Cases

Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs., 613 N.W.2d 674...... 14

Anderson v. City Development Board 2001 Iowa Sup. LEXIS 73...... passim

Bagley v. Rogerson, 5 F.3d 325...... 24

Barnes, 385N.W.2d at 264...... 28

Berger v. Iowa Finance Authority, 593 N.W.2d 138...... 19

Campbell v. Iowa Beer & Liquor Control Dept. , 366 N.W. 2d 574...... 13

Cedar Memeorial Park Cemetary Ass’n v. Personnel Associates, Inc., 178 N.W.2d 343...... 22

Chicago, R.I. & P. Ry. Co. v. Streepy 224 N.W. 41...... 31

Chicago, R.I. & P. Ry. Co. v. Streepy, 224N.W. 41...... 7

City of Anderson v. Associated Furniture & Appliances, Inc., 423 N.E.2d 293...... 22

City of Cedar Falls v. Flett, 330 N.W.2d 251...... 35

City of Cedar Rapids v. Municipal Fire & Police Retirement Sys., 526 N.W.2d 284...... 32

City of Clinton v. Owners of Property, etc. 191 N.W.2d 671...... 6, 11, 27

City of Lenexa v. City of Olathe, 660 P2d 1368...... 22

City of Monticello v. Adams, 200 N.W.2d 522...... 20

Clark v. Brewer 776 F2d 226...... 24

Clive v. Colby 121 N.W.2d 115...... 23

DeCoster v. Franklin County 497 N.W.2d 849...... 2, 10, 33

Des Moines Register and Tribune Co. v. Dwyer, 542 N.W.2d 491...... 34

Des Moines v. City Development Bd. 473 N.W.2d 197...... 20

Dolezal v. Bockes, 602 N.W. 2d 348...... 12

Eckerson v. City of Des Moines, 115 N.W. 177...... 2, 31

Emery v. Fenton 266 N.W.2d 6...... 23

Everds Brothers v. Gillespie 126 N.W.2d...... 5

Exira Community School Dist. V. State 512 N.W.2d 787...... 23, 35

Fencl v. City of harpers Ferry 620 N.W.2d 808...... 13

Fisher v. Chickasaw County, 553 N.W.2d 331...... 22

Gorman v. City Dev. Bd. , 565 N.W.2d 607...... 7, 8, 27, 29

Gorman v. City Development Bd. 565 N.W.2d 607...... 11, 29

Helmers v. Altruck Freight Systems 436 N.W.2d 39...... 10, 11

Holding v. Franklin county Zoning Bd. of Adjustment, 565 N.W.2d 318...... 13

Hunter v. city of Des Moines 300 N.W.2d 121 (Iowa 981)...... 13, 15, 17

Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151...... 20

Hutchins v. City of Des Moines 157 N.W. 881...... 3, 35

In Interest of C.S., 516 N.W.2d 851...... 32

In re Lehahan’s Estate, 46 N.W.2d 352...... 15

In re Ramsay’s Estate, 35 N.W.2d 651...... 16

Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. V. Mobil Oil Corp., 606 N.W.2d 367 21, 23, 34, 35

Keefner v. Porter, 293 N.W.501...... 26

Kelly v. Brewer 239 N.W.2d 109...... 23

Knowles v. Iowa Dep’t of Transp., 394 N.W.2d 342...... 28

Knudson v. Linstrum 8 N.W. 2d 495...... 26

Koch v. Kostichek 409 N.W.2d 680...... 26

Kunkel v. Eastern Iowa light & Power Cooperative 5 N.W.2d 899...... 16

Lacina v. Maxwell, 501 N.W.2d 531...... 21

Marbury v. Madison, 1 Cranch, 163, 2 L.Ed. 60...... 26

Matter of Bishop, 346 N.W.2d 500...... 28

Miller v. Farmers Coop 176 N.W.2d 832...... 11

Miller v. Warren Cty. 285N.W.2d 190...... 23

Miranda v. State of Arizona 86 S.Ct. 1602 (1966)...... 3

Mitchell v. Moore, 13 So2d 314 (Fla)...... 8

Morford v. Unger (Iowa 1859)...... 29

Oldham v. Chandler -Halford, 877 F.Supp. 1340...... 24

Patterson v. Iowa Bonus Board 71 N.W. 1...... 2, 20, 31

Patton v. municipal Fire & Police retirement systems of Iowa 587 N.W.2d 480...... 23

Penn v. Iowa State Board of Regents 577 N.W.2d 393...... 12, 16

Puerto Rico v. Branstad 107 SCt. 2802, 483 U.S. 219, 97 L.Ed.2d 187...... 35

Riggs v. Moise, 128 S.W.2d 632...... 15

Secrest v. Galloway Co., 30 N.W.2d 793...... 15

Sicard v. City of Sioux City,. 950 F. Supp. 1420...... 3

Siegel v. Chicago, R.I. & P. Ry. Co., 208 N.W. 78...... 31

Sisco v. Iowa-Illinois Gas and Elec. Co., 368 N.W.2d 853...... 12

Smith v. Thompson, 258 N.W. 190...... 3, 33, 34

Sperry & Hutchinson Co. v. Hoegh, 65 N.W.2d 410...... 20

Stange v. City of Dubuque, 17 N.W. 518...... 24, 33

State Ex Rel Schuder v. Schuder 578 N.W.2d 685...... 23

State ex rel. Klise v. Town of Riverdale, 1953 57 N.W.2d63...... 31

State ex rel. Miller v. Santa Rosa Sales & Mktg., Inc., 475 N.W.2d 210...... 21

State ex rel. Turner v. Iowa State Highway Commission, 186 N.W.2d 141...... 34

State v. Bell, 572 N.W.2d 910...... 28

State v. Ceron, 573 N.W.2d 587...... 21

State v. Countryman, 572 N.W.2d 553...... 20

State v. Izzolena 609 N.W.2d 541...... 3, 18, 20

State v. James 393 N.W.2d 465...... 31

State v. Kramer 235 N.W.2d 114...... 29

State v. Osborne 154 N.W, 294...... 25

State v. Osborne et al. 154 N.W. 294...... 6

State v. Perry, 69 N.W.2d...... 22

State v. Seager, 571 N.W.2d 204...... 14

Stephenson v. Furnas Elec. Co., 522 N.W.2d 828...... 3

Straton v. Hodgkins, 155 S.E. 902...... 8

Town of Grimes v. Adel Clay Products Co. 126 N.W.2d 270...... 5

Town of McGregor v. Baylies 19 Iowa 43...... 26

Tucker v. U.S., C.A.Iowa, 375 F.2d 363,...... 38

U.S. v. Maxwell, 278 F.2d 206...... 29

Urbanizadora Versalles, Inc. v Fivera Rios, 701 F.2d 993...... 30

Statutes

§13.2...... 39

§17A.12...... 14

§17A.14...... 14

§17A.17...... 38

§17A.19...... passim

§352.1...... 27

§368.11...... passim

§368.17...... 30

§368.22...... passim

§368.4...... passim

§368.6...... passim

§368.7...... 21, 26

§368.8...... 21

§4.1...... 7, 10

§4.10...... 24

§4.6...... 24

Other Authorities

. American Heritage College Dictionary Third Edition...... 9

16A C.J.S. Const §448...... 4

16A C.J.S. Const. Law §506...... 4

16B Am Jur 2d Constitutional Law §588...... 32

1978 SF 2221...... 10

1998 Acts, ch 1202, §§40, 46...... 12

Friday February 13th 1857 Iowa Constitutional Debates on Judiciary. Page 478...... 36

HF 474- 1972...... 24

Iowa ACTS of 1978 chapter 1127...... 10

Iowa Code of Professional Responsibility for Lawyers EC 7-14...... 20, 39

Iowa rules of civil procedure rule 261...... 3, 15, 16

Iowa rules of civil procedure rule 262...... 3, 15

Iowa rules of civil procedure rule 263...... 15

Iowa rules of civil procedure rule 266...... 3

Supreme Court Rule 8.2...... 18

Constitutional Provisions

Art. I §1...... 5, 25

Art. I §20...... 3, 5

Art. I §6...... 27

Art. I §9...... 5, 25, 30

Art. III §1...... 37, 40

Art. III §29...... 27, 32

Art. III §30...... passim

U.S.Constitution Amen I...... 3

U.S.Constitution Amen IV...... 3

U.S.Constitution Amen IX...... 3

U.S.Constitution Amen V...... 3, 15

U.S.Constitution Amen XIV...... 15

U.S.Constitution Amen XIV...... 3

1

I. The cities failed to comply with statutory requirements and imposed duties of §368.4 in 1990 thus voiding the attempted moratorium agreement. The CDB and Courts cannot enforce an otherwise void agreement which failed to establish subject matter jurisdiction.

Facts of case:

1. The City Development Board (henceforth CDB) is an executive branch agency created by §368.9 of the Iowa Code.

2. The Attorney General (henceforth AG) is a judicial branch entity created charged with the exercise of powers of that branch by Article V § 12 of the Iowa Constitution.

3. In June and July of 1990, the cities of Des Moines and Carlisle attempted to execute a moratorium agreement pursuant to §368.4 of the Iowa Code.

4. The starting point, (which did not exist in fact until 1995 or later), of the statutorily mandated description of specific territory in that agreement read in pertinent part: “Commencing at the intersection of the center line of the proposed future Relocated Iowa Highway 65 and the south bank of the Des Moines River;”

5. The “map” of the agreement had no basis in fact when it was drawn due to an non-existent arbitrarily selected starting point.

6. There was no service of notice upon the CDB by either city.

7. In April of 1998, Des Moines initiated involuntary annexation proceedings which included the appellees home and property which was dismissed due to insufficient notice upon all affected property owners.

8. The CDB upon AG’s argument declared the agreement as valid due to substantial compliance and declared that a § 368.7 voluntary annexation to the city of Carlisle by the appellant and his neighbors would be thus barred in May of 1998.

9. On July 14, 1998 the CDB, based upon the AG’s advice ruled that a §368.11 involuntary annexation by the appellant and his neighbors representing more than 5% of the electors was barred by the agreement.

10. On August 19,1998 the CDB refused to rehear the involuntary annexation by the appellant and his neighbors, again upon the advice of the AG and upon the basis of the agreement.

11.

I. The cities failed to comply with statutory requirements and imposed duties of §368.4 in 1990 thus voiding the attempted moratorium agreement. The CDB and Courts cannot enforce an otherwise void agreement which failed to establish subject matter jurisdiction or in the alternative, where jurisdiction was legislatively removed.

Scope and Standard of review

[Supreme Court] must determine the affirmative showing solely on the present circumstances as shown in the record, not an a showing based on what may or may not take place in the future. That is speculation. Town of Grimes v. Adel Clay Products Co. 126 N.W.2d 270 (Iowa 1964)

When the case is tried in equity, our review is de novo. DeCoster v. Franklin County 497 N.W.2d 849 (Iowa 1993).

Preliminary power of interpretation of statutes is in agency, but final power of interpretation is in courts. Sicard v. City of Sioux City,. 950 F. Supp. 1420. Administrative agency cannot act unconstitutionally, in violation of statutory mandate or without substantial support in record I.C.A. 17A.19 subd. 8 Stephenson v. Furnas Elec. Co., 522 N.W.2d 828

“Where rights secured by Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda v. State of Arizona 86 S.Ct. 1602 (1966)

ARGUMENT:

Municipal contract made in violation of mandatory statute is not merely voidable but void. Everds Brothers v. Gillespie 126 N.W.2d (Iowa 1964)

The plaintiff’s request for declaratory ruling by invoking original jurisdiction of Court on constitutional basis is protected by Iowa Constitution Art. I § § 1, 6, 9, 20 and 25, the U.S. Constitution Amendments I, IV, V, IX, XIV, and Iowa rules of civil procedure rule 261, 262, 266. The Rules of civil procedure and the Code of Iowa cannot abrogate those protections. “Constitutional rights cannot be made dependent on the favor of the court, but may be asserted as a matter of right; and in the matter of safeguarding these constitutional rights the court looks to the substance, rather than the technical forms of procedure taken to invoke the protection of law.” 16A C.J.S. Const §448 (emphasis added). “The right of private property is a fundamental, sacred, natural, inherent, and inalienable right, the protection of which is one of the most important purposes of government…”, “ A person has the right to be free from unauthorized actions of governmentofficials which substantially impair his property interests,...” 16A C.J.S. Const. Law §506 (emphasis added).

The district courts ruling at page 5 states “Clearly, in order for Plaintiff to prevail on the issue of abuse of discretion, he must establish that the agreement is, in fact, invalid”. However the court created a paradox by dismissing upon preclusion grounds and denying any opportunity to prove the invalidity of the agreement, first upon the basis of judicial review restrictions and now by preclusion upon the grounds of, Anderson v. City Development Board 2001 Iowa Sup. LEXIS 73 (henceforth: Anderson v. CDB), and the coordinate restriction of issues . In other words, because the plaintiff was unaware of the fraud being perpetrated by the CDB and AG and did not question each instance of failure “on the record” there was not, and will never be, any opportunity to petition for a redress of grievance. This is clearly an abrogation of Art. I §§ 1, 2, 9, 20 of the Iowa Constitution among others.

It is only with serious caution that fraud is claimed. Though apparently prudent and deliberative as a norm, too liberal an application of “substantial compliance” without first submitting the facts to any test to achieve that level has moved this particular validation by the CDB and AG into the realm of fraudulent. In the absence of minimal compliance with §368.4 the “substantial compliance” claims of the CDB and AG can be cast as nothing else but fraud and abuse of discretion.

The Anderson v. CDBCourt and the Defendant’s erred in viewing the moratorium from1998 instead of under circumstances that existed at the time of execution in 1990. The speculative wording fatally taints the annexing moratorium; both resolutions, both published notices and all prefatory paperwork.

Failure to comply with any statutory requirement invalidates the attempted Des Moines Carlisle §368.4 moratorium

In §368.4 the cities failed to comply with the 6 legislative mandates contacted. Those requirements are underlined below in the partitioned statute with discussion of the failures following:

1. “A city, following notice and hearing, may by resolution agree with another city or cities to refrain from annexingspecifically described territory for a period not to exceed ten years and, following notice and hearing, may by resolution extend the agreement for subsequent periods not to exceed ten years each.

2. Notice of a hearing shall be served on the board, and a copy of the agreement and a copy of any resolution extending an agreementshall be filed with the board within thirty days of enactment.

3. If such an agreement is in force, the board shall dismiss a petition or plan which violates the terms of the agreement.

1. “Following notice and hearing” “Due process of law does not necessarily mean judicial proceedings in all cases, but it never means less than some prescribed course of legal proceeding in which the person adversely affected shall have an opportunity to be heard and to resist if he be so advised.” State v. Osborne et al. 154 N.W. 294(emphasis added) Notice and hearings were insufficient since all descriptions and maps are speculative and without factual basis. “The description will be sufficiently certain when from it the property can be identified either by a person who is familiar with the locality or by an actual survey.” City of Clinton v. Owners of Property, etc. 191 N.W.2d 671 at 674 No person in 1990, including a whimsical cartographer could determine where the intersection of highway and river would be other than at SE 14th street. “[I]t is of central importance to the entire annexation proceedings that the legal description of the area to be annexed be sufficient to identify the affected property…” Gorman v. City Dev. Bd. , 565 N.W.2d 607, 611 “Clearly this requirement of published notice implies a requirement that the territory be legally described” (Id.) “Thus, there was not proper notice to the public and other potentially interested parties of what property was intended to be annexed.” (Id.) It is absurd to contend that incoherent published notice, describing nothing in 1990, can “substantially comply” with notice or hearing requirements or provide a basis for a moratorium agreement. Claims of substantial compliance are fraudulent

2. “May by resolution agree”: This power (§4.1 (30)c) and mode of execution are edicts. The city’s resolutions do not agree upon simple compass directions from an indeterminate “line of demarcation” (discussed below). The legislature mandated that §368.4 resolutions agree. It is only by guessing which resolution is correct ( was it Des Moines’… or was it Carlisle’s…) and which notice was correct (was it Carlisle’s… or was it Des Moines’…) in cross combination that a person could try to determine what, if anything, was agreed upon; in fact, nothing is “described” or agreed upon by resolution or otherwise as outlined below. Resolutions which do not agree, do not minimally comply with §368.4, only enactment by resolution carries the weight of law under §368.4. Claims of substantial compliance are fraudulent.

3. “To refrain from annexing”: in order to be consonant with the statutory title a §368.4 agreement cannot declare “Des Moines will annex this side and Carlisle will annex that side” as it does in the “moratoriums” prefatory documentation and Des Moines’ (or was it Carlisles’) resolution. “There can be no incongruity between statute and its title, which must suggest matters covered thereby. Chicago, R.I. & P. Ry. Co. v. Streepy, 224 N.W. 41(Iowa1929) This “moratorium” does not agree to “refrain from annexing,” it stipulates annexation of everything in violation of Art. III §30 and in paragraph “4” of the prefatory paperwork to directly interfere with the rural citizens rights and privileges, neither of which complies with §368.4. Claims of substantial compliance are fraudulent.

4. “Specifically described territory”: the Legislature requires more than a speculative description of single boundless line, or a speculative line that may, or may not, someday exist. There are no references to points or boundaries that existed in 1990 to allow use of a deed, map, plat, survey, or any description susceptible of being aided by testimony to ascertain what property is affected.

“”Specifically” means in a specific manner; explicitly, particularly and definitely.” Straton v. Hodgkins, 155 S.E. 902. “The purpose of a “description” is to afford the means to identify the land conveyed. Mitchell v. Moore, 13 So2d 314, 317 (Fla.) The city’s “line” is so absurd that it is the antithesis of compliance; it identifies nothing in contravention of the legislature’s requirement, the Defendants claim that an insubstantial line “substantially complied” with legislature mandate. The plaintiff, any dictionary, Euclidean Geometry, and every treatise on surveying disagree with that absurd assertion. “If a small error causes significant problems, the statutory requirements are not satisfied.” Gorman v. City Development Bd. 565 N.W.2d 607, 610 (Iowa 1997)

Territory 1 an area of land; a region. American Heritage College Dictionary Third Edition (emphasis added)

Area n 1. A roughly bounded part of a surface; a region. 6. The extent of a planar region or the surface of a solid measured in square units. American Heritage College Dictionary Third Edition (emphasis added)

Specific adj. 1 Explicitly set forth; definite 3. Special, distinctive, or unique. American Heritage College Dictionary Third Edition

Ambiguous adj. 1. Open to more than one interpretation: an ambiguous reply. 2 Doubful or uncertain. Syns: ambiguous, equiocal, obscure, recondite, abtruse, vague, cryptic, enigmatic. American Heritage College Dictionary Third Edition

In Anderson v. CDB the court declares “the moratorium agreement itself did provide a somewhat ambiguous description of the land in question. However, when combined with the maps provided…”(emphasis added). Here even the Supreme Court is fallaciously and capriciously using “substantial compliance” to contravene the specific wording of §368.4 and ignoring the fact that no legitimate map could be rendered in 1990. Ambiguous and specifically are antonyms.

There is no specification of whether the area of moratorium is the “line of demarcation”, which has no area, or 6 inches or 60 miles distant from the “line”. The moratorium does not generally infer territory let alone “specifically describe” it as statutorily required. In 1990 all “descriptions” identified the moratorium area as follows:

“line of demarcation to be located as follows: commencing at the intersection of the center line of the proposed future relocated Iowa Highway 65 and the south bank of the Des Moines River; thence southwesterly and southerly along the center line of said relocated highway 65...” (emphasis added).

It is absurd to claim this description which fails to hint at breadth or depth or definition of territory represents “specifically described territory” or even minimally complies with the statutory requirement of §368.4 thus claims of compliance are fraudulent.

5. Notice of a hearing shall be served on the board: The legislature mandated that the CDB be served with notice of a §368.4 hearing, imposing it not as a requirement but as a duty pursuant to §4.1 (30)a. Iowa ACTS of 1978 chapter 1127 added this sentence and the legislative notes of this act, 1978 SF 2221, states in pertinent part, the purpose of the enactment as: “ An act relating to city development…, requiring the city development board to be notified of annexation moratorium agreementsand hearings …” (emphasis added).

§368.4 requires notice upon the CDB before a moratorium attains minimal compliance. Subject matter jurisdiction over the Des Moines Carlisle §368.4 moratorium was not established by cities and this fatal defect cannot be cured “ex post facto” by the CDB, or the Courts since it is a void nullity. Neither city filed notice before or after the hearings. A complete lack of compliance cannot undergo a metamorphosis into “Substantial compliance” thus such claims are fraudulent.

6. “A copy of the agreement and a copy of any resolution extending an agreement shall be filed with the board within thirty days of enactment.”: There is no CDB date of filing indicated by either city. The CDB and this court routinely dismiss filings that are not timely but here an unknown time of 8 months or 8 years is ignored. Claims of compliance are fraudulent.

Summation

At great harm to the rights of the appellant and his neighbors, both the CDB and AG claim “substantial compliance” when not one contacted requirement or duty of §368.4 has been met, clearly making those claims fraudulent. These claims are an obscene distortion of the ruling : “failure to comply with every word of our annexation statutes is not fatal. Substantial compliance with prescribed procedural law is sufficient….” City of Des Moines v. City Dev. Bd., 473 N.W.2d 197 (Iowa 1991) Clearly no compliance and contravention of nearly “every word” of §368.4 must be fatal! The description was nonsensical which made the published notice, hearings, and resolutions void in addition to the failure of both cities to serve notice upon the CDB: NOT ONE REQUIREMENT WAS COMPLIED WITH.

The cities have a cadre of attorneys, all of whom should be able to execute an agreement conforming to two sentences of a statute. No lack of legal authority exists to excuse less than complete compliance. If ignorance of law is no excuse for a citizen, then the city’s attorneys have no shelter for failing to comply with the wording, the spirit and the notion of the statute. In 1990 there was absolutely no compliance with §368.4 which would allow the CDB to declare the agreement valid in 1998. To contend otherwise ignores all evidence within the record of the CDB.