IN THE SUPREME COURT OF IOWA
________________________________________________________________________
John Francis Anderson,                           )
Mayor Pro Tem of the Territory              )
of West Carlisle, Polk County, Iowa        )
xxxxxxxxxx                                              )
                                                                ) 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 REPLY BRIEF

John F. Anderson

PRO SE FOR PLAINTIFF- APPELLENT

John F. Anderson
4491 S.E. 40
th Street
Des Moines, Iowa 50320
(515)-266-5348 home (515)-557-8706 work






TABLE OF CONTENTS
Statement of the Case:
I. WHETHER THE DISTRICT COURT REASONABLY EXERCISED ITS DISCRETION BY CONSIDERING AND ACTING UPON THE SECRETARY OF STATE'S MOTION TO DISMISS.
  SUMMARY:
  ARGUMENT:

II. WHETHER THE STATES "BUNGLE" IN FAILING TO ADHERE TO THE R.C.P. TIME STRICTURES MITIGATES THE DEFAULT STATUS THUS ATTAINED
  SUMMARY:
  ARGUMENT:

III. WHETHER THE PLAINTIFF PRESERVED ERROR WHILE NOT FILING FOR AN EXPANDED RULING UNDER 179(b)
  ARGUMENT:
  SUMMARY:

IV. THE VESTMENT OF LEGISLATIVE AUTHORITY DOES NOT AND CANNOT ANNULL THE RIGHTS CONTAINED WITHIN THE ARTICLE I "BILL OF RIGHTS", SPECIFICALLY THE ARTICLE I § 2 "RIGHT TO ALTER OR REFORM", WHICH THE STATE REFERS TO AS VOTER INITIATED REFERENDA AND INITIATIVE.

CONSTITUTIONAL ANALYSIS:
  ARGUMENT:
  SUMMARY:

THE STATE HAS CONCEDED TO THE PLAINTIFF'S ARGUMENTS
Conclusion:
Statement of the Case:
          1. 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.
          2. 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.
          3. 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___
        4. 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.
        5. The Attorney General filed a motion to dismiss based upon R.C.P. 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.
        6. The petitioners filed a resistance to the States motion to dismiss on May
      26, 1999.
        7. A hearing on the States motion to dismiss was held on July 7th 1999 in
      Polk County District Court, Judge Hutchison presiding.
        8. The plaintiff filed a motion for injunctive relief on July 8th, 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.
        9. The court issued its ruling on July 8, 1999 granting the States motion to
      dismiss.
        10. A Notice of Appeal and Combined Certificate were filed and served on
      July 19,1999.
        11. A request for injunctive relief was filed and served on October 7, 1999.
        12. A resistance to injunctive relief was filed by the Secretary of State on October 15, 1999.
        13. An order denying the requested injunctive relief was issued on November 10, 1999.
        14. A request to reconsider the Plaintiffs request for injunctive relief was filed on November 17, 1999.



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

          SUMMARY:
          
      The clear and concise timelines in the Rules of Civil Procedure are intended to govern the processes of the Judicial branch of Iowa government. While the court has discretion in ruling upon motions from litigants, it does not have discretion to nullify or ignore the R.C.P. in the absence of such motions or when the rule utilized does not expressly allow such discretionary function.

          
      ARGUMENT:
          
      R.C.P. Rule 1. APPLICABILITY – EFFECTIVE DATE – STATUTES AFFECTED
      These rules shall govern the practice and procedure in all courts of the state, except where they expressly provide otherwise, or statutes not affected hereby provide different procedure in particular courts or cases.

          "[5] We take this occasion to stress the importance of the rules of civil procedure. They have been adopted for a definite purpose. If the courts of our state will abide by the rules, court administration will be expedited. The pathway of the trial court in the cases at bar could only lead to chaos, which we are striving to avoid in promulgating rules of civil procedure. Local trial courts and the courts of each district cannot adopt an proceed according to rules which are contrary to the rules adopted by this court." Thews v. Miller, 1963, 255 Iowa 175, 121 N.W. 2d 518,522. (emphasis added)

          In general, the Rules have the force and effect of statutes. Phillips v. Catterson, 1945, 235 Iowa 715. 17 N.W.2d 517

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


        II. WHETHER THE STATES "BUNGLE" IN FAILING TO ADHERE TO THE R.C.P. TIME STRICTURES MITIGATES THE DEFAULT STATUS THUS ATTAINED

        SUMMARY:
        
    No motion for default judgment was filed nor was it ever intended since the nature of this case is for Declaratory Judgment which will either affirm or refute the rights of Article I § 2 a default judgment would have left the question submersed in turbid and muddy waters. A second notice was served upon the Secretary's Attorney after all times contained within the Iowa Rules of Civil Procedure had lapsed and been exceedingly overrun after service of Original Notice. Second Notice: App. pp 18. The State's failure to comply with the Rules of Civil Procedure coupled with the failure to file remedial motions, and in the presence of objection from the plaintiff, irrefutably prohibited the State's use of R.C.P. 88 and also removed the District Court's discretion to accept and rule upon such a motion.

    ARGUMENT:
        
    While default judgment requires Judicial action, the entry into a default status does not. The State was clearly, and abundantly, beyond the times allotted in the Iowa Rules of Civil Procedure 53(a)) which placed them in default status. The State admits that it was in default in the Appellee's proof brief at page 6: "While not filed within twenty days of the date of service of the Petition, the Secretary of State's Motion to Dismiss was filed and served before expiration of the ten-day notice of intent to seek default judgment…"

        R.C.P. Rule 230. Default defined
    . A party shall be in default whenever that party: (a) fails to serve, and within a reasonable time thereafter file, a motion or answer as required in R.C.P. 53 or 54; or (b) withdraws a pleading without permission to replead; or (c) fails to be present for trial; or (d) fails to comply with any order of court; or (e)does any act which permits entry of default under any rule or statute. [Report 1943; Report 1978, effective July 1, 1979; April 30, 1987, effective July 1, 1987; Court Order October 31, 1997, effective January 24, 1998] (emphasis added)

        At the time of the State's filing they were well beyond the window of opportunity to file a motion since R.C.P. 88 times are contingent upon compliance with R.C.P. 53. The time allowed in RCP 53 was eclipsed by the State's 36 day delay in making any filing. Default, like death, does not require official recognition for the status with the accompanying consequences to be attained
    RCP 88(a) reads in part, "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." (emphasis added)

        RCP 53 (a) reads in part," 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." (emphasis added)

        The Plaintiff served and filed a resistance to the Secretary's Motion to dismiss in a timely manner. App. page 21.

         "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

        If the Iowa Rules of Civil Procedure apply only to particular citizens before the bench, members of the bar or not, or classes thereof, then those classifications should be stipulated within the rules; else the rules apply equally to all, as written, as can be reasonably presumed.
    Even sheltered by a "bungle" (Appelees proof brief pp 7) the State was barred from filing their Motion to Dismiss by any or all of the following:
    1. No leave of the District Court to file motion.
    2. No motion for, or ruling, setting aside the default status.
    3. Objection from the Plaintiff while respondent was in default.
    4. Expiration of the time strictures of the Iowa Rules of Civil Procedure rule 53 and rule 88.
    All of these conditions existed to bar the State and the State sought no remedy, singularly or collectively, thus the District Court was improper in granting the States motion.
         The State vacillates between defending against a default judgment, which was never sought or rendered, and acknowledging that a default judgment was never sought (Appellee's proof brief pp. 6 " The Petitioner did not file an application for default judgment."). The State then attempts to shelter its "bungle" under R.C.P. 231 contending that this rule allows for the filing of a motion to dismiss and negates prior time constraints within the R.C.P. This contention is absurd and not germane since no default judgment was ever sought from the District Court and the Attorney General was neither incarcerated or under legal disability.

        
    III. WHETHER THE PLAINTIFF PRESERVED ERROR WHILE NOT FILING FOR AN EXPANDED RULING UNDER 179(b).

    ARGUMENT:

         Rule 179 (b) specifically and unequivocally dismisses the States contention that the seeking of an expanded ruling is a requirement for raising an issue on appeal. Here again, a neophyte pro se must rely upon what is written and effective within the Rules of Civil Procedure, specifically Rule 1, rather than what may be considered common knowledge to members of the State Bar or a pending amendment obscured from view.
        R.C.P. Rule 179(b) On motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly or a different judgment or decree substituted. But a party, on appeal, may challenge the sufficiency of the evidence to sustain any finding without having objected to it by such motion or otherwise. Resistance to such motions and replies may be filed and supporting briefs may be served as provided in R.C.P. 100(d) and (e). amended by Acts 1973 (65 G.A.) ch 316; amended Oct. 31, 1997, effective Jan 24, 1998. (emphasis added)

        A different question under this rule is whether the evidence sustains a fact found by the judge. The last sentence of this rule (now next to last)permits an appeal on that question without raising it in the trial court; and see Beardsley v. Hobbs, 239 Iowa 1332, 34 N.W.2d 916 Iowa Rules of Civil Procedure Annotated Volume 2, third edition, Rules 85 to 106, 504 (correction added)

        The Respondent was fully aware of the arguments against their motion to dismiss, inclusive of the arguments that the delay in making any filing violated the Iowa rules of Civil Procedure and placed them in default. There is no conscionable means for the State to convey to the Court that any arguments within the Plaintiff's brief held any surprise for which they were not prepared or, in any way, would have misled them. (See Appellee's Proof brief page 6)

        Rules of Civil Procedure are to be liberally construed to avoid defeating action because of technical and formal defects which could not reasonably have misled opposing party, and for purpose of promoting speedy determination of litigation upon the merits. Board of Directors of Larrabee Conso. School Dist. V. Cherokee County Bd. Of Ed., 1967, 149 N.W.2d 304, 260 Iowa 210.

        The Iowa Rules of Civil Procedure are patterned in harmony the Federal Rules. Iowa Rules of Civil Procedure 179 echoes Federal Rule 52.

        Federal Rule 52(b) permits the unsuccessful party to raise on appeal the question of the sufficiency of the evidence to support the findings "whether or not the party raising the question has made in the district court an objection to such finding or has made a motion to amend or a motion for judgment" . In other words, when findings of fact are made in a case tried without a jury the sufficiency of evidence to sustain the findings may be challenged without having made "objection to such finding" or "motion to amend them or a motion for judgment". Similarly the rule provides that requests for findings are not necessary for the purposes of review. Lipman v. Arlington Seating Co., C.A.7
    th, 1951, 192 F.2d 93. Rules of Civil Procedure Annotated Volume 2, third edition, Rules 85 to 106, 506 (emphasis added)



        The ruling in a 1999 case cited by the State relied upon a citation from Lawrence v. Grinde, 534 N.W.2d 414, 418 (1995) ( Appellee's proof brief pp 6.) to require a 179 (b) filing to expand the ruling in order to preserve error. While a 1999 case may be too fresh to have the promulgated rules published in the Iowa Rules of Civil Procedure, the 1995 case amply predated the 1998 codicils to have effected a change that could have been published. To disallow the argument on this basis would be akin to imprisonment and fine for the violation of an Act the state legislature is contemplating. If the Iowa R.C.P. carries the force of law then it also must be likewise be restricted in that it is "enacted" and published with an "effective" date before having any possible effect on citizens before the Iowa Courts.

        Rules of Civil Procedure have the force and effect of statutes. Hoosier Cas. Co. of Indian apolis, Ind., v. Fox, D.C.1952, 102 F.Supp. 214; Kutrules v. Suchomel, 1966, 258 Iowa 1206, 141 N.W. 2d 593; Krebs v. Town of Manson, 1964, 256 Iowa 957, 129 N.W.2d 744.


    SUMMARY:

        The States contention that the error was not preserved is without merit when viewed under the proper light of the Iowa Rules of Civil Procedure which "govern the practice and procedure in all courts of the state, except where they expressly provide otherwise"(R.C.P. Rule 1). Rule 179(b) expressly permits that "a party, on appeal, may challenge the sufficiency of the evidence to sustain any finding without having objected to it by such motion or otherwise". The error of the District Courts acceptance and granting of the State's motion to dismiss has been preserved, specifically in the Plaintiffs Resistance to Motion to Dismiss App. pp. 23, and compliance with RCP 179(b) which does not require a filing to sustain the challenge.

        
    IV. THE VESTMENT OF LEGISLATIVE AUTHORITY DOES NOT AND CANNOT ANNULL THE RIGHTS CONTAINED WITHIN THE ARTICLE I "BILL OF RIGHTS", SPECIFICALLY THE ARTICLE I § 2 "RIGHT TO ALTER OR REFORM", WHICH THE STATE REFERS TO AS VOTER INITIATED REFERENDA AND INITIATIVE.

        CONSTITUTIONAL ANALYSIS:

        
    The Iowa Constitution is a clearly worded and deliberately sectioned instrument. Each section is of fading significance to the overall function of government, the single exception being the, subsequent to the Bill of Rights, sequential granting of powers and lesser authority, to the three branches which should be viewed as concurrent endowments of equal significance despite the necessary numbering of the Articles. There is no merit in the argument that the legislative, executive, or judicial endowments in any way obscure the precursory Bill of Rights. In fact, the Article III, IV, and V endowments are placed within the Constitution solely to safeguard the Bill of Rights and to provide "for the protection, security, and the benefit of the people". Reigning over all of the subsequent construction of government is the restriction written into Article I § 2 that the people have the immutable right to alter or reform whatever may follow in the Constitution, or Code, or functioning of government when the people determine the need to do so.
         Explanation of the Plaintiffs conceptualization of the function of Article I § 2 may best be explained with an analogy which compares Iowa Government to a substantial tree with three main branches.
         The roots, which provide the vitality for the entire plant, represent the people of Iowa which draw from the soil within the state boundaries all they require for their Article I § 1 rights.
         The bole of the tree is comprised of vertical elements representing sections of the bill of rights like pieces of a pie, extending from near the ground to support the three large branches. Removing a part or element of the trunk would substantially damage the tree but not fell it.
         However, one element of the bill of rights, Article I § 2, supports the entire structure, horizontally representing the plane where the tree transforms from the roots and soil to the structure of the tree above ground. All elements of life for the tree of government must pass through this layer from the people to the branches, ensuring that the government tree provides for the protection, security and benefit of the people represented by the roots. The entire tree may be toppled and burned but the tree will spring anew from the roots and this transitional layer. While a branch can be pruned with no great effect, or the leaves which represent the various agencies may wither and fall to be reborn the following spring, this layer cannot be destroyed, it's properties are inherent and cannot be removed. However, damage to this layer can destroy the entire tree.
         In other words, if the branch which represents the Legislature were broken off, the people would still have the inherent powers to legislate yet the converse is not true. Without the authority of the people, the legislature is impotent, yet the people are capable of "reforming" the legislature if needed. When a branch or leaf is corrupted by a malady, the people, through this layer, have the right to "alter" that parts input by cutting off nutrients and repealing its "life" or sending the proper messages to amend its workings.
         The small exposure the Plaintiff has had to the Courts rulings upon the Constitution has made it evident that placement within that instrument is almost as predominant a factor as the actual wording. In researching constitutional construction it has become evident that the most cherished and guarded rights and restrictions are placed in decreasing order of importance to ensure that the most primary are also the most protected. Thus it is of no small significance that the legislative authority was placed in the third Article and thirty first Section of the Constitution while the right to "alter or reform" was placed second only to the rights of persons and is irrefutably the second written (See Stewart v. The Board of Supervisors of Polk County) element of the Constitution.
         The vestment of legislative authority is a proscription against infringement by the other branches as the other branches are protected from incursion by their designated vestments. These vestments are simply an amplification of the separation of powers and represent the clothing with, or restriction of, powers, or the lesser "authority" of the legislature, rather than the surrender of inherent rights which cannot be surrendered.

        
    ARGUMENT:
        
    The Respondent focuses the whole of their argument upon Article III § 1 which they contend irrevocably transfers the inherent power to legislate to the General Assembly. This interpretation presents a conundrum which springs from the simple language used in the Constitution: if political power is inherent, or inseparable, in the people, how may it be separated for surrender to the General Assembly? It cannot! Article I § 2 also declares the right of the people to alter or reform any function of government, at any time, without asking the permission of the General Assembly.
         In keeping with the Stewart Court:

    The people, then, have vested the legislative authority , inherent in them, in the general assembly. The people were the original possessors of all legislative authority in the State. By this section they vest it all in the general assembly. Subsequently, in the same instrument , they withdraw some portions of this authority and impose certain limitations and restrictions upon the exercise of the authority granted. It follows, therefore, as a logical sequence, that, within these limitations and restrictions, the legislative power of the general assembly is supreme; that it is bounded only by the limitations written in the constitution. Stewart v. Polk County, 30 Iowa at 18 (emphasis original).

        There is no denying that Article I § 2 is written in the Constitution, however it was not subsequent to the vestment of legislative authority, as the Stewart Court observed. The restrictions and rights of Article I § 2 were guaranteed the people and preceded even the declaration of the separation of powers. This restriction upon what would be constructed and vested with function is superlative to anything which follows in the Constitution or Code of laws derived from it. This element should be viewed as a declaration of exactly where political power springs forth, as a warning to those who would attempt to wrest these powers from the people, and as a concurrent guarantee that the people can reclaim or direct, with no objection by government, the powers which are rightfully delineated as inseparably and inherently theirs.
         The Respondent's contention that the people have retained no powers to direct legislation by their vestment of "all" legislative authority in the General Assembly creates the absurd conflict with Article I § 2 and nullifies the delineation of Political power in order to elevate the granting of powers, and the lesser authority, to the three branches. There can be no interpretation of the States argument that does not conflict with the Constitution of Iowa: under their premise, "the right, at all times, to alter or reform" government does not exist despite its undeniable existence in every Constitution or copy of an Iowa Constitution ever printed.
         The Plaintiff, however, offers an interpretation in complete harmony with the Constitution, the Courts interpretations and the discernible intent of the 1857 constitutional convention.
         Constitutional harmony is achieved by a process where a majority of the electors direct their representatives to conduct a particular action. The direction and subsequent law would be in accordance with all elements of the Constitution and constructed with the sagacity of the General Assembly. There can be no objection to a majority of the electorate directing their elected representatives to mandatory action. It is implausible that a majority of the representatives would not conform with the demands of a majority of those represented; in that instance we have ceased to have the republican form of government guaranteed in the U.S. Constitution. In accordance with the Stewart court: all legislative authority is retained by the Legislature. When Article I § 2 mandates are acted upon, the General assembly is simply acting upon the directly communicated wishes of the electorate whose wishes it is their duty is to comply with in any case.
            The policy of reserving to the people such power as the recall, the         initiative and the referendum is a question for the people themselves in         framing the government or for the Legislature in the creation of         municipal governments. It is not for the courts to decide that question.         We are unable to see from our viewpoint how it can be that a larger         measure of sovereignty committed to the people by this method of         government and a more certain means of securing a proper         representation in any way militates against its character as a         republican form of government and that it is thereby rendered in any         sense obnoxious to the provision of the Constitution of the United         States. Bonner v. Belsterling, 1911, 138 S.W. 571, 104 Tex. 432.

         The Courts rulings of Santo, Geebrick, Weir, Stewart, Eckerson and other citations in the Secretary's Brief are preserved in that "…the general assembly is not authorized to submit to a popular vote the questions as to whether or not a proposed act should become law…" Eckerson v. City of Des Moines, 137 Iowa 452, 483, 115 N.W.177 478. The popular vote would direct the actions of the legislature, it would not effectuate or repeal statutes upon the peoples vote but would mandate the actions of the Legislature. Nor is the legislature enabled to solicit the vote of the people.
         The State comments disparagingly upon the difference between legislative initiated referenda and initiative and voter initiated ballot measures. In fact, there is a chasm of difference between the two.
         Legislative initiated public measures would, and have, effectuated laws that operate with non-uniformity and fail to govern by representation. Denying the Article I § 2 right to alter and reform upon the States contention that the right does not exist infringes upon, annuls and bars Iowa citizens from elements of the Iowa Constitution:
    1. Article I § 2 is completely barred from the citizens of Iowa as if it were not an element of the Iowa Constitution.
    2. Article I § 25 is infringed upon by an unreasonable and incorrect assertion that the rights to initiative and referendum are proscribed by the Iowa Constitution both regarding and disregarding the right to "alter and reform" government which is delineated or declared in Article I § 2.
    3. Article XII § 1 has been infringed upon by the failure of the Legislature to fully enact the Iowa Constitution inclusive of Article I § 2.


         Citizen initiated alteration or reformation, on the other hand, would have state wide application after the Legislature conforms with the wishes of the electors they represent. The Citizen initiated measures have the proper flow to conform with all elements of the Iowa Constitution in the following steps:
    1. Article I § 2 is conformed with by allowing alteration or reformation, at any time, of the statutes comprising government by the people through mandatory direction of their representatives in the General Assembly.
    2. Article I § 25 is conformed with because the Iowa Constitution does not in any sentence or inference proscribe voter initiative and referendum, of the nature proposed or otherwise, thus it is retained by the people, specifically within the Article I § 2 wording "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."(emphasis added)
    3. Article II § 6 is conformed with by a state-wide ballot.
    4. Article III § 1 is conformed with by requiring the Legislature to conform to with the wishes of the electorate. (which they represent) The Legislature is unhindered in statutory construction and legislative process so long as the product of their labors conforms with the mandated wishes of the electorate before they conclude session.
    5. Article XII § 1 is conformed with by having a fully enacted Iowa Constitution.

        
    It is arguable that voter direction upon the Legislature cannot even be construed as "legislating" since no act or bill is introduced by the electorate, only the mandate that the Legislature perform a specific task. However, if the Court would define this as "legislating" there is no conflict with the courts prior rulings in the cases cited by the State and is not without precedent before the Supreme Court of Iowa since it is the people and not the Legislature initiating the ballot.
        Except, however, as thus limited by the two Constitutions, the people have such power to legislate and can confer it upon their state Legislature. Gallarno v. Long 243 N.W. 719

        The process, as asserted by the plaintiff, fully complies with the limitations written in the two Constitutions.
         The argument that Municipal referenda and initiative does not support Statewide alteration and reformation can easily be dismissed as a matter of the Attorney General's failure to comprehend the scale of the issue and the mechanics of the process. Its existence is the proof that initiative a referendum do exist within the government of the State of Iowa and as such must first pass through Article I § 2 prior to the Legislative or Constitutional conference of those functions. However, it was not a conference of function but the lack of restriction within the Code and Constitution which allowed those functions to cities. It is the Plaintiff's premise that those functions are borne of Article I § 2 specifically and of the lack of restriction secondly.

        
    SUMMARY:
        
    The Plaintiff contends that matters requiring alteration or reformation within the government be placed on a statewide ballot. The government of Iowa is a manifestation of the Code of Iowa. Functionaries of governmental agencies will change but those agencies are direct projections of the statutes within the Code. There is no other way for the assertion of Article I § 2 to be effectuated, at any time, other than the direction of the Legislature by imposing the mandatory will of the State electorate upon that body.
         There is no requirement within Article I §2 to get consent from the Legislature or any branch or agency for the assertion of the right to alter or reform. This right is either the final delineated natural right which predominate subsequent declared rights and vestments of the Constitution or the first and thus supreme declared right of the Constitution. All subsequent rights can fall or be invaded until this singular element stands alone and the government can still be resurrected upon the same basis; without this element what would rise from the ashes would doubtless be a different creature.
         In Eckerson v. City of Des Moines, the Court held that duly organized subdivisions had the powers of referendum and initiative because: "There is certainly no provision of our Constitution which expressly, or by reasonable inference, prohibits it." The Plaintiff repeats this, in clarion echo of the court, concerning the right to tell the Legislature what to do, only in this case it is not a lack of provision or inference that bestows the function but the declared "right to alter or reform" eminently within the Iowa Constitution that declares, delineates, and demands that the Court recognize and support, upon the duty of the Judicial branch of government, the Plaintiff's request of Mandamus.
         The State's interpretation of the Constitutional vestments offends against the Constitution itself and cannot be sanctioned by this Court without suspending or revoking the second element of the Bill of Rights Article I § 2. This constitutional opposition violates the first duty of appointed or elected Iowa officials to support the constitution as mandated within Article XI § 5.
        
    THE STATE HAS CONCEDED TO THE PLAINTIFF'S ARGUMENTS
    DEMONSTRATING THE PUBLIC NEED REQUIRING INVOCATION OF ARTICLE I § 2 RIGHTS. THUS, ONCE THE RIGHT TO ALTER OR REFORM CONTAINED WITHIN ARTICLE I § 2 ARE RECOGNIZED, THERE IS NO FURTHER OBSTACLE FOR THE COURT TO OVERCOME IN ISSUING THE REQUESTED WRIT OF MANDAMUS UPON THE SECRETARY OF STATE.

        
    Since the state has conceded to the arguments used to qualify the public need to alter or reform, all that need be demonstrated is that Article I § 2 exists and contains the "right to alter or reform" government. The State, in supporting their motion to dismiss, has abandoned all rights to argue against the contentions of the Plaintiff's brief which demonstrate the public need. It would be preposterous for the State to both concede and then to dispute those arguments, thus the Court is unimpeded in alleviating the wrongs outlined.

        
    Conclusion:
    For the reasons contained within this brief and within prior filings, the Appellant prays the Court rule in their favor and issue the sought writ of mandamus upon the Secretary of State.

    Respectfully Submitted,
                                                    John F. Anderson, Pro Se

                                                    _________________________________
                                    
                                                    John F. Anderson
                                                    4491 SE 40
    th
                                                    Des Moines, Iowa 50320
                                            515-266-5348 Home, 515-557-7988 work


    Copy to:         Attorney General of Iowa
                    Hoover Building 2
    nd Floor
                    Des Moines Iowa 50319
                    Attorneys for the Respondent.






    Certificate of Service

    The undersigned certifies that Two copies the foregoing Appellent's Reply Brief was served upon the Secretary of State by personal service to the Attorney Generals office of the State of Iowa.

                                            ___________________________________
                                             John F. Anderson December 1, 1999


    Certificate of Service
    The undersigned certifies that Two copies the foregoing Appendix served upon the Secretary of State by personal service to the Attorney Generals office of the State of Iowa.

                                            ___________________________________
                                             John F. Anderson December 1, 1999