IN THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY


John Francis Anderson,                                      )
Mayor Pro Tem of the Territory                         )
of West Carlisle,                                                )         CL 79454
Polk County, Iowa                                             )
48                                                                     )
                                                                        )
Petitioner,                                                          ) Resistance to Motion
                                                                        ) to dismiss
vs.                                                                    )        
                                                                        )
                                                                        )
The Secretary of State                                        )
of the State of Iowa                                           )
                                                                        )
Respondent.                                                      )
                        

COMES NOW the petitioner, pro se, in resistance to the Respondents motion to dismiss.

I.         Introduction.


         The Respondent has apparently misconstrued the substance of the Petitioners arguments supporting the petition for Declaratory Judgment. The Question is not what the peoples representatives in the General Assembly can ask the people to do, but what and how can the people tell their representatives in the General assembly to do.

        The Respondent's attorney was served on April 13, 1999 and was quoted in the April 14, 1999 Des Moines Register regarding the petition, thus officially receiving and publicly acknowledging the Petitioners petition.

        The Respondent has not served or filed an answer or motion to the petition for Declaratory Judgment within the 20 day time allotted on the original notice thus not complying with Iowa RCP 53.

        The Respondent has erroneously cited the following cases as grounds for dismissal, incorrectly claiming that any binding initiative or referendum upon the Legislature by the State electorate is barred by the Courts rulings upon them:
1.         Stewart v. Bd. of Supvsrs of Polk County, 30, Iowa 9, 18 (1870).
2.         Santo v. State, 2 Iowa 165, 202-204 (1855). Localized vote
3.         City of Clinton v. Sheridan, 530 N.W.2d 690, 693 (Iowa 1995). Mun i/r
4.         Ekerson v. City of Des Moines, 137 Iowa, 115 N.W. 177, 187(1908) Mun i/r
5.         State v. Geebrick, 5 Iowa 491, 493-95 (1958) localized vote
6.         State v. Weir, 33 Iowa 134 (1871) localized vote
7.         State v Forkner 94 Iowa 733, 62 N.W. 683 (1895)localized vote

The rulings in these cases fall upon issues of two separate categories, neither of which address the claims of the Petitioners petition: 1. That the State Legislature may not pass an act that is enacted or repealed dependent upon the localized vote of a political subdivision of the State. 2. That the powers of referendum and initiative are not proscribed from political subdivisions of the State. The Respondent has completely missed the true nature of the Petitioners pleading and the courts decisions by claiming: "The Iowa court has repeatedly and consistently held that the people have no power to make laws of state-wide application and has rejected attempts by the legislature to obtain voter approval of proposed legislation, holding that the legislative power constitutionally vested in the General Assembly may not be delegated back to the people. C.f. Santo v. State, 2 Iowa 165, 202-204 (1855) ."

        The Santo Court did not, nor has any other Court cited, rule as the Attorney General claims out of context, that the people have not reserved unto themselves the right to basically tell the Legislature what to do. The courts did, however, rule that the Legislature is proscribed from soliciting voter approval which would enact or repeal a law upon the vote of electors within otherwise equal political subdivisions of the State. These cases deal with what the Legislature can ask, not what the citizens using their Article I, section 2 rights can demand or direct the Legislature to do. In fact, each of these cases, with the exception of Forkner, is cited by the Petitioner as supporting the claims contained in the petition and they cannot both support and erode those claims. Clearly there is no precedent for the question at hand. The Respondent claims precedent due to misconstruing the arguments of the Petitioner or the rulings of the Courts when there is only false precedent in the abbreviated annotations when they are read out of context from the cases ruled upon.

        Furthermore, the Respondent claims:" The Petitioners claim for relief is based upon his assertion that the Iowa Constitution provides to the citizens of this state the right to legislate at any time." which is erroneous; the Petitioner asserts that: the people have reserved to themselves the right to direct the alteration or reformation of statutes by the Legislature when the public good requires it, at any time, in Article I section 2.

        The relief sought by the Petitioner is: 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. Even though included as a footnote, the Attorney General should be fully aware that the Secretary of State may also utilize Iowa code § 39.2(1997) to initiate the publications and procedures to validate the resultant ballot.

II.         REASONS TO DENY THE RESPONDENTS MOTION TO DISMISS DUE TO NON-COMPLIANCE WITH THE IOWA RULES OF CIVIL PROCEDURE

        RCP88(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." 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." Since the Respondent delayed any reply until a full 36 days had lapsed, they have forfeited any claim based upon RCP 88(a). In fact the only motion for judgment at this time is available solely to the Petitioner and that is a motion for judgment by default.

        The Respondent's motion for dismissal must be denied due to its unwarrantable dilatory nature which is in violation of the Iowa Rules of Civil Procedure.

III.         REPRISAL OF FACTS UPON WHICH RELIEF IS SOUGHT PERTAINING TO THE LEGISLATIVE POWER OF THE PEOPLE.

        Article I section 2 of the Iowa Constitution declares that the source of all political power is "the people" and to ensure that it was understood to be inseparable from "the people", it was declared an "inherent" power. The American Heritage Dictionary, third edition, defines "inherent" as :adj. Existing as an essential constituent or characteristic; intrinsic…." The drafters of our Constitution, to ensure that subsequent functional elements of government could have absolutely no doubt that the powers were retained by the people, took the additional measure of restricting any subsequent delineation or parsing of political endowment in the Iowa Constitution with the phrase: "and they have the right, at all times, to alter or reform the same, whenever the public good may require it." One of the constitutional drafters, Mr. Traer, spoke to the issue of the Petitioners claim most clearly:
" 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. …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." Constitutional debates of Thursday February 19th, 1857.(underlining added).

        Referendum and initiative adopted the political meanings ascribed them today during the 1890s as a platform issue of the Populist Party. Prior to that time, at the drafting of our Constitution, the ideology of referenda and initiative may have been most likely called reformation or alteration and the act of doing so would have been "to alter or reform".

        The powers to govern are conferred upon the United States by the States (the people not the government), and the State governmental powers are inferred from the rights of the people. At the instant of cognizance of political power in the Iowa Constitution, the people saw fit to restrict all subsequent derivations of government by reserving to themselves the right to alter or reform, at any time, whatever may come afterwards. There is no agency appointed or inferred to oversee the exercise of this right and it falls under the review of only the people themselves with no set threshold for the assertion of this right other than the public good requiring it. Hence the two sections contained in the Petitioner's petition to demonstrate that need. There is no other way to determine the will of the people on matters of the public good, especially if their representatives efforts are barred by a process of government not contained within the constitution or even the Code of Iowa, at any time, other than by ballot. The people cannot be held silent by the government created from them because they had the forethought to restrict their creation from doing so, before ever putting pen to paper in its instrumentation.

        Thus the crux of the Petitioners claim is reached by asking how else, other than initiative and referenda, are the people to exercise their constitutional right to alter or reform, at any time, the statutes that comprise Iowa government? To paraphrase the Stewart Court how can the people assert this most primary of "limitations written in the constitution" as Article I section 2? This reservation of power was dictated in the Constitution long before the subsequent creation of the three branches and was closely guarded by the endowment of legislative authority rather than the power granted to the other two branches. To use the interpretation of "vesting" that the Attorney General is using would require an absolute and unconditional surrendering of legislative power, and that has clearly not been done. The vesting of legislative authority, when viewed under the light of the 1857 constitutional debates and subsequent Courts interpretations would be more properly cast as a settlement, rather than a grant of authority because the people have reserved, to themselves, the right to alter or reform the statutes comprising government, at any time. What is sought by the Petitioner, acting as the elected representative of the electorate of the Territory of West Carlisle, is an alteration or reformation of Chapter 368 of the Code of Iowa, which is an insufferable piece of legislation to come under the influence of as the State Government is currently applying it. West Carlisle has endured all of the allegations contained in the petition to demonstrate the public need for change, at no small cost or effort on their part and their efforts have been deemed valid by the Iowa Courts by ruling in their favor in AA3155 in Polk County District Court. Article I section 2 prohibits the barring of the peoples efforts to change government, the Legislature has simply failed to fully enact the Constitution thus depriving them of regulatory procedure which they will surely enact at the next session in reaction to a successful assertion of these rights by the Petitioners.

        The endowment of authority rather than power upon the Legislature should be viewed as an extra reservation or restriction of power written in the Constitution in addition to Article I section 2 and what the Petitioner asserts does not offend against that "vesting" since the actual action upon the righteous direction of the electorate must still be accomplished by the Legislature. Thus the Petitioner does not seek the power to legislate for the people, which they have none the less retained, only to define the actions desired by the citizenry, and guarantee that the commands of the electorate be attended to by the Legislature.

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

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 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.

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

        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

        The Legislature has dispossessed the people of the powers that they have reserved unto and within themselves in Article 1 section 2 before any delegation of political duty to any of the three branches. This has been perpetrated upon the people by barring citizens from exercising their fundamental and inherent powers through failure or neglect to facilitate the exercise of those rights. This failure, on the part of the Legislature, does not deprive the people of those rights, it does however require petitioning the courts for relief in order exercise them.

IV.         REPRISAL OF FACT THAT THE RIGHTS OF INITIATIVE AND
         REFERENDA ARE AFFIRMED BY THE COURTS FOR ALL IOWANS.

        The courts, in Clinton v. Sheridan,530 N.W. 2d, 694, ruled that: " If the general assembly intended to preempt municipal initiative and referendum powers, it could have done so by express and unambiguous statutory language." This contention would also hold for the drafters of the Constitution who were unencumbered in their efforts to design the instrumentation of Iowa government. In fact, if viewed in historic perspective and colloquial usage, the Constitutional drafters may have fully intended to impart those functions in Article I section 2.        The Courts have upheld initiative and referendum as applied by municipalities in Eckerson v. City of Des Moines and in City of Clinton v. Sheridan. Furthermore, the Legislature may not confer a function it does not first possess, and all legislative functions, and in fact all "political power", is derived from the inherent rights of the people. Municipal corporations can enact the functions of initiative and referendum, the primary function of the legislature is initiative and referendum, thus the people have the rightful powers, not function or authority, of initiative and referendum which serves as the source of the ensuing functions possessed by the derived political subdivisions. The courts affirmed this position in Eckerson v. City of Des Moines, page 464, 137 Iowa (1908), "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."

Conclusion:

        The State has forfeited any right to file this motion by non-compliance with the Iowa Rules of Civil procedure, delaying any answer or motion by almost twice the allotted time stipulated in RCP53(a). Thus the Respondents Motion to Dismiss must be denied.

        The Motion to dismiss must be denied because the State has failed to cite any germane precedent or to even correctly address the nature of the Petitioners claims. Furthermore, the Petitioner has cited germane rulings of the Court and Constitutional debates supporting the petitions positions thus there is a clear and evident state of facts supporting the plea for the relief sought in the petition. Thus there is no basis for dismissal under Iowa RCP 88(a)(6) and the Motion to Dismiss must be denied.

        Wherefore, John F. Anderson Mayor Pro Tem of the Territory of West Carlisle Polk County, Iowa prays the court deny the Respondents Motion to Dismiss.

____________________________
John F. Anderson
Mayor Pro Tem
4491 SE 40th Street
Des Moines, Iowa 50320-9601
Tel: 515-266-5348


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