Michael Joseph Berent, Michael Steven Romp, Jeff Wayne Thorne, Paul Bryson Ingram, Nichelle Aline Thompson, Rodney Edward Sullivan, Sara Lillis Epstein, Sara Crane Swisher, Bette Jayne Mayes, Caroline M. Dieterle, Matt Blizek, Mori Constantino, Amanda Coyne, Lolly Eggers, Ellen Haywood, Jon Klinkowitz, Karen Kubby, Bob Thompson, James Walters, Roberta Till Retz And Jennie Louise Embree

• Court: Supreme Court of Iowa
• Decided: August 31, 2007
• Docket: 46 / 06-1382
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 46 / 06-1382

Filed August 31, 2007

MICHAEL JOSEPH BERENT, MICHAEL STEVEN ROMP, JEFF WAYNE THORNE, PAUL BRYSON INGRAM, NICHELLE ALINE THOMPSON, RODNEY EDWARD SULLIVAN, SARA LILLIS EPSTEIN, SARA CRANE SWISHER, BETTE JAYNE MAYES, CAROLINE M. DIETERLE, MATT BLIZEK, MORI CONSTANTINO, AMANDA COYNE, LOLLY EGGERS, ELLEN HAYWOOD, JON KLINKOWITZ, KAREN KUBBY, BOB THOMPSON, JAMES WALTERS, ROBERTA TILL RETZ and JENNIE LOUISE EMBREE,

Appellees,

vs.

CITY OF IOWA CITY and “OBJECTIONS COMMITTEE” OF IOWA CITY,

Appellants.

Appeal from the Iowa District Court for Johnson County, William L.

Thomas, Judge.

The City of Iowa City appeals a district court decision which held the

objections committee exceeded its legal authority in refusing to present

three proposed charter amendments to public vote and that the City’s

preelection challenge of the amendments’ legality was not ripe for judicial

review. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

FOR FURTHER PROCEEDINGS. 2

Eleanor M. Dilkes, City Attorney, and Susan M. Dulek, Assistant City

Attorney, for appellants.

Bruce D. Nestor of De Leon & Nestor, LLC, Minneapolis, Minnesota,

for appellees. 3

APPEL, Justice.

In this case, we are asked to determine whether three proposed

amendments to the Charter of the City of Iowa City should be placed before

the voters. The three proposals called for a retention election for the city

manager and the police chief, established a permanent police citizens review

board with certain investigative and other powers, and sought to limit police

practices with respect to nonviolent misdemeanors. After timely objections

were filed, the City’s objections committee determined that the proposed

amendments were legally flawed and, as a result, the City did not present

the amendments to the voters.

Citizens challenged the City’s refusal in district court. The City,

alternatively, sought a declaration that the proposed amendments were

unlawful. The district court ruled that the objections committee exceeded

its authority, refused to grant the City declaratory relief on the ground that

the legal issues raised by the City were not ripe for judicial review, and

ordered the City to present the proposed charter amendments to the voters.

For the reasons expressed below, the decision of the district court is

affirmed in part and reversed in part, and the case remanded with

instructions.

I. Background Facts and Proceedings.

A. Home Rule Framework for Charter Government. In order to

put this case, involving city governance, in proper perspective, we begin by

reviewing the development of home rule in Iowa. This home rule review will

provide an overview of the scope of and limitations on the power of

municipalities in Iowa to structure their local governments.

In 1868, the Chief Justice of the Iowa Supreme Court, John F. Dillon,

declared that municipalities were creatures of the legislature and had only 4

those powers expressly granted by the legislature. City of Clinton v. Cedar

Rapids & Missouri River R.R., 24 Iowa 455, 475 (1868). For the next

hundred years, the General Assembly, through application of what became

known as the Dillon Rule, maintained a tight legislative grip over municipal

affairs through a combination of inaction and a jungle of code provisions.

This tight legislative grip was relaxed, to some extent, in 1968, when Iowa

enacted a home rule amendment to the Iowa Constitution. Iowa Const.

art. III, § 38A.

The Iowa home rule amendment was a compromise between those

who desired unlimited home rule and those who favored continued

legislative control of municipal affairs. Bechtel v. City of Des Moines, 225

N.W.2d 326, 328–29 (Iowa 1975). While the Iowa home rule amendment

reversed the Dillon Rule, the legislature retained the right to legislate even

on matters involving local affairs. The constitutional amendment allocated

no areas or subject matter exclusively for municipal control. The continued

ability of the legislature after the enactment of the home rule amendment to

trump or preempt local law has been repeatedly recognized by this court.

Iowa Grocery Indus. Ass’n v. City of Des Moines, 712 N.W.2d 675, 678–79

(Iowa 2006); Bechtel, 225 N.W.2d at 332. Iowa’s type of home rule,

sometimes referred to as legislative home rule, has been criticized by some

as not providing municipalities with sufficient local autonomy. Richard

Briffault, Our Localism: Part I--The Structure of Local Government Law, 90

Colum. L. Rev. 1, 8–9 (1990).

After the enactment of the home rule amendment, the legislature for

several years worked on a revision of the substantial state legislative

framework in which municipalities were required to operate. After a few

years of study, the legislature in 1972 enacted what was known as a home 5

rule bill. While the legislative revision reflected in the home rule bill was in

many respects a nip and tuck operation, the legislature also made changes

in substantive law. Among other things, the home rule bill authorized Iowa

municipalities to adopt a charter form of government. Iowa Code § 372.1(5)

(2001). See generally Sam F. Scheidler, Survey of Iowa Law: Implementation

of Constitutional Home Rule in Iowa, 22 Drake L. Rev. 294, 316 (1973).

By allowing municipalities to adopt a charter form of government, the

legislature permitted local governments to engage in some variations from

the traditional structure of government. The legislature required, however,

that all municipal charters include provisions for a city council of at least

five members, a mayor who may be a council member, and staggered

elections for the office of mayor and city council. The legislature also

required that the powers and duties of the mayor and the council be

established and that such provisions be consistent with the city code. Iowa

Code § 372.10.

B. Method of Adopting and Amending a City Charter. Iowa City

has chosen to adopt a charter form of government, which petitioners now

seek to amend. The legislature has provided three methods of amending a

city charter by: (1) the city council submitting the matter to voters, (2) the

city council passing an ordinance with submission to the voters if so

requested by petition, and (3) petitioners proposing an amendment to be

submitted to voters for approval. Id. § 372.11. It is the third method that is

at issue in this case.

The legislature has established a substantive and procedural

framework with respect to petitions that trigger municipal elections,

including elections to consider amendments to a municipal charter. In

order to invoke the electoral process by petition, the legislature required the 6

petition to “include the signatures of the petitioners, a statement of their

place of residence, and the date on which they signed the petition.” Id.

§ 362.4. The legislature has declared that a petition is “valid” if it is “signed

by eligible electors of the city equal in number to ten percent of the persons

who voted at the last preceding regular city election. . . .” Id.

Upon receipt of a petition, the legislature has authorized the city clerk

to examine it before accepting it for filing. Id. If upon the clerk’s

examination the petition “appears valid on its face,” the legislature has

directed that the petition “shall” be accepted for filing. On the other hand, if

the petition lacks the required number of signatures, the clerk is directed to

return the petition to the petitioner. Id.

Once the clerk has accepted a petition for filing, the petition is

deemed “valid” unless written objections are filed with the city clerk within

five working days after the petition is received. Id. The receipt of a timely

written objection triggers review by an objections committee, consisting of

the mayor, the city clerk, and one member of the council chosen by council

ballot. Id. § 44.8. The legislature has directed that the city council must

present a “valid” petition to amend a city charter to the voters in a special

election. Id. § 372.11(3).

C. Proposed Charter Amendments. This case involves three

petitions to amend the Charter of the City of Iowa City. The first petition

related to the appointment and retention of the city manager and the chief

of police [hereinafter retention proposal]. As with the current charter, the

retention proposal vested authority in the city council to appoint a city

manager and chief of police. The retention proposal also directed the city

council to conduct an annual performance review for each position. In 7

addition, the retention proposal stated that the city manager and the police

chief “shall be subject to” a retention vote every four years.

The second petition sought to create a permanent police citizens’

review board [hereinafter PCRB proposal]. The PCRB proposal provided that

the board would investigate citizen claims of misconduct by sworn police

officers, issue reports on these complaints to the city council, hold at least

one community forum per year, and make recommendations regarding

police practices to the city council. The PCRB proposal clothed the board

with subpoena power in order to fulfill its functions.

The third petition sought to alter police procedures regarding

nonviolent misdemeanor offenses [hereinafter community policing proposal].

The community policing proposal sought to direct the police to issue

citations rather than arrest perpetrators of nonviolent misdemeanor

offenses, restrict the police’s ability to investigate, apprehend, and arrest

subjects of misdemeanor crimes, declare that arresting persons in

possession of personal-use amounts of marijuana not be a priority of the

Iowa City Police Department, and restrain the use of warrants for

nonviolent, misdemeanor offenses.

D. Administrative and Judicial Proceedings Related to the

Proposed Charter Amendments. The three petitions were submitted to

the city clerk in August 2001. Each petition was signed by approximately

1600 electors. The city clerk examined the petitions, found them valid on

their face, and accepted them for filing. Seven individuals and the League

of Women Voters timely filed objections to each of the three petitions. As a

result, an objections committee was formed consisting of the mayor, the city

clerk, and a member of the city council. 8

The objections committee held a public hearing at which it

entertained a wide range of objections to each of the proposed amendments.

The city attorney advised the objections committee that it could not reject a

petition on policy grounds, but could only dismiss them for “legal

insufficiency.” At the hearing, the objections committee refused to sustain a

number of challenges that questioned the wisdom, but not the legal validity,

of the proposals. The objections committee, however, sustained at least one

objection to each of the proposals.

With respect to the retention proposal, the objections committee

unanimously sustained an objection that the text of the retention petition

was “misleading” and therefore “legally insufficient.” At the hearing, it was

undisputed that the text of the retention proposal petition as circulated and

signed by the electors contained erroneous references to the existing

charter. The literal language in the petition repealed existing charter

provisions related to the city attorney instead of the charter provisions

relating to the police chief and city manager. If the retention proposal was

enacted as written, the city charter would contain two competing provisions

relating to the appointment and retention of the city manager (one in the

existing city charter and one contained in the retention proposal) and no

charter provision related to the appointment of the city attorney. Objectors

argued that under this state of affairs, neither the signators of the petition

nor the voters in the election, if held, would understand what was at stake if

the retention proposal were adopted.

On both the PCRB proposal and the community policing proposal, the

objections committee voted 2-1 to sustain an objection that the proposal

was “legally insufficient” because the substance of the proposal was not a

proper subject for a city charter and should, instead, be the subject of a city 9

ordinance. The action was based, at least in part, on advice from the city

attorney, who opined that matters related to “form of government” were

properly included in a city charter, but that matters related to the

operations of a specific department should not be enacted as charter

provisions but instead addressed in city ordinances.

Plaintiffs filed an application for writ of mandamus in district court,

praying that the court order the city council to submit the proposed

amendments to the voters of Iowa City at a special election. The district

court ruled that mandamus was not the proper remedy and granted the

City’s motion for summary judgment. On appeal, the court of appeals

affirmed, but remanded the case to allow the plaintiffs to amend to allege a

certiorari action.

On remand to the district court, the plaintiffs amended their petition

to seek a writ of certiorari. The City filed a counterclaim seeking a

declaratory judgment that the proposed amendments were contrary to Iowa

law and, as a result, no election needed to be held. The district court

granted summary judgment for the plaintiffs, holding that the objections

committee had exceeded its statutory authority. The City sought expanded

findings to obtain a ruling on its petition for a declaratory judgment. The

district court expanded its ruling and denied the City relief, holding that the

issues raised were not ripe for judicial review. The City filed a timely

appeal.

II. Standard of Review.

This is a review of a ruling granting plaintiffs’ motion for summary

judgment and denying the defendants’ cross motion for summary judgment.

Review is for errors at law. Bushby v. Washington County Conservation Bd.,

654 N.W.2d 494, 496 (Iowa 2002). 10

III. Discussion.

A. Authority of the Objections Committee to Sustain Objections

to Charter Proposals on Grounds of “Legal Insufficiency.” On appeal,

the City first claims that the objections committee acted properly in

sustaining objections to each of the three charter proposals, and, as a

result, the district court erred in ruling that the proposals should be placed

before the voters. The City concedes that under Iowa law the objections

committee has no power to reject proposed charter amendments based

upon their perceived lack of merit. The City claims, however, that the

objections committee is empowered to review proposed charter amendments

generated by petition for what it calls “legal sufficiency.”

As is generally true in law, it is the substance and not the label that is

important. “Legal sufficiency,” according to the City, includes authority to

reject a proposal, like the retention proposal, which is “misleading” in

nature. The City further asserts that the objections committee is authorized

to reject as “legally insufficient” charter amendments that do not deal with

“form of government,” but only with the manner in which government power

is exercised. The City argues that because the PCRB proposal and the

community policing proposal do not deal with “form of government,” the

objections committee acted lawfully in rejecting the proposals as legally

insufficient.

We disagree. Iowa Code section 362.4 states that a petition to amend

a city charter is “valid” if it has the requisite number of signatures of eligible

electors including their place of residence and the date on which they

signed. There are no other statutory requirements for validity of a proposed

charter amendment. Our legislature, moreover, has directed that if a

petition meets these two statutory requirements, it is “valid” under section 11

362.4 and the city council “must” submit the proposed amendment to the

voters. Iowa Code § 372.11(3).

While there are no Iowa cases directly on point, other courts have

repeatedly and routinely limited review by city officials of citizen petitions

that trigger election processes based upon the plain language of the

applicable law. See, e.g., Farley v. Healey, 431 P.2d 650, 652 (Cal. 1967)

(city officials must place on ballot initiative in compliance with formal

requirements unless otherwise directed by a court); Gaines v. City of

Orlando, 450 So. 2d 1174, 1177 (Fla. Ct. App. 1984) (governing body must

place initiative on ballot notwithstanding advice from city attorney as to

their substantive validity); Heidtman v. City of Shaker Heights, 119 N.E.2d

644, 652 (Ohio Ct. App. 1954) (city council cannot reject petition meeting all

applicable provisions of city charter and statutes); Glass v. Smith, 244

S.W.2d 645, 648 (Tex. 1951) (city council cannot fail to perform ministerial

duties based upon opinion of legal invalidity provided by city attorney);

Arenas v. Bd. of Comm’rs of the City of McAllen, 841 S.W.2d 957, 959 (Tex.

Ct. App. 1992) (city officials must call an election, despite the advice of the

city attorney that initiative was legally insufficient, where all procedural

requirements were met and election is the only remaining option). Our

holding in this case that city officials cannot engage in substantive review

beyond that expressly authorized by applicable statutes is thus well within

the mainstream of municipal law.

The City seeks to avoid the plain meaning of Iowa Code section 362.4

with a structural argument. The City argues that any approach limiting the

authority of the objections committee to the specific criteria in Iowa Code

section 362.4 illogically creates a redundant review structure. According to

the City, the city clerk reviews the petitions for compliance with Iowa Code 12

section 362.4. The City claims that the legislature could not have intended

the objections committee to duplicate the clerk’s review by applying the

same statutory criteria.

We disagree with the City’s contention that the statutory structure

overrides the plain meaning of the statute for two reasons. First, the two

levels of review established by Iowa Code section 362.4 are not redundant,

but are in fact quite different. Review by the city clerk for “validity” under

Iowa Code section 362.4 is limited to an intrinsic facial review of the four

corners of the petition. In contrast, the objections committee could consider

extrinsic evidence produced at a public hearing tending to show, for

instance, that the addresses listed for electors who purportedly signed the

petitions were nonexistent, that the purported electors could be found only

in graveyards, or that the electors who signed the petitions no longer

resided in the city. Second, to the extent the reviews of the city clerk and

the objections committee are similar, it would not be irrational for the

legislature to establish a second level of review by a multi-member

committee in the event of an objection.

Indeed, to the extent there are structural arguments, they cut against

the City’s position. The objections committee is comprised of the city clerk,

the mayor, and a member of the city council. The objections committee is

not comprised of members who ordinarily have expertise in the resolution of

legal issues. The composition evinces a legislative intent that the objections

committee serve as a fact finder, not a court of law.

Finally, the City seeks refuge from the plain meaning of Iowa Code

section 364.2 by citation to prior authority. None of the cited cases,

however, involved a determination by an objections committee of whether a

petition is “valid” under the narrow command of Iowa Code section 362.4. 13

Further, all of the cases involved judicial intervention in different statutory

and factual contexts. Petersen v. Davenport Cmty. Sch. Dist., 626 N.W.2d

99, 103–04 (Iowa 2001) (wording of petition allegedly not in compliance with

Iowa Code section 257.18(2)); Hinders v. City of Ames, 329 N.W.2d 654, 655

(Iowa 1983) (question of compliance with Iowa Code section 388.2);

Honohan v. United Cmty. Sch. Dist., 258 Iowa 57, 61–62, 137 N.W.2d 601,

604 (1965) (Iowa Code section 296.2 requires that a petition specify the

purpose for which indebtedness is created).

In summary, we agree with the district court that the objections

committee exceeded its statutory authority when it sustained objections to

the charter proposals based on grounds other than “validity” under Iowa

Code section 362.4. As a result, the actions of the objections committee did

not provide the city council with a lawful basis for refusing to place the

proposed charter amendments on the ballot at a special election.

B. Ability of City to Mount Preelection Challenge to Substantive

Legality of Proposed Charter Amendments.

1. The issues of who and when. The fact that the objections

committee and the city council may not prevent a charter amendment

petition from being placed before the voters based upon criteria other than

that established by Iowa Code section 364.2 does not end this controversy.

The City asserts that even if the objections committee exceeded its

authority, the City may launch a broadly framed preelection attack in

district court challenging the legality of the proposed charter amendments.

The City’s argument presents two closely related preliminary issues.

The first question is whether the City has standing to challenge the

potential validity of the proposed charter amendments. The second

question is whether the City or any other party may bring a preelection 14

challenge to the legal validity of proposed charter amendments that have

not been formally approved or rejected by the voters. This second question

has often been characterized as a question of ripeness.

Questions of standing and ripeness raise delicate issues regarding the

exercise of judicial power. On the one hand, state courts do not want to

intervene too soon in legal matters by deciding abstract issues without a

fully developed factual record made by parties with a strong motivation to

illuminate the issues. On the other hand, state courts do not want to

intervene too late, after legal rights have been irreparably harmed or where

the potential benefits of a timely and authoritative judicial determination

have been lost. The questions of who and when are often as important as

what and why. See generally Helen Hershkoff, State Courts and the “Passive

Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1843–44

(2001); Henry P. Monaghan, Constitutional Adjudication: The Who and

When, 82 Yale L.J. 1363, 1363–64 (1973).

2. The issue of who: The doctrine of standing. The thrust of the

petitioners’ standing argument is that that the City has no dog in this fight.

Just as no city would be allowed to challenge the validity of an ordinance

pending before the city council, the petitioners claim that the City cannot

challenge the lawfulness of a proposed charter amendment. In the charter

amendment process, the people stand in the shoes of the city council as the

source of governing power. As a result, the petitioners claim that the City

itself has not suffered an injury in fact and, in effect, that city hall should

be a neutral bystander with respect to any legal issues presented in the

proposed charter amendments.

The City counters that it should not be forced to incur the expense of

an election over proposals that are, in its view, unlawful. In addition, the 15

City maintains that the appellants have failed to preserve the issue because

the district court did not rule on standing and the appellants did not file a

rule 1.944 motion to expand findings of fact and conclusions of law. See

generally Iowa R. Civ. P. 1.944.

We disagree with the City that plaintiffs have not properly preserved

the issue of standing. The City is certainly correct that normally a party

must seek expanded findings to preserve an issue or claim submitted for

adjudication but not resolved by the district court. Meier v. Senecaut, 641

N.W.2d 532, 539 (Iowa 2002). This court, however, has long recognized “a

distinction between successful and unsuccessful parties for purposes of

error preservation.” Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d

786, 789 (Iowa 1999). A party would have no motivation to move to expand

the findings or appeal a successful verdict. As the successful party, the

plaintiffs were therefore not required to file a rule 1.944 motion to obtain a

double victory.

Finding no error preservation problem, we now turn to the standing

issue. We have found no Iowa authority expressly addressing the question

of a city’s standing to litigate the lawfulness of proposed charter

amendments. In Polk County Board of Supervisors v. Polk County Charter

Commission, 522 N.W.2d 783 (Iowa 1994) [hereinafter Polk County], this

court addressed the merits of a preelection declaratory judgment action

brought by the county and the board of supervisors challenging the validity

of a proposed Commonwealth Charter. The parties did not raise the issue

of the standing of the county or the board.

Standing has been defined to mean that a party must have

“ ‘sufficient stake in an otherwise justiciable controversy to obtain judicial

resolution of the controversy.’ ” Birkhofer ex rel. Johannsen v. Brammeier, 16

610 N.W.2d 844, 847 (Iowa 2000) (quoting Black’s Law Dictionary 1405 (6th

ed. 1990)). We have held that in order to have standing a party must (1)

have a specific personal or legal interest in the litigation and (2) be

injuriously affected. Id.

A number of courts in other jurisdictions have held that the potential

expenditure of funds by a municipality in connection with a voter petition is

sufficient to allow a city standing to litigate the underlying legality of

proposed or existing ordinances or charter provisions. City of Irvine v. Irvine

Citizens Against Overdevelopment, 30 Cal. Rptr. 2d 797, 799–800 (Cal. Ct.

App. 1994); Branca v. City of Miramar, 634 So. 2d 604, 605–06 (Fla. 1994);

Kaulakis v. Boyd, 138 So. 2d 505, 506–07 (Fla. 1962); Housing &

Redevelopment Auth. v. City of Minneapolis, 198 N.W.2d 531, 535 (Minn.

1972); City of Sequim v. Malkasian, 79 P.3d 24, 26–27 (Wash. Ct. App.

2003). But see City of Mishawaka v. Mohney, 297 N.E.2d 858, 859–60 (Ind.

Ct. App. 1973); Slama v. Attorney General, 428 N.E.2d 134, 137 (Mass.

1981).

While the City’s pecuniary interest in this litigation may be

comparatively small, it is no less substantial than the injury to an

individual taxpayer who challenges the lawfulness of a statute. Taxpayers

are almost universally acknowledged as having suffered sufficient injury in

fact to confer standing. Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 865 (Iowa

2005) (noting “the well-established rule that ‘a taxpayer may maintain an

action in his own name to prevent unlawful acts by public officers which

would increase the amount of taxes he is required to pay. . . .’ ” (quoting

Polk County v. Dist. Ct., 133 Iowa 710, 712, 110 N.W. 1054, 1055 (1907)));

see also Comment, Taxpayers’ Actions: Public Invocation of the Judiciary, 13 17

Wake Forest L. Rev. 397, 399–400, 402–03 (1977) (observing nearly every

state confers standing on taxpayers).

We find that the City meets the two-pronged standing test of

Birkhofer. The test is met because if unsuccessful in this litigation, the City

will be required to expend funds on a special election. The expenditure of

funds on a special election presents a concrete, tangible financial injury to

the City that will result absent judicial intervention, but which will be

avoided if the City prevails in this litigation. This potential cost of an

unnecessary election is a special injury different and apart from general

harm to the public.

3. The issue of when: The doctrine of ripeness. We have recognized

that the question of ripeness in the context of an action for declaratory

judgment is difficult. Citizens for Responsible Choices v. City of

Shenandoah, 686 N.W.2d 470, 474 (Iowa 2004); Wesselink v. State Dep’t of

Health, 248 Iowa 639, 643, 80 N.W.2d 484, 486 (1957). We have stated

that the question is “whether the facts alleged show there is a substantial

controversy between parties having adverse legal interests of sufficient

immediacy and reality to warrant a declaratory judgment.” Citizens, 686

N.W.2d at 474.

We have further observed in the municipal law context that rules

authorizing declaratory judgments are broad and should be applied

liberally. Bechtel, 225 N.W.2d at 330. The key to ripeness in a declaratory

judgment setting such as the one before us is an “antagonist assertion and

denial of right.” Id. (citations omitted).

This court, however, has not provided clear guidance on the

applicability of the ripeness doctrine in the context of citizen-initiated

municipal elections. In Mathews v. Turner, 212 Iowa 424, 426–27, 236 N.W. 18

412, 413 (1931), the court considered a preelection attack on a proposed

state constitutional amendment, but the issue of ripeness was not raised

and was expressly reserved. A similar result occurred in Richardson v. City

of Jefferson, 257 Iowa 709, 134 N.W.2d 528 (1965), where the district court

granted a preelection injunction to prevent the City from presenting to the

voters a revenue issue that would extend and improve a swimming pool.

This court affirmed, but did not discuss the question of ripeness.

More recently, in Polk County, 522 N.W.2d at 783, the court

considered the claims that a provision calling for the creation of a

commonwealth mayors’ commission violated the one person, one vote

provisions of the Iowa and United States Constitutions and that other

provisions of the proposed commonwealth charter did not comply with the

public hearing and content requirements of Iowa law. Id. at 788–89, 794–

96. In a concurring opinion, Justice Carter emphasized that the issues

presented were ripe for review. Id. at 796. Like the Mathews and

Richardson matters, however, Polk County has no value as a precedent on

the ripeness issue as the issue was not raised in the litigation.

The subsequent case of Citizens, 686 N.W.2d at 470, presents a fact

situation in the context of municipal government where we held that the

controversy was not ripe. In Citizens, a nonprofit corporation brought a

declaratory action objecting to a public improvement project that included a

recreational lake and a public park. Id. at 472. The project was to be

financed largely through the sale of revenue bonds, which had not yet been

approved by the necessary governing bodies. Id. The court, citing ripeness

concerns, refused to consider potential legal challenges to the project,

emphasizing the contingent status of the project. Id. at 474–75. 19

The question of whether state courts should entertain facial

challenges to ballot measures prior to an election generally raises an issue

of judicial propriety, not jurisdiction. It is a question of prudence, not

power. Hessey v. Burden, 615 A.2d 562, 574 (D.C. Cir. 1992); Gaines, 450

So. 2d at 1178; Housing & Redevelopment Auth., 198 N.W.2d at 535.

Whether to exercise the judicial power to decide preelection

challenges to ballot measures has been considered by a number of state

courts, with mixed results. Nearly all state courts allow preelection

challenges based on procedural compliance with statutory criteria governing

the petition process such as validating the required number of signatures,

etc. See Herbst Gaming, Inc. v. Heller, 141 P.3d 1224, 1228 n.8 (Nev. 2006)

(and cases cited therein).

In addition, most state courts allow preelection challenges based

upon subject matter or content restrictions for ballot measures established

by constitution or statute. Id. at 1228 n.9 (and cases cited therein). The

notion that courts engage in process and subject matter review of ballot

matters prior to the election has support in the academic commentary.

James D. Gordon III & David B. Magleby, Pre-election Judicial Review of

Initiatives and Referendums, 64 Notre Dame L. Rev. 298, 298 (1989);

Michael J. Farrell, The Judiciary and Popular Democracy: Should Courts

Review Ballot Measures Prior to Elections?, 53 Fordham L. Rev. 919, 925

(1984). According to the commentary and the applicable cases, the function

of the state courts in engaging in threshold legal review is to ensure that the

electoral path is not clogged with proposals that fail to meet the basic

requirements for gaining ballot access.

While state courts routinely serve as gatekeepers on issues of

compliance with threshold ballot access requirements related to process 20

and content, many state courts decline to extend the gatekeeping function

to include resolution of what are often termed “substantive challenges” to

the lawfulness of proposals prior to the election. See, e.g., Winkle v. City of

Tucson, 949 P.2d 502, 504 (Ariz. 1997); City of Rocky Ford v. Brown, 293

P.2d 974, 976 (Colo. 1956); Coppernoll v. Reed, 119 P.3d 318, 321–22

(Wash. 2005); State of Wisconsin ex rel. Althouse v. City of Madison, 255

N.W.2d 449, 455 (Wis. 1977). The rationale of these state courts is that

because measures are often used to send a message to elected

representatives, preelection review even of measures that are subsequently

found invalid by a court may unduly infringe on free speech values. Gordon

& Magleby, 64 Notre Dame L. Rev. at 312; M. Sean Radcliffe, Pre-election

Judicial Review of Initiative Petitions: An Unreasonable Limitation on Political

Speech, 30 Tulsa L.J. 425, 436–37 (1994).

In addition, where facial attacks on constitutional grounds are

presented, the doctrine of necessity is implicated. Under the prudential rule

of necessity, constitutional issues must not be resolved in advance of a

strict necessity for deciding them. Immigration & Naturalization Serv. v.

Chadha, 462 U.S. 919, 937, 103 S. Ct. 2764, 2776–77, 77 L. Ed. 2d 317,

331 (1983); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346, 56 S. Ct.

466, 482, 80 L. Ed. 688, 710 (1936) (Brandeis, J., concurring).

On the other hand, a number of state courts have held that

substantive, facial challenges to the legality of legislative initiatives are

subject to judicial determination prior to their adoption by the electorate

under proper circumstances. Many states limit such substantive, facial

preelection review to cases where the illegality is “clear,” “compelling,” or

“manifest.” Alaska Action Ctr. v. Municipality of Anchorage, 84 P.3d 989, 992

(Alaska 2004) (proper where “controlling authority” is present); Legislature v. 21

Deukmejian, 669 P.2d 17, 21 (Cal. 1983) (“clear showing of invalidity”); In re

Initiative Petition No. 360, State Question No. 658, 879 P.2d 810, 814 (Okla.

1994) (discretion to consider substantive review where issues are “clear”).

While these courts generally concede that judicial intervention to determine

legal issues related to proposals pending, but not finally enacted by a

legislative body would be improper, citizen initiatives are distinguished on

the ground that, unlike legislative proposals, they are not subject to

amendment prior to enactment and involve direct and indirect costs

associated with the holding of elections. Whitson v. Anchorage, 608 P.2d

759, 762 n.5 (Alaska 1980); Associated Taxpayers of Idaho v. Cenarrusa,

725 P.2d 526, 532–33 (Idaho 1986) (Huntley, J., dissenting); Wyoming Nat’l

Abortion Rights Action League v. Karpan, 881 P.2d 281, 289 (Wyo. 1994).

Some courts, however, reject the notion that there are degrees of

illegality that affect the exercise of judicial review of ballot measures prior to

the election. As noted by one court, it makes no difference whether a

proposal is “clearly illegal” or just “illegal,” as under either circumstance,

the proposal is invalid. Haumant v. Griffin, 699 N.W.2d 774, 780 (Minn. Ct.

App. 2005); see also Citizens for Responsible Behavior v. Superior Ct., 2 Cal.

Rptr. 2d 648, 653 (Cal. Ct. App. 1991).

Based on our review of the cases, we adopt the concensus view that a

preelection challenge with respect to threshold process and content

requirements for proposed municipal charter amendments should generally

be considered ripe for adjudication. In this context, the issues do not relate

to substantive validity of the proposal, but only to whether a particular

proposal qualifies under applicable law for presentation to the voters.

Alaska Action Ctr., 84 P.3d at 992. In so holding, we are concerned not

solely with the cost of a needless special election. Utz v. City of Newport, 22

252 S.W.2d 434, 437 (Ky. 1952). We believe the time and money citizens

are willing to devote to political activity are valuable resources that should

not be squandered on charter initiatives that fail to meet even threshold

ballot requirements. Am. Fed’n of Labor-Cong. of Indus. Org. v. Eu, 686 P.2d

609, 615 (Cal. 1984). As a result, we hold that the issue of whether the

three proposals contain charter material, or are related to “form of

government,” is ripe for review.

We next turn to the more difficult question of whether a preelection

challenge to the substantive, facial validity of a proposed city charter

amendment may be entertained. Even advocates of judicial restraint

recognize that there are some cases where preelection judicial review of the

substantive validity of underlying proposals is appropriate. See, e.g., In re

Initiative Petition No. 358, State Question No. 658, 870 P.2d 782, 791 (Okla.

1994) (Ovala, J., concurring) (noting that preelection judicial review is

appropriate where constitutional law is “firmly settled” and “absolutely”

condemns the proposal); Gordon & Magleby, 64 Notre Dame L. Rev. at 318

(advocating a circuit breaker exception allowing preelection substantive

review in exceptional cases). We therefore reject the blanket rule that such

challenges may never be considered.

We conclude that preelection review of the substantive facial

challenge to the retention amendment, namely, that the retention proposal

is inconsistent with various provisions of the city code, is ripe for review. In

this case, there is no pending election. Where there is no pending election,

judicial review may take its ordinary course without the shortcomings

associated with an expedited review. Indep. Energy Producers Ass’n v.

McPherson, 136 P.3d 178, 181 (Cal. 2006); Brosnahan v. Eu, 641 P.2d 200,

202 (Cal. 1982) (Broussard, J., concurring). Further, because the election 23

has not yet been scheduled, the harm to the political process will be

minimal. Early judicial intervention may give the measure’s proponents an

opportunity to cure defects before time and money is expended on a doomed

effort. Douglas C. Michael, Preelection Judicial Review: Taking the Initiative

in Voter Protection, 71 Cal. L. Rev. 1216, 1217 (1983).

In addition, to timing matters, the substantive nature of the legal

challenges does not prevent consideration of the legal issues at this time.

The substantive facial challenge in this case presents an issue of law that is

clear and not subject to serious dispute. Alaska Action Ctr., 84 P.3d at 992;

Deukmejian, 669 P.2d at 21; In re Initiative Petition No. 360, 879 P.2d at 814.

Because fundamental and difficult issues of constitutional law are not

involved, the rule of necessity lays dormant. As a result, we proceed to

address the merits of the claim.1 C. Threshold Issues and Substantive Merit of Charter Proposals.

1. Inconsistency with state law. The City attacks the retention

proposal as substantively unlawful. The City claims that the retention

proposal is contrary to provisions of Iowa law related to the appointment

and retention of the city manager and the police chief. In considering this matter, we do not pass on the merits of proposed charter amendment. Our

only task in the legislative home rule environment is to determine whether

the proposal is consistent with state law.

The question of whether the City may determine the method of

appointment and removal of city officials free from legislative interference

1Because the district court held that the City’s declaratory judgment action was not ripe for review, it did not rule upon the substantive validity of each of the proposed amendments. This court is thus left with the choice of remanding the case back to the district court or deciding the additional issues itself. “Where . . . the additional issues have been fully briefed and argued in this court, we conclude that it is in the interest of sound judicial administration to decide these issues here.” Barnes v. Iowa Dep’t of Transp. Motor Vehicle Div., 385 N.W.2d 260, 263 (Iowa 1986). 24

has been a topic of discussion in municipal governance. As early as 1953, a

model constitutional provision advanced by city advocates reserved the right

to structure the appointment and retention process to the cities. Am. Mun.

Ass’n, Model Const. Provisions for Mun. Home Rule § 6 (1953) (as cited in

George D. Vaubel, Toward Principles of State Restraint upon the Exercise of

Municipal Power in Home Rule, 20 Stetson L. Rev. 5, app. 1 at 74 (1990)). At

least three state constitutions currently have home rule provisions that

expressly reserve the right of local governments to structure the

appointment and retention process with respect to city officials. See Cal.

Const. art. XI, § 5(b) (“It shall be competent in all city charters to provide

. . . for . . . the manner in which, the method by which, the times at which,

and the terms for which the several municipal officers and employees . . .

shall be elected or appointed. . . .”); Ill. Const. 1970 art. VII, § 6(f) (“A home

rule municipality shall have the power to provide for its officers, their

manner of selection, and terms of office only as approved by referendum or

as otherwise authorized by law.”) (as cited in Clarke v. Village of Arlington

Heights, 309 N.E.2d 576, 577 (Ill. 1974)); Ohio Const. art. X, § 3 (“Every

such charter shall provide the form of government of the county and shall

determine which of its officers shall be elected and the manner of their

election.”).

The Iowa home rule amendment, however, does not reserve such

power to municipalities. As a result, we turn to the Code to determine

whether the retention proposal on its face is inconsistent with state law. If

so, the proposed charter amendment would be invalid. Goodell v. Humboldt

County, 575 N.W.2d 486, 500 (Iowa 1998); Iowa Code § 364.1.

The Iowa legislature has allowed the cities a degree of discretion in

determining who appoints city officials. For example, Iowa Code section 25

372.13(4) provides that “[e]xcept as provided by state or city law,” the city

council appoints officers and employees and prescribes their duties,

compensation, and terms. Thus, the first sentence of Iowa Code section

372.13(4) allows cities to provide for an appointing body other than the city

council. See Flowers v. City of Moline, 622 N.E.2d 38 (Ill. App. Ct. 1993)

(appointment powers distributed between city council and mayor).

Regardless of who appoints city officers and employees and prescribes their

duties, however, the second sentence of section 372.13(4) contains the

unqualified statement that “[t]he appointment of a city manager must be

made on the basis of that individual’s qualifications and not on the basis of

political affiliation.” Iowa Code § 372.13(4).2 Similarly, regardless of the appointing authority, the civil service code requires that the selection of all

appointed officers and employees of cities must be based upon their

“qualifications and fitness and for the good of the public service, and

without regard to their political faith or party allegiance.” Id. § 400.16.

The retention proposal in this case arguably conflicts with the spirit if

not the letter of Iowa Code sections 372.13(4) and 400.16. The retention

proposal injects an extraneous political process into the employment relations between the city manager and police chief and the appointing

authority not related to job qualifications. We doubt that the proposed

retention amendment is consistent with the legislative intent behind these

Code sections. Goodell, 575 N.W.2d at 500.

More importantly, however, the legislature has addressed the issue of

how these appointed officials may be terminated. In Iowa Code section

2Iowa Code section 372.13(4) states, “Except as otherwise provided by state or city law, the council may appoint city officers and employees, and prescribe their powers, duties, compensation, and terms. The appointment of a city manager must be made on the basis of that individual’s qualifications and not on the basis of political affiliation.” Iowa Code § 372.13(4). 26

372.15, the legislature has provided that “[e]xcept as otherwise provided by

state and city law,” the appointing authority has the power to remove the

city officer. Pursuant to this provision, a city has the option of vesting

removal authority in an entity or person other than the original appointing

authority. Section 372.15, however, is qualified by the provision “but every

such removal shall be by written order.” The section further provides that

the written order “shall give the reasons” for the dismissal. The officer is

then entitled to a public hearing before the council on all issues connected

with the removal. Iowa Code § 372.15.3 The very specific “but every such removal” language in Iowa Code

section 372.15 is designed as a limitation on the city’s power to remove

public officers. State v. Ciancanelli, 121 P.3d 613, 614 (Ore. 2005) (stating

the phrase “but every” describes exceptions or modifications). This

statutory removal provision applies to all public officers regardless of the

form of government that a city may choose to employ. City of Des Moines v.

Civil Service Comm’n, 540 N.W.2d 52, 59–60 (Iowa 1995); La Peters v. City of

Cedar Rapids, 263 N.W.2d 734, 736–37 (Iowa 1978). While Iowa Code

section 372.15 does not require that the appointing authority demonstrate that removal was for cause, Bennett v. City of Redfield, 446 N.W.2d 467, 473

(Iowa 1989), it does mandate that a public officer have notice of the reasons

3Iowa Code section 372.15 states, Except as otherwise provided by state or city law, all persons appointed to city office may be removed by the officer or body making the appointment, but every such removal shall be by written order. The order shall give the reasons, be filed in the office of the city clerk, and a copy shall be sent by certified mail to the person removed who, upon request filed with the clerk within thirty days of the date of mailing the copy, shall be granted a public hearing before the council on all issues connected with the removal. The hearing shall be held within thirty days of the date the request is filed, unless the person removed requests a later date.

Iowa Code § 372.15. 27

for termination and the opportunity to be heard before the appointing

authority.

The retention proposal provides for removal of the city manager and

the police chief through a vote of the people, without written notice, without

a statement of reasons, and without a hearing before the city council. These

three procedural omissions are fatal to the proposed charter amendment.

Iowa Code § 364.6 (“A city shall substantially comply with a procedure

established by state law for exercising a city power.”). Removal under the

retention amendment does not involve deliberation of elected

representatives that is at the heart of representative democracy which our

legislature has chosen to prescribe. State ex rel. Connie v. Hunter, 117 A.

548, 549 (Conn. 1922) (applying referendum to appointment and removal of

city manager would defeat system of putting business affairs in hands of

trained expert rather than a popular favorite); State ex rel. Becker v.

Common Council of City of Milwaukee, 305 N.W.2d 178, 182–83 (Wis. Ct.

App. 1981) (initiative for removal of police chief violates state statute vesting

authority in board).

The petitioner’s sole defense of the retention proposal is that it might

be interpreted in a fashion that would allow the city manager or the police

chief to remain in office after a negative vote in a retention election. The

defense has two thematic variations. First, the petitioners suggest that a

negative retention vote might not require the removal of the official in

question, but may be regarded as advisory only. Second, the petitioners

suggest that even if the proposal were interpreted as requiring the removal

of an officer that failed to prevail in a retention election, the City could

simply reappoint the official. 28

We reject the contention that the proposed charter provision may be

saved by characterizing the retention election as merely advisory. The

retention proposal expressly states that the appointment of the city

manager and the police chief “shall be subject to” a “retention” election.

The term “shall” is mandatory. Iowa Code § 4.1(30)(a) (“The word ‘shall’

imposes a duty.”); State v. Klawonn, 609 N.W.2d 515, 521 (Iowa 2000) (“the

word ‘shall’ does not mean ‘may’ ”); State v. Luckett, 387 N.W.2d 298, 301

(Iowa 1986) (use of the word “shall” connotes mandatory action). The

phrase “subject to” means “governed by” or “dependent upon.” Util. Cost

Mgmt. v. Indian Wells Valley Water Dist., 36 P.3d 2, 7 (Cal. 2001); Mayor of

City of Lansing v. Michigan Public Serv. Comm’n, 680 N.W.2d 840, 843–44

(Mich. 2004). Retention means a “state of being kept in place.” Webster’s

Third International Dictionary 1938 (unabr. ed. 2002). Given this

unambiguous language, we will not twist the plain meaning of the retention

proposal beyond recognition to suggest that it merely authorizes a public

opinion poll on the performance of the police chief and city manager. State

v. Welton, 300 N.W.2d 157, 160 (Iowa 1981). Similarly, we will not distort

the plain meaning of the proposal to allow an officer who was not retained

to be immediately rehired, thereby converting the retention election into a

straw poll.

The retention proposal also contains a provision requiring yearly job

evaluations of the city manager and the police chief. The City does not

directly attack this aspect of the retention proposal. On the other hand, the

retention proposal does not contain a severability clause and the petitioners

have not asked us to sever any remaining lawful portions of the retention

proposal. Cf. Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 174 (Iowa 2004)

(in the context of statutory severance, this court has held that severance “is 29

appropriate if it does not substantially impair legislative purpose, the

enactment remains capable of fulfilling the apparent legislative intent, and

the remaining portion of the enactment can be given effect without the

invalid provision” (citations omitted)).

It is not clear that the doctrine of severance should apply in the

context of preelection substantive review of a proposed municipal charter

amendment. Compare Bennett v. Drullard, 149 P. 368, 370 (Cal. Ct. App.

1915) (refusing to allow severability as not germane to the will of the

electorate); Housing & Redevelopment Auth., 198 N.W.2d at 538 (severance

not appropriate as court cannot determine intent of signators if some

portions invalid); State ex rel. Hazelwood Yellow Ribbon Comm. v. Klos, 35

S.W.3d 457 (Mo. Ct. App. 2000) (rejecting severability because it is

impossible for court to determine what petition drafters or signators

intended), with McAlpine v. Univ. of Alaska, 762 P.2d 81, 94 (Alaska 1988)

(allowing severability because the court’s duty in conducting preelection

review is akin to review of an enacted statute); City of Colorado Springs v.

Bull, 143 P.3d 1127, 1138 (Colo. Ct. App. 2006) (deciding that unlawful

portions of proposed initiative should be severed from remainder of ballot

initiative).

In any event, even if the doctrine of severance did apply, it would not

be the proper approach in this case. Where the main portions of a citizen

petition are invalid, the remainder should not be sent to the voters in

redacted form. McAlpine, 762 P.2d at 95 n.26; Alexander v. Mitchell, 260

P.2d 261, 268 (Cal. Ct. App. 1953); Fossella v. Dinkins, 485 N.E.2d 1017,

1019 (N.Y. 1985). “[T]o separate the good from the bad and permit the

submission to the voters of a maimed and worthless thing would be folly.” 30

McCabe v. Voorhis, 153 N.E. 849, 853 (N.Y. 1926). As a result, we hold that

no part of the retention proposal should be submitted to the voters.

Having found that the retention proposal is invalid because of its

conflict with Iowa law regarding the appointment and removal process of

city officials, we do not decide the question of whether the erroneous

citation to charter provisions in the petition is a basis for legal challenge.

2. Threshold Limitation of Charter Amendments to “Form of

Government.” The City attacks the PCRB proposal and the community

policing proposal on the sole ground that the proposals do not contain

proper charter material. The City zealously argues that only matters related

to “form of government” may be subject to proposed ballot amendments.

According to the City, the content of charter amendments is limited by Iowa

Code section 372.9 to amendments that relate to the “form of government.”

Iowa Code section 372.9 states that “[a] city to be governed by the home

rule charter form shall adopt a home rule charter in which its form of

government shall be set forth.” The City raises no other challenge to the

validity of these proposed charter amendments.

In considering the meaning of the term “form of government,” we

must consider relevant legislative history. Prior to 1975, Iowa Code section

372.10 stated that a home rule charter must contain “and is limited to” five

specific provisions related to the structure of city councils, the manner of

holding elections, and the duties of the city council and city officers. As a

result of this strict language, the contents of a city charter prior to 1975

were severely limited. In 1975, however, the legislature opened Iowa Code

section 372.10 by deleting the phrase “and is limited to.” 1975 Iowa Acts

ch. 203, § 22. 31

The City contends that the legislative purpose behind this

amendment was modest. According to the City, lifting the strict limitations

in charter content was not designed to allow any imaginable law, policy,

practice, or procedure to become part of the charter, but only to expand the

potential form of government provisions that cities might choose to employ

in light of the passage in 1968 of the home rule amendment to the Iowa

Constitution. Iowa Const. art. III, § 38A.

The plaintiffs, in contrast, reject the limitation of city charters to

content involving “form of government.” They argue that the 1975

amendment to Iowa Code section 372.10 dramatically expanded permissible

charter content. Further, they note that under Iowa Code section 372.2,

the “form of government” of a municipality may be changed only every six

years. This provision, appellants argue, implies that charter amendments

that do not involve “form of government” may be offered at any other time.

There are no Iowa cases dealing with this precise issue. The closest

case cited by the parties is City of Clinton v. Sheridan, 530 N.W.2d 690, 692

(Iowa 1995). In this case, however, the issue was whether a proposed

referendum dealing with various building codes was consistent with state

law. The issue of potential restrictions on charter content arising from the

use of the term “form of government” was not presented and, of course, not

decided in that case. In dictum, the court suggested that the amendment to

Iowa Code section 372.10 was designed to “allow the home rule charters to

include the broad powers to determine local affairs and government. . . .”

City of Clinton, 530 N.W.2d at 694.

When the legislature amended Iowa Code section 372.10, it did not

alter Iowa Code section 372.9, which provides that a city may adopt a home

rule charter “in which its form of government is set forth.” The legislature’s 32

inclusion, moreover, of the phrase “form of government” in Iowa Code

section 372.9 was deliberate. Ashby v. Sch. Twp. of Liberty, 250 Iowa 1201,

1214, 98 N.W.2d 848, 858 (1959) (“A cardinal rule of statutory construction

is that, if reasonably possible, effect should be given every part of a

statute.”). We view this language as establishing the kind of material or

subject matter that may be contained in a city charter. The 1975

amendment was designed to permit more experimentation with respect to

form of government, while not abandoning the preexisting “form of

government” limitation. In re Barry, 720 A.2d 977, 979 (N.H. 1998) (New

Hampshire Constitution allows city charter to include various forms of

government, but does not grant municipality unbridled authority to amend

its charter to include retirement plan provisions); Cheeks v. Cedlair Corp.,

415 A.2d 255, 261 (Md. 1980) (charter is vehicle for form of government

which identifies, distributes, and restricts municipal power). To the extent

that dictum in City of Clinton implies that material that does not relate to

form of government may be included in the charter, it is disapproved.

We do not believe Iowa Code section 372.2 requires a different result.

Iowa Code section 372.2 provides that unless otherwise provided by law, a

city may not adopt a different “form of government” more often than once in

a six-year period. We read Iowa Code section 372.2 to mean that a city may

enact a fundamental change in its “form of government” (e.g. from city

council/mayor, city council/city manager or commission to another form)

every six years, but may tinker with less sweeping amendments at other

times. See Clarke, 309 N.E.2d at 579 (distinguishing between amendments

and total adoption or repeal of form of government); Kelly v. Laing, 242 N.W.

891, 892 (Mich. 1932) (distinguishing between amendments to charter and

redraft of entire document). We do not read this section as authorizing 33

“non-form of government” amendments during the six-year cycle

established by Iowa Code section 372.2.

Having determined that amendments to city charters must, as a

matter of law, relate to “form of government,” the next question is what

subject matter falls within the ambit of the phrase. In the context of

municipal charters, the term “form of government” has been said to refer to

“fundamental” provisions that provide “a broad organizational framework

establishing the form and structure of government.” Cheeks, 415 A.2d at

261. Another formulation suggests that a municipal charter is a plan that

establishes the structure of local government and constitutes “nothing more

than the machinery by which the powers and responsibilities of government

may be executed. . . .” Holsclaw v. Stephens, 507 S.W.2d 462, 471 (Ky.

1973).

These general statements about what constitutes “form of

government” are not always helpful, however, and the case law in other

jurisdictions suggests that the phrase “form of government” is often defined

more by what it does not include than anything else. A number of cases

contrast charter provisions with ordinances, noting that a proposal to

amend a charter cannot be an ordinance in masquerade. For instance, in

Cheeks, 415 A.2d at 255, the court found that a charter amendment

establishing a detailed rent control regulatory regime did not relate to “form

of government,” but instead amounted to substantive legislation that could

not be included in a city charter. See also Mayor & City Council of Ocean

City v. Bunting, 895 A.2d 1068, 1075–76 (Md. Ct. App. 2006) (charter

amendment permitting police department employees to engage in collective

bargaining held too specific and not related to broad organizational

framework of government); In re Initiative Petition No. 1 of Midwest City v. 34

Melton, 465 P.2d 470, 472 (Okla. 1970) (proposed charter amendment

requiring voter approval of ordinances affecting sale or transfer of real

estate held too specific to be valid charter amendment). Under this line of

authority, the more detailed a proposal and the more it establishes

substantive policy instead of structure, the greater the likelihood that the

proposal does not relate to form of government and does not qualify for

inclusion in a city charter.

It also is clear that matters that are best characterized as

administrative are not the stuff of valid charter proposals. Such matters do

not even qualify as municipal ordinances that may be enacted through the

initiative process, let alone enshrined as charter provisions. See, e.g., Jones

v. Int’l Ass’n of Fire Fighters, Local Union No. 936, 601 S.W.2d 454, 455–56

(Tex. Ct. Civ. App. 1980) (proposal must be legislative in character to qualify

as a charter amendment); Save Our Fire Dep’t Paramedics Comm. v. City of

Appleton, 389 N.W.2d 43, 47 (Wis. Ct. App. 1986) (same). The rationale of

these cases is that in order to allow for efficient administration of the city,

administrative matters without sufficient generality and permanence should

not be subjected to popular vote. City of Wichita v. Fitzgerald, 916 P.2d

1301, 1304 (Kan. Ct. App. 1996).

There is no clear method for determining whether a proposal to be

placed before the electorate involves impermissible administrative matters.

One test of whether a proposal is administrative in nature is whether it

executes law previously established. Wennerstrom v. City of Mesa, 821 P.2d

146, 150 (Ariz. 1991); City of Lawrence v. McArdle, 522 P.2d 420, 425 (Kan.

1974). Matters that have been found administrative in nature, and thus not

subject to being placed on the ballot as initiative measures, are proposals to

reorganize special districts, measures concerning the acquisition, 35

construction, and regulation of penal facilities, a proposal regarding the use

and placement of speed bumps, and a proposal for increased salaries for

city employees. Friends of Mt. Diablo v. County of Contra Costa, 139 Cal.

Rptr. 469 (Cal. Ct. App. 1977); Murphy v. Gilman, 204 Iowa 58, 62, 214

N.W. 679, 681–82 (1927); State ex rel. Hazel v. Cuyahoga County Bd. of

Elections, 685 N.E.2d 224 (Ohio 1997); Save Our Fire Dep’t, 389 N.W.2d at

43.

We embrace the general contours of the above cited authorities as

consistent with the direction of our legislature. Under this approach, basic

structural proposals truly involving the form, not the substance, of

government are subject to voter approval through the charter amendment

process. Matters of policy or administration, however, are to be processed

through the ordinary channels of representative democracy with its

Madisonian virtues. The Federalist No.10 (James Madison) (advocating

deliberation by representative bodies). Policy and administrative matters

are thus subject to the give and take of the deliberative processes of

representative government and are not to be implanted in a city charter by

transient majorities.

Applying these above concepts, we hold that the PCRB proposal

relates to the form of government under Iowa Code section 372.9 and is a

permissible charter amendment under Iowa Code section 372.10. The

PCRB proposal establishes a permanent body to investigate and make

recommendations to the city council regarding police practices. The PCRB

proposal does not invade the province of the city council by dictating

particular law enforcement practices or by controlling budget priorities. It

simply establishes a permanent entity to engage in public hearings, conduct

investigations, and make recommendations to the city council. It is 36

involved primarily with government processes, not substantive law, and

thus is an amendment involving “form of government.”

We believe the PCRB proposal is a model of the kind of measure that

the legislature’s removal of limitations in Iowa Code section 372.10 was

designed to allow. As a result, the district court order requiring this matter

to be placed before the voters is affirmed.

On the other hand, we hold that the community policing proposal

does not relate to form of government and therefore is an impermissible

amendment to the charter. The community policing proposal declares that

city police officers “shall” issue citations in lieu of arrest for most nonviolent

misdemeanor offenses, “shall” notify persons of the existence of an arrest

warrant unless there is a danger to the community or risk of flight, and

“should” not engage in certain activities such as “knock and talks” or going

as undercover agents in bars, restaurants, and other public places, and

acting on certain anonymous tips. The community policing proposal further

declares that enforcement of laws related to the possession of personal-use

amounts of marijuana are not a “priority” of the City. As can be seen from

the above description, the community policing proposal does not relate to a

“form of government,” but simply seeks to establish executive or

administrative policy for the City with respect to law enforcement practices

in a narrow category of crimes. As a result, the community policing

proposal does not relate to “form of government” as required by Iowa Code

section 372.9.

Our holding that a charter is not the place to cement executive and

administrative policy for the enforcement of certain criminal laws does not

leave the plaintiffs without a remedy. If the plaintiffs are dissatisfied with

the manner in which city officials are making executive and administrative 37

decisions regarding the enforcement of nonviolent misdemeanors, they have

a remedy through the ballot box when responsible city officials stand for

election.

For the above reasons, we conclude that the community policing

proposal does not involve “form of government.” It is, therefore, not a valid

charter amendment, and should not be presented to the voters.

IV. Conclusion.

We find that the objections committee exceeded its statutory authority

by rejecting the proposals as legally insufficient. The district court order

granting plaintiffs’ motion for summary judgment is affirmed.

We further hold that the City is entitled to a declaratory judgment

that the retention and community policing proposals are inconsistent with

Iowa law and, as a result, the City is under no obligation to place these

matters before the voters. With respect to the PCRB proposal, however, we

find that the City is not entitled to a declaratory judgment of invalidity and

that the voice of the voters should be heard on this issue.

As a result, the district court order, which refused to grant the City

declaratory relief on the retention and community policing proposals and

granted the appellants relief on these issues is reversed. The district court

order denying the City declaratory relief on the PCRB proposal and directing

the City to place this proposal on the ballot is affirmed. The case is

remanded to the district court for further proceedings not inconsistent with

this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR

FURTHER PROCEEDINGS.