respectfully Submitted,
                                                    John F. Anderson, Pro Se
                                    
                                                    John F. Anderson
                                                    4491 SE 40
    th
                                                    Des Moines, Iowa 50320