State ex rel. Johnson v. Allen, 96-635
| Decision Date | 17 September 1997 |
| Docket Number | No. 96-635,96-635 |
| Citation | 569 N.W.2d 143 |
| Parties | STATE of Iowa, ex rel. Steve JOHNSON, As County Attorney for Jasper County, Iowa, Appellee, v. Garrett ALLEN, II, As Mayor of Mingo, Iowa, Appellant. |
| Court | Iowa Supreme Court |
Richard E.H. Phelps II, Des Moines, for appellant.
R. Steven Johnson, County Attorney, for appellee.
Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, NEUMAN, and TERNUS, JJ.
The City of Mingo has relied on the Jasper County sheriff's department to provide police protection for its residents. The county attorney for Jasper County requested that the City enter into an intergovernmental agreement to pay the county for police services or hire its own law enforcement officer. When the City did neither, the county attorney brought this action for a declaratory judgment and a writ of mandamus ordering the City's mayor to hire a police chief or enter into an intergovernmental agreement. The mayor appeals from the district court's order granting the requested relief. We conclude that although the county attorney is correct in his position that the City must provide police protection to its residents through locally-hired police officers or through an intergovernmental agreement, the duty to do so rests with the city council, not the mayor. Therefore, we reverse.
The parties have stipulated to the facts. The City of Mingo, Iowa is an incorporated municipality with a population of approximately 250 people located in Jasper County, Iowa. It is governed by the mayor-council form of government. See Iowa Code ch. 372 (1995). The City has not had a law enforcement officer for several years and instead has relied on the Jasper County sheriff for police protection. A dispute arose between the City and the sheriff concerning compensation for the services of the sheriff's department. Steve Johnson, the Jasper County attorney, requested appellant Garrett Allen, II, the Mayor of Mingo, Iowa, either to enter into an intergovernmental agreement to pay for the County's police services or to hire a police chief for the City. When the mayor refused to do so, the county attorney brought this action on behalf of the State of Iowa.
In this action, the county attorney sought (1) a declaratory judgment that the mayor has a statutory duty to appoint a police chief unless an intergovernmental agreement provides for police protection, see Iowa Code § 372.4, and (2) a writ of mandamus compelling the mayor's compliance with section 372.4. The mayor's motion to dismiss on the basis the county attorney lacked standing to bring this action was denied by the district court. Following a hearing on the merits of the petition, the court ordered the mayor to appoint a police chief or enter into an intergovernmental agreement. The mayor appealed.
We review the district court's ruling on a motion to dismiss for correction of errors of law. In re Estate of Voss, 553 N.W.2d 878, 880 (Iowa 1996). Our review of the court's mandamus order is de novo. Nowlin v. Scurr, 331 N.W.2d 394, 396 (Iowa 1983); see Iowa Code § 661.3 ().
The mayor argues the Jasper County attorney does not have standing to pursue a mandamus action against the mayor for two reasons: (1) the county attorney does not have a sufficient interest in this matter to entitle him to pursue it on behalf of the State; and (2) neither the State nor the County is a real party in interest as required by Iowa Rule of Civil Procedure 2. We find no merit in either contention.
Iowa's mandamus statute provides that an order of mandamus may be issued upon the petition "of the state by the county attorney, when the public interest is concerned." Iowa Code § 661.8 (emphasis added). This statute obviously contemplates the "ex rel." format used by the Jasper County attorney in this case.
Of course, the county attorney's action is appropriate only when "the public interest is concerned." See id. We think the public interest is involved here because the taxpayers of Jasper County have a pecuniary interest in the mayor's compliance with section 372.4. As the situation now stands, Jasper County loses revenue by providing the City of Mingo with police protection without the benefit of an intergovernmental agreement under which the City agrees to pay for these services. Obviously, the County's resources could become even more strained if other cities in Jasper County were to follow the lead of Mingo and rely on the County for police protection. Because this mandamus action addresses a matter of public interest, we conclude the county attorney properly filed the mandamus petition.
That leaves only the mayor's contention that this action was not brought by the real party in interest. Iowa Rule of Civil Procedure 2 requires that every action "be prosecuted in the name of the real party in interest." Rule 2 goes on to state that "a party specially authorized by statute ... may sue in his own name without joining the party for whose benefit the action is prosecuted." We have already held that the county attorney was authorized by statute to bring this action on behalf of the State. Therefore, the requirements of rule 2 have been met.
We affirm the district court's denial of the mayor's motion to dismiss. The county attorney does have standing to pursue this mandamus action.
In seeking mandamus relief, the county attorney relies on section 372.4, which governs cities having the mayor-council form of government: "The mayor ... shall appoint the marshal or chief of police except where an intergovernmental agreement makes other provisions for police protection or as otherwise provided in section 400.13 [civil service]." 1 The county attorney claims this statute requires that the mayor appoint a police chief if the city council has not otherwise provided for police protection. The mayor argues this interpretation is incorrect for two reasons. First, he contends the decision whether to provide any police protection at all is discretionary, and unless a city chooses to furnish such protection to its residents, the mayor has no duty to appoint a police chief. Alternatively, the mayor claims the decision on how to provide police services is left to the city council and section 372.4 addresses only the manner in which a police chief will be appointed, once the council has decided that is the way it will provide police protection. Because the Mingo city council has not approved the hiring of a police chief, the mayor submits he has no duty to appoint one.
A. City's discretion to provide police protection to its residents. The issue of a city's discretion to provide or not provide police services is answered by examining the role of city government as envisioned by the legislature. Chapter 368 establishes procedures and conditions for the incorporation, consolidation or discontinuation of cities, and for annexation of territory to or severance of territory from an existing city. A petition requesting incorporation, discontinuance or boundary adjustment must include a "[d]escription of existing municipal services, including but not limited to water supply, sewage disposal, and fire and police protection." Iowa Code § 368.11 (emphasis added).
Section 368.14 provides for the appointment of a committee to consider such petitions. This committee is precluded from approving an incorporation "unless it finds that the city to be incorporated will be able to provide customary municipal services within a reasonable time." Id. § 368.17(1) (emphasis added). Similarly, the committee may not approve an annexation of land to an existing city unless "the committee finds that the city will be able to provide to the territory substantial municipal services and benefits not previously enjoyed by such territory." Id. § 368.17(4) (emphasis added).
Clearly, police protection is a "municipal service" as that phrase is used in chapter 368, and our cases reflect that fact. See Citizens of Rising Sun v. Rising Sun City Dev. Comm., 528 N.W.2d 597, 600 (Iowa 1995) (); Dickinson County v. City Dev. Comm., 521 N.W.2d 466, 469-70 (Iowa 1994) (); City of Decorah v. Peterson, 203 N.W.2d 629, 631 (Iowa 1973) (). Thus, chapter 368 requires all cities to provide police protection as one of the municipal services extended to city residents. See Iowa Code § 362.9 (); see also id. § 362.8 (). It would be illogical to interpret chapter 368 to require a showing the city or proposed city can provide police protection to its residents as a condition of annexation or incorporation, but not to require that the city actually do so. See United Fire & Cas. Co. v. Acker, 541 N.W.2d 517, 519 (Iowa 1995) ().
Based on our interpretation of chapter 368, we reject the mayor's argument that the City of Mingo has discretion to forgo altogether any police protection for its residents. Giving the City such discretion would lead to absurd results, as a close examination of the mayor's rationale illustrates. The mayor argues the City can choose to provide no police services to its residents because...
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Treimer v. Lett, 97-513
...motions to dismiss. Our review of motions to dismiss is for correction of errors of law. Iowa R.App. P. 4; State ex rel. Johnson v. Allen, 569 N.W.2d 143, 144 (Iowa 1997). A motion to dismiss is not directed to the discretion of the court, but rather is based on legal grounds. See Renander ......