State of Iowa v. Chris Anthony Ward ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1471
Filed March 8, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHRIS ANTHONY WARD,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Stuart P.
Werling, Judge.
Chris Ward appeals the district court’s denial of his motion to dismiss.
REVERSED AND REMANDED.
Gina M. Messamer and Alfredo G. Parrishof Parrish Kruidenier L.L.P., Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Aaron J. Rogers, Assistant
Attorney General, for appellee.
Heard by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
2
VAITHESWARAN, Judge.
This appeal requires us to determine whether a charge of felonious
misconduct in office may be premised on an ordinance that was not properly
repealed.
I. Background Facts and Proceedings
Chris Ward was terminated from his long-term position as West Liberty
city manager. The State subsequently charged him with felonious misconduct in
office in connection with an instruction he allegedly gave to bill utility customers
pursuant to a rate prescribed by a 1998 ordinance rather than a 2007 ordinance.1
The 1998 ordinance set electricity rates “based upon a Cost of Purchased
Energy Index of 2.4 cents per KW-HR.” See West Liberty, Iowa, Ordinance No.
9-98 (Dec. 15, 1998).2 The 2007 ordinance “repeal[ed] ordinance 1-87, 11-88,
and 9-93”—but not ordinance 9-98—and set forth utility “rates . . . based upon a
Cost of Purchased Energy Index of 3.1¢ per kWh.” See West Liberty, Iowa,
Ordinance 2007-01 (June 15, 2007). The 2007 cost of purchased energy index
effectively lowered the rate charged to utility customers. By reverting to the 1998
index, West Liberty charged a higher rate.
1
The State also charged Ward with third-degree fraudulent practices, a charge that was
subsequently dismissed.
2
The complete language is as follows:
These rates are based upon a Cost of Purchased Energy Index of 2.4
cents per KW-HR, and shall be increased or decreased by a purchased
power adjustment equal to the amount by which the average cost for the
appropriate seasonal billing of electric energy purchased in the preceding
purchase billing period by the West Liberty Municipal Utility is greater or
less than 2.4 cents per KW-HR. The cost of electric energy purchased
shall include the cost of peaking power, that is purchased by the City, in
order to receive a credit from purchased power costs.
3
The State did not assert Ward pocketed the overage, which was ultimately
refunded to customers. The State simply charged that Ward’s reliance on the
1998 ordinance amounted to falsification of a public record. See Iowa Code
§ 721.1(2) (2015).
Ward moved to dismiss the charge. He asserted “[a]ny action based on
[the 1998 ordinance] [was] fundamentally legal” because that ordinance was still
in effect. The State countered by asserting, “The fact that the price [for electrical
service] was changed [in the 2007 ordinance] means that the 1998 ordinance
was repealed.”
In ruling on the motion, the district court mentioned the State’s concession
“that as of the date when the criminal activity [was] alleged, the City of West
Liberty had not enacted an ordinance which specifically repealed Ordinance 9-
98.” The court nonetheless denied the motion to dismiss the felonious
misconduct charge, reasoning, “The only manner in which one can logically
harmonize the two ordinances in this matter is to interpret Ordinance 2007-01 to
be an enactment to amend and change the electrical rate charged by the City of
West Liberty.”
Ward filed an application for interlocutory appeal and discretionary review,
which the Iowa Supreme Court granted.
II. Analysis
Iowa Code section 721.1(2) states, “Any public officer or employee, who
knowingly . . . [f]alsifies any public record, or issues any document falsely
purporting to be a public document” is guilty of a class D felony. Ward reprises
his argument that the State’s felonious misconduct charge cannot stand because
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it is premised on an ordinance “in effect at the time of the conduct alleged
against” him. He notes that the 1998 ordinance was not expressly repealed by
the 2007 ordinance and could not have been impliedly repealed because the
common law “implied repeal” doctrine has been abrogated by statute. See Iowa
Code § 380.2.3
The State essentially concedes the West Liberty City Council failed to
expressly repeal the 1998 ordinance. But the State asserts the ordinance was
“implicitly repealed” by the 2007 ordinance, which provided a different and
“explicit, irreconcilable cost-of-purchased-energy provision.” In the State’s view,
“Ward falsified the electricity billing system” by “setting the electricity rate to the
level prescribed by an implicitly repealed ordinance.”
We need not engage in a broad discussion of the common law “repeal by
implication” doctrine and the claimed statutory abrogation of the doctrine. For
purposes of this appeal, it is sufficient to focus on the specific language of
section 380.2 and whether West Liberty followed its dictates in attempting to
repeal the 1998 ordinance.
As Ward points out, section 380.2 requires a city council to “specifically
identify” an ordinance it intends to repeal. See id. Ordinance 2007-01 did not
specifically identify Ordinance No. 9-98. Accordingly, Ordinance 2007-01 did not
properly repeal Ordinance No. 9-98. It follows that Ordinance No. 9-98 was still
3
Section 380.2 states:
An amendment to an ordinance or to a code of ordinances must
specifically identify the ordinance . . . to be amended, and must set forth
the ordinance . . . as amended, which action is deemed to be a repeal of
the previous ordinance . . . amended.
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in effect when Ward was charged with invoking it. Because it was still in effect,
we conclude reliance on its contents could not be considered falsification of a
record and felonious misconduct in office. Long-standing precedent supports this
conclusion.
As early as 1882, the Iowa Supreme Court considered an ordinance under
which a defendant was arrested, tried, and convicted. See Town of Cantril v.
Sainer, 12 N.W. 753 (Iowa 1882). The court categorically stated, “[W]hen a
conviction is sought under an ordinance of the town, it must be by such an
enactment as reasonably and fairly accords with the law authorizing municipal
corporations to enact and enforce ordinances.” Id. at 753. Characterizing the
ordinance as “fatally defective” for failing to comport with a predecessor version
of section 380.2, the court reversed the conviction. Id.4 Though the
nonconformity simply related to the title of the ordinance, the court stated, “We
cannot disregard this provision of law. It is not unreasonable that when a village
assumes to itself the functions of a municipal corporation, it should be held to a
reasonable compliance with the laws of the state in the enactment of its
ordinances . . . .” Id. at 754.
In Glaser v. City of Burlington, 1 N.W.2d 709, 711-12 (Iowa 1942), a city
defended a firefighter’s lawsuit alleging wrongful deduction of wages by citing an
ordinance that purported to amend the salaries prescribed by another ordinance.
4
Iowa Code section 489 (1880) stated in pertinent part:
[N]o ordinance shall contain more than one subject, which shall be clearly
expressed in its title, and no ordinance or section thereof shall be revised
or amended unless the new ordinance contain the entire ordinance or
section reviewed or amended, and the ordinance or section so amended
shall be repealed.
6
The Iowa Supreme Court concluded the amending ordinance “did not comply
with [a predecessor to section 380.2] and therefore did not change the salaries
fixed by [the original ordinance].” Glaser, 1 N.W.2d at 712. The predecessor
statute stated, “An ordinance revising or amending an ordinance or section
thereof shall specifically repeal the ordinance or section amended or revised, and
set forth in full the ordinance or section as amended or revised.” Id. at 711-12.
The court determined the city made “[n]o attempt . . . at compliance with the plain
provisions of [this] Code section” even though the statute was “mandatory” and
“limit[ed] the power of the city to enact ordinances.” Id. at 712. The court
affirmed the district court’s decision to strike the city’s defense based on the
purported amending ordinance. Id.
In Massey v. City Council of City of Des Moines, 31 N.W.2d 875 (Iowa
1948), a police chief was appointed under the auspices of a city resolution. The
superintendent of public safety filed suit against the city to test the legality of the
resolution. Massey, 31 N.W.2d at 877. The Iowa Supreme Court held the
resolution conflicted with city ordinances. Id. at 880. The court stated “these
ordinances were not repealed, amended or otherwise affected by passage of the
resolution” because they were not “repealed or amended . . . in the manner
provided by [a predecessor statute to section 380.2].” Id. at 881.
Together, these opinions mandate dismissal of the felonious misconduct
charge. Although the language of the predecessor statutes on passage of
ordinances differed from the version in effect when Ward was charged, the effect
was the same: ordinances that failed to comport with the statute were
unenforceable (Sainer and Glaser) and an ordinance that was improperly
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repealed was enforceable (Massey). See also City of Vinton v. Engledow, 140
N.W.2d 857, 859, 868 (Iowa 1966) (reversing conviction for a traffic offense
charged under a city ordinance, reasoning, “If it be the fact that the defendant
was charged under an invalid ordinance, this conviction cannot be sustained,
regardless of our view of the factual situation”); City of Osceola v. Blair, 2 N.W.2d
83, 83, 85 (Iowa 1942) (affirming district court conclusion that an ordinance
prohibiting solicitation and punishing solicitors with a $100 fine and costs was
invalid); State v. Livermore, 185 N.W. 1, 2 (Iowa 1921) (reversing conviction for
disorderly conduct and disturbance of the peace under an ordinance that was
held to violate a statute); Bradley v. City of Centerville, 117 N.W. 968, 969 (Iowa
1908) (“No authority is cited, and we think none can be found, in support of the
proposition that the city ordinance regularly and formally adopted may be
repealed otherwise than by another ordinance duly enacted.”).
These holdings makes sense. Ordinances must “be published in a certain
manner, and thereafter stand as the law, of which all must take notice.”
Cascaden v. City of Waterloo, 77 N.W. 333, 336 (Iowa 1898). If matters were
adopted by less formal means such as by resolution, “the public would not be
informed of amendments, repeals, or suspensions.” Id.; see also Indep. Sch.
Dist. of Des Moines, 180 N.W. 157, 158 (Iowa 1920) (“The provision of [a prior
version of chapter 380] which requires that no ordinance shall contain more than
one subject, which shall be clearly expressed in the title, is mandatory, and a
limitation upon the power of city councils to enact ordinances. The failure of the
title to clearly express the subject of the ordinance is fatal to its validity.” (internal
citations omitted)); Rocho v. Boone Elec. Co., 140 N.W. 193, 193 (Iowa 1913)
8
(“The intent [of the statute requiring inclusion of the entire ordinance or section
being revised or amended] is that the amending ordinance or section shall be
complete in itself, and that the former ordinance or section shall be repealed.
The purpose of this statute is to avoid the confusion and the frequent
contradiction which results from amendments which purport to add to or take
from an existing ordinance mere words or phrases.”).
Town of Decorah v. Dunstan Bros., 38 Iowa 96 (1874), does not alter our
conclusion. There, the court was asked to determine whether an amended town
charter repealed a provision of the original charter. Dunstan Bros., 38 Iowa at
98. The court concluded the amendment comported with the then existing
statute on passage of ordinances. Id. at 98-99. West Liberty’s amending
ordinance—Ordinance 01-2007, like the ordinances in Sainer, Glaser, and
Massey—did not comport with the statute on passage of ordinances and,
accordingly, was ineffective in repealing the 1998 ordinance.
The State nonetheless hangs its hat on the following language in Dunstan:
[W]hile repeals by implication are not favored, yet since section
twelve of the amended charter embraces and revises the whole
subject matter of that section in the original charter, there arises a
clear implication of the legislative intent, that the former shall take
the place of, and repeal the latter.
Id. at 98. This language is dicta in light of the court’s conclusion that the town
complied with the requirements of the statute in amending the charter.
The State conceded West Liberty’s 2007 ordinance did not properly repeal
the 1998 ordinance, yet charged Ward with a crime predicated on repeal of the
1998 ordinance. This was error. We reverse the district court order denying
9
Ward’s motion to dismiss the felonious misconduct in office charge and remand
for dismissal of that charge.
REVERSED AND REMANDED.