Bowers v. Polk County Bd. of Supervisors

• Decision Date: 07 January 2002
• Docket Number: No. 01-1636.,01-1636.
• Parties: Frank BOWERS, Appellant, v. POLK COUNTY BOARD OF SUPERVISORS and Polk County, Iowa, Appellees.
• Court: Iowa Supreme Court

638 N.W.2d 682

Frank BOWERS, Appellant, v. POLK COUNTY BOARD OF SUPERVISORS and Polk County, Iowa, Appellees.

No. 01-1636.

Supreme Court of Iowa.

January 7, 2002.

Rehearing Denied February 7, 2002.

Bruce E. Johnson of Lewis, Webster, Johnson, Van Winkle & DeVolder, L.L.P., Des Moines, for appellant.

Edward W. Remsburg of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, Des Moines, and John P. Sarcone, County Attorney, and Michael O'Meara, Assistant County Attorney, for appellees.

L.R. Voigts, Stephanie L. Marett, and Jordan B. Hansell of Nyemaster, Goode, Voigts, West, Hansell & O'Brien, P.C., and Mark McCormick and Matthew T. Cronin of Belin, Lamson, McCormick, Zumbach & Flynn, P.C., for amicus curiae Greater Des Moines Partnership.

LAVORATO, Chief Justice.

Frank Bowers appeals from a district court judgment affirming the Polk County Board of Supervisors' decision to authorize the issuance of essential county purpose bonds without holding a public referendum. Bowers contends the statutes at issue, as applied, violate the Iowa constitutional guarantees of equal protection and due process. Because we find no such constitutional violations, we affirm.

I. Statutory Scheme.

We think a discussion of the statutory scheme at issue would put the facts and proceedings in this case in proper context and aid our discussion of the issues Bowers raises.

In 1981, the Iowa legislature enacted Iowa Code chapter 331, which addresses county home rule implementation. See 1981 Iowa Acts ch. 117. Division IV of the chapter sets forth the powers and duties of the county board of supervisors regarding county finances. Iowa Code section 331.441 defines two types of general obligation bonds, "essential county purpose" bonds and "general county purpose" bonds. Iowa Code § 331.441(2)(b), (c) (2001).

Generally, "essential county purpose" includes, among other things, voting machines, bridges or highways, sewers, public buildings, enlargement and improvement of county hospitals, waterworks, etc. Iowa Code § 331.441(2)(b)(1)-(12). "Essential county purpose" also includes acquisition of a city convention center or veterans memorial auditorium, and carrying out urban renewal projects. Iowa Code § 331.441(2)(b)(13), (14). The bonds in this case are general obligation bonds for an essential county purpose that both Bowers and the Board describe as urban renewal. Section 331.441(2)(b)(14) therefore applies.

In general, essential county purpose bonds are not subject to the possibility of a voter referendum. Iowa Code § 331.443(2). Before the Board may issue bonds for an essential county purpose, it must publish a notice of the proposed action not less than four and not more than twenty days before the date of the meeting at which the board proposes to take action. Iowa Code §§ 331.443(2), 331.305. After considering oral or written objections at the meeting, the board may take additional action to issue the bonds or abandon the proposal to issue them. Iowa Code § 331.443(2). Any resident or property owner of the county may appeal the board's decision to the district court within fifteen days, "but the additional action of the board is final and conclusive unless the court finds that the board exceeded its authority." Id.

The procedure is different, however, for essential county purpose bonds to fund urban renewal projects. Such bonds are subject to the "right of petition for an election as provided in section 331.442, subsection 5, without limitation on the amount of the bond issue or the population of the county." Iowa Code § 331.441(2)(b)(14). Additionally, "the board shall include notice of the right of petition in the notice of proposed action required under section 331.443, subsection 2." Id.

As section 331.441(2)(b)(14) provides, section 331.442(5) sets forth the right-of-petition procedure for essential county purpose bonds to fund urban renewal projects. At least ten days prior to the meeting at which it proposes to take action, the board must give notice of the proposed action, and include a statement of the right to petition for an election. Iowa Code § 331.442(5)(a). If a petition is filed with the auditor "in the manner provided by section 331.306" at any time before the date fixed for the meeting at which the board proposes to take action, the board shall either by resolution abandon the proposal to issue the bonds or call a special election. Iowa Code § 331.442(5)(b). Section 331.306 provides that such a petition must be "signed by eligible electors of the county equal in number to at least ten percent of the votes cast in the county for the office of the president of the United States or governor at the preceding general election." Iowa Code § 331.306. If the board calls a special election, at least sixty percent of the total votes cast must be in favor of issuing the bonds. Iowa Code § 331.442(4).

In contrast, the issuance of general county purpose bonds requires a special election. The issuance of such bonds requires a vote in favor of the bond proposal equal to at least sixty percent of the total vote cast for and against the bond proposal. See Iowa Code § 331.442(2), (4).

However, no special election is required for general county purpose bonds where the size of the bond issue is small enough when compared with the population of the county. See Iowa Code § 331.442(2), (5). In those limited circumstances (e.g., population of 20,000 or less, amount not more than $50,000), the board must give at least ten days' notice of the proposed action and include a statement of the right to petition for an election. Iowa Code § 331.442(5). The petition process is the same as described above. See Iowa Code §§ 331.306, 331.442. "General county purpose" means a memorial building or monument, museum, park or recreation area, airport, county public hospital, etc., or "[a]ny other purpose which is necessary for the operation of the county or the health and welfare of its citizens." Iowa Code § 331.441(2)(c).

With this statutory scheme in mind, we proceed to the background facts and proceedings in this case.

II. Background Facts and Proceedings.

On July 24, 2001, the Polk County Board of Supervisors adopted a resolution fixing the date for a meeting on the proposition to issue, in one or more series, not to exceed $151 million, general obligation bonds for an essential county purpose. The resolution also provided for publishing notice of the proposition. The bonds are to be used to finance the Iowa Events Center, a large arena and exhibit hall in downtown Des Moines, Iowa.

The public notice was published in The Des Moines Register on July 26, 2001. The notice stated that the Board would hold a public hearing on August 7, 2001, to take additional action for the issuance of $151 million general obligation bonds for essential county purposes. The notice also stated, "[a]t, any time before the date of said meeting, a petition, asking that the question of issuing such bonds be submitted to the legal voters of said County, may be filed with the Auditor of said County in the manner provided by Section 331.306 of the Code of Iowa, pursuant to the provisions of Section 331.442 of the Code of Iowa."

Because the bonds here are to fund an urban renewal project, the Iowa Events Center, their issuance is subject to the right of petition for an election. See Iowa Code § 331.441(2)(b)(14). In this case, the Board was required to publish notice at least ten days before the meeting at which it proposed to take action for the issuance of the bonds. See Iowa Code § 331.442(5).

As mentioned, a valid petition for an election must contain signatures equal to ten percent of the votes cast in the most recent presidential or gubernatorial election. See Iowa Code § 331.306. If the petition is valid, the board may direct the county auditor to call a special election in which sixty percent of the votes cast must be in favor of issuing the bonds. See Iowa Code § 331.442(4), (5). Here, 17,417 signatures were required based on the votes cast in the 2000 presidential election.

Bowers began planning a petition drive on July 27. Several ads, reproducing the petition for a referendum, appeared in The Des Moines Register, urging citizens to sign the petition. A small group of volunteers helped Bowers circulate petitions door-to-door and in public places.

At Bowers's request, the county auditor agreed to keep his office open into the evening on August 6, to accept Bowers's petition. At approximately 9:30 p.m., Bowers delivered a basket of documents containing the petition with signatures of persons requesting a referendum. After an initial count, the auditor determined that Bowers was 576 signatures short. A recount, requested by Bowers, showed he was 619 signatures short. At approximately 11:15 p.m., the auditor refused to accept the petition and returned it together with the signatures to Bowers. See Iowa Code § 331.306 (providing that a petition lacking the required number of signatures shall be returned to the petitioners).

The next day — the date set for the public hearing — the auditor appeared before the Board and informed it that Bowers had presented a petition lacking the requisite number of signatures. Bowers appeared before the Board and stated that he had additional signatures. He also said, "I just want you to know that if we had had one more day, you wouldn't have to make this decision. The voters would have made it for you." The Board voted three to two in favor of issuing the bonds.

Bowers appealed the Board's action to the district court pursuant to section 331.443(2), raising several constitutional issues. In his appeal, he named the Polk County Board of Supervisors and Polk County, Iowa (hereinafter collectively the "Board") as defendants. Following a hearing in which the parties presented

stipulated testimony and made their respective arguments to the court, the court denied the appeal. The court also denied Bowers's Iowa Rule of...