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 those powers expressly granted by the legislature.
City of Clinton v. Cedar Rapids & Missouri River R.R.,
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,
*197 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 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 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 *198 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 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.
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 signa-tors of the petition nor the voters in the election, if held, would understand what *199 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 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.,
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.
*200 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 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,
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 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 *201 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. Further, all of the cases involved judicial intervention in different statutory and factual contexts.
Petersen v. Davenport Cmty. Sch. Dist.,
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 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 the City has no *202 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 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,
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 Commonwealth 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,
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,
*203
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.,
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.
8. 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,
We have further observed in the municipal law context that rules authorizing declaratory judgments are broad and should be applied liberally.
Bechtel,
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,
More recently, in
Polk County,
The subsequent case of
Citizens,
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,
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,
In addition, most state courts allow pre-election 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 Comts 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 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,
In addition, where facial attacks on constitutional grounds are presented, the
*205
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,
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 pre-election review to cases where the illegality is “clear,” “compelling,” or “manifest.”
Alaska Action Ctr. v. Municipality of Anchorage,
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,
Based on our review of the cases, we adopt the consensus 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.,
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
*206
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,
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,
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.,
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 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.
*207
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,
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,
The Iowa legislature has allowed the cities a degree of discretion in determining who appoints city officials. For example, Iowa Code section 372.13(4) provides that “[ejxcept 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,
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,
*208 More importantly, however, the legislature has addressed the issue of how these appointed officials may be terminated. In Iowa Code section 372.15, the legislature has provided that “[ejxcept 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,
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. Conine v. Hunter,
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 *209 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.
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,
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.,
It is not clear that the doctrine of severance should apply in the context of pre-election substantive review of a proposed municipal charter amendment.
Compare Bennett v. Drullard,
In any event, even if the doctrine of severance did apply, it would not be the
*210
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,
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 372.9to amendments that relate to the “form of government.” Iowa Code section 372.9states 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.
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 372.10dramatically 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,
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 inclusion, moreover, of the phrase “form of government” in Iowa Code section 372.9 was deliberate.
Ashby v. School Twp. of Liberty,
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,
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,
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
*212
charter cannot be an ordinance in masquerade. For instance, in
Cheeks,
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 Firefighters, Local Union No. 936,
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,
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 *213 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 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 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 *214 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.
Notes
. Because 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.,
. Iowa 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).
. Iowa 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.