POLK COUNTY BOARD OF SUPERVISORS, Martha Willits, Chair, John Mauro, Jack Bishop, Robert Kramme, George Mills, and Tom Parkins, Polk County Auditor, Appellants, v. POLK COMMONWEALTH CHARTER COMMISSION and David Wilkinson, Chair, Appellees.
No. 94-904.
Supreme Court of Iowa.
Oct. 14, 1994.
As Amended Oct. 18, 1994.
522 N.W.2d 783
Lee H. Gaudineer, Jr., of Austin, Gaudineer, Austin, Salmons & Swanson, Des Moines, for appellees.
SNELL, Justice.
This is an appeal by the Polk County Board of Supervisors (Board or Board of Supervisors) and the Polk County Auditor from a final judgment granting a writ of mandamus sought by the Polk County Charter Commission (Commission or Charter Commission). The district court ordered the Board through the writ to direct the Polk County Auditor and the commissioner of elections to place on the ballot the question of adopting a proposed commonwealth charter reorganizing Polk County government. This ballot would be presented on November 8, 1994 at the general election. The writ has been executed and the order carried out placing the question on the general election ballot subject to our resolution of this appeal.
The Board and the county auditor brought a declaratory judgment action seeking a ruling that the charter, proposed by the Commission, is legally defective and ineligible to be placed on the election ballot. The Commission counterclaimed for a writ of mandamus to compel the Board to submit the proposed charter to the county auditor for placement on the election ballot. The district court determined there were no legal impediments to placing the proposed charter on the ballot, ordered the issuance of the writ, and dismissed the petition. On appeal, the question is whether there are legal deficiencies in the charter barring it from receiving the referendum of the people. We affirm.
I. Standard of Review
The district court tried this case at law. We review the court‘s determinations for errors at law and defer to its findings of fact if substantial evidence supports them.
II. Factual Background
The material facts in this case are stipulated. The Commission was created pursuant to
In April 1993, after the Commission‘s lobbying efforts failed, it began work on a new draft charter. The Commission split into committees to study in detail the key provisions of a 1992 draft rejected by the Commission.
On December 27, 1993, the Commission approved a draft charter and submitted it, accompanied with its final report, to the Board. The report represented the culmination of a twenty-month study by the Commission, twenty-eight Commission meetings and eighty committee meetings. It acknowledged the assistance received from the Polk County Board of Supervisors, Polk County staff and the 100 different members of three charter commissions and the greater Des Moines area commission. The Commission directed the Board to forward the proposed charter to the county auditor for placement on the November 1994 ballot. The Board refused, claiming the proposed charter had several legal defects barring its procession to the ballot.
The proposed charter seeks to restructure county government. It would replace the five-member Board with a seven-member “Polk Commonwealth Council,” a commonwealth mayor, and a county manager. The elective offices of auditor, recorder, sheriff, and treasurer would be eliminated and their powers and duties would be combined with the new legislative council for the purpose of reorganizing their duties and functions. The commonwealth mayor would be the presiding officer and a voting member of the Council; the mayor would recommend appointments to the Council and represent the commonwealth before organizations and governmental agencies. The Commonwealth Council would have the powers of and perform the duties of a traditional board of supervisors. It also would reorganize and be responsible for the duties and functions of the auditor, recorder, sheriff, and treasurer. The commonwealth may also agree to deliver municipal services to member cities as recommended by a commission composed of a commonwealth mayor and the mayors of all joining cities in the commonwealth (Mayors’ Commission). The Des Moines and Polk County Assessors’ offices would be merged.
A majority vote of all qualified electors in Polk County would be necessary to adopt the charter and create the commonwealth form of government. A separate affirmative vote would be required in each city to determine if that city would join the commonwealth for the purpose of jointly receiving selected municipal services from the commonwealth. A city that does not initially join may join at a later date. A city that has joined may withdraw.
After a service is transferred to the commonwealth, it would be under the control of the Commonwealth Council. The Council would levy the taxes to pay for this service. The Mayors’ Commission would no longer have any responsibility. A service would not be transferred to the commonwealth without a majority vote of the Commonwealth Council.
The Board claims the proposed charter is legally deficient in three ways. First, it claims a charter provision calling for the creation of a commonwealth Mayors’ Commission violates the “one person, one vote” principle mandated by the federal and state constitutions. Second, the Board argues the proposed charter does not comply with several provisions of
A. Composition and Function
Article VII of the proposed charter provides for the creation of a Mayors’ Commission. The Mayors’ Commission‘s primary purpose is to study, evaluate, and recommend the transfer of municipal services to the control of the commonwealth.
The Mayors’ Commission would be composed of the commonwealth mayor, the mayor of each commonwealth member, and the mayor of other cities having fifty percent or more of their population or area within the commonwealth. Mayors of non-commonwealth member cities would have no voting power on the Mayors’ Commission.
Each mayor of a city that joins as a commonwealth member would be entitled to one vote on the Mayors’ Commission. According to the 1990 decennial census the population of Polk County is 327,140 persons. The populations of the cities within Polk County that could be represented on the Mayors’ Commission vary widely. These cities’ populations are as follows:
| Alleman | 340 |
| Altoona | 7,191 |
| Ankeny | 18,482 |
| Bondurant | 1,584 |
| Clive | 7,462 |
| Des Moines | 193,187 |
| Elkhart | 388 |
| Grimes | 2,653 |
| Johnston | 4,702 |
| Mitchellville | 1,670 |
| Pleasant Hill | 3,671 |
| Polk City | 1,908 |
| Runnells | 306 |
| Sheldahl | 315* |
| Urbandale | 23,500 |
| West Des Moines | 31,702 |
| Windsor Heights | 5,190 |
| Unincorporated Polk County | 23,084 |
* More than fifty percent of Sheldahl‘s area lies outside Polk County.
The functions of the Mayors’ Commission are listed in Article VII, sections 3-10 of the proposed charter. The Commission would have the powers and duties to:
- Evaluate municipal services of the commonwealth government and propose establishment of service areas and changes in municipal services of the commonwealth government;
- Identify the service area to be transferred, including the description of the municipal service, geographical area to receive the service, and the service level to be provided;
- Estimate the cost and property tax levy for each service area;
- Identify the city employees needed to provide the service by the commonwealth government;
- Identify real and personal property to be transferred from member cities to the commonwealth;
- Evaluate the assumption, if any, of current indebtedness for the assets to be transferred to the commonwealth and its allocations to each member city;
- Compute the first year property tax levy that the commonwealth government will levy for a shared service;
- Call upon commonwealth boards, commissions, agencies, and special purpose districts to provide studies, statistics, and information pertaining to municipal service delivery;
- Receive grants, information, and aid from private or nonprofit organizations for studies and evaluations concerning municipal service by the commonwealth government.
The Mayors’ Commission (or the Commonwealth Council, city council of a commonwealth member, or the voters by petition) may, by resolution, identify municipal services for study and possible transfer to the commonwealth. If the Mayors’ Commission then finds the transfer proposal meets the goals of the commonwealth, it can initiate a study of the transfer.
After the study is completed, the Mayors’ Commission may recommend to the Commonwealth Council the transfer of a municipal service. This is done by issuing a report on the study, accompanied by a “resolution of transfer” outlining key elements of the proposed transfer. A resolution of transfer cannot be forwarded to the Commonwealth Council except by majority vote of the Mayors’ Commission.
The joint committee would be composed of two Commonwealth Council members appointed by the mayor and two Mayors’ Commission members elected by its voting members. If the committee is able, within two months of its organization, to achieve a resolution, the resolution goes back through the entire transfer approval process. If the joint committee resolution fails to receive the approval of the Mayors’ Commission or the Commonwealth Council, the proposed transfer resolution dies.
B. One Person, One Vote Principle
After laying the groundwork in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the United States Supreme Court established the one person, one vote principle in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). 3 Ronald D. Rotunda & John E. Nowack, Treatise on Constitutional Law § 18.35 (2d ed. 1992). This rule requires that
whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election.
Hadley v. Junior College Dist., 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45, 50-51 (1970); Avery v. Midland County, 390 U.S. 474, 479, 88 S.Ct. 1114, 1117, 20 L.Ed.2d 45, 50-51 (1968); see Driskell v. Edwards, 518 F.2d 890, 893 (5th Cir.1975). The goal of this rule is to ensure that in elections for bodies performing governmental functions, some individuals’ votes do not carry greater weight than others‘. Reynolds, 377 U.S. at 562-63, 84 S.Ct. at 1382, 12 L.Ed.2d at 527-28.
In determining whether the one person, one vote principle applies to the establishment of a given body, the rule requires a threshold determination of whether the body performs governmental functions. Driskell, 518 F.2d at 893; Opinion of the Justices, 294 Ala. 571, 319 So.2d 699, 705 (1975) (en banc); Millsap v. Quinn, 757 S.W.2d 591, 594-95 (Mo.1988) (en banc). In order to “govern,” an entity must have the power to control, determine, guide, and regulate workings or operations of the government. Millsap, 757 S.W.2d at 595.
If the entity at issue does hold governmental power, the one person, one vote rule applies unless either of two circumstances exist. First, the rule does not apply if the members of the body are appointed rather than elected. Hadley, 397 U.S. at 54-56, 90 S.Ct. at 794-95, 25 L.Ed.2d at 49-51. Second, the principle does not apply to an entity if: (1) it exercises only narrow, limited governmental powers; and (2) its activities disproportionately affect a specific group of individuals. Ball v. James, 451 U.S. 355, 364, 101 S.Ct. 1811, 1817-18, 68 L.Ed.2d 150, 158-59 (1981); Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 728, 93 S.Ct. 1224, 1229, 35 L.Ed.2d 659, 666 (1973); Hadley, 397 U.S. at 56, 90 S.Ct. at 795, 25 L.Ed.2d at 51; Cunningham v. Municipality of Metro. Seattle, 751 F.Supp. 885, 890-91 (W.D.Wash.1990).
The Charter Commission argues that the one person, one vote principle does not govern the establishment of the Mayors’ Commission because the Mayors’ Commission does not perform general governmental functions. The Charter Commission stresses that the functions of the Mayors’ Commission are not legislative and as a result, the one person, one vote rule does not apply.
The Board asserts that the one person, one vote principle does apply to this case because the Mayors’ Commission performs governmental functions and is an elected body. The Board further contends that any reference by the Charter Commission and the district court to legislative versus administra
The Board asserts that Board of Estimate of City of New York v. Morris, 489 U.S. 688, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989), controls this matter and demonstrates that the one person, one vote principle governs the establishment of the Mayors’ Commission. Board of Estimate involved a New York City board which consisted of three members elected at large and each of the elected presidents of the city‘s five boroughs. Id., 489 U.S. at 690, 109 S.Ct. at 1436, 103 L.Ed.2d at 725. The United States Supreme Court held that the one person, one vote principle applied to the board because it was an elected body, it held a “significant range of functions common to municipal governments,” and it had “considerable authority to formulate the city‘s budget.” Id., 489 U.S. at 694-96, 109 S.Ct. at 1438-39, 103 L.Ed.2d at 728-29. Since the borough presidents held equal votes to each other despite the significant difference in the size of their respective boroughs, the Court held that the board‘s apportionment was unconstitutional. Id., 489 U.S. at 694, 109 S.Ct. at 1438, 103 L.Ed.2d at 727-28.
The New York Board of Estimate had vast powers that pervasively invaded the body politic of the city to control its life‘s blood. A list of its powers is as follows:
A. The Board of Estimate exclusively
- determines the use, development and improvement of property owned by the City;
- approves standards, scopes and final designs of capitol [sic] projects for the City;
- negotiates and enters into all contracts on behalf of the City;
- negotiates and approves all franchises that are granted by the City;
- grants leases of City property and enters into leases of property for City use;
- sets the rates for purchases of water from the City;
- sets the charges for sewer services provided by the City;
- approves or modifies all zoning decisions for the City; and
- sets tax abatements.
B. The Board of Estimate acting in conjunction with the New York City Council
- recommends and approves the expense budget of the City without the participation of the Mayor;
- recommends and approves the capital budget of the City without the participation of the Mayor;
- periodically modifies the budget of the City;
- confers with the City Council when agreement on the budget between the two bodies is not reached;
- overrides mayoral vetoes of budget items without the participation of the Mayor; and
- holds hearings on budgetary matters.
C. The Board of Estimate also
- administers the Bureau of Franchises;
- administers the Bureau of the Secretary;
- holds public hearings on any matter of City policy within its responsibilities whenever called upon to do so by the Mayor or in its discretion for the public interest;
- holds hearings on tax abatements that are within the discretion of City administrative agencies; and
- makes recommendations to the Mayor or City Council in regard to any matter of City policy.
Id., 489 U.S. at 695 n. 4, 109 S.Ct. at 1439 n. 4, 103 L.Ed.2d at 728 n. 4.
In contrast, a review of the powers and duties of the Mayors’ Commission listed in Article VII shows that its quiddity is adviso
The Mayors’ Commission is more similar in function to the board at issue in Millsap. Millsap involved the establishment of a Board of Freeholders which was to study the St. Louis city and county governments and recommend a plan for their reorganization to voters. Millsap, 757 S.W.2d at 592-93. The Missouri Supreme Court held that the one person, one vote principle did not apply to the formulation of the Board. Id. at 595. Even though the members of the Board were appointed, the court based its decision on a threshold determination that the Board held “no general governmental powers.” Id. The court noted:
It “cannot enact any laws governing the conduct of citizens, nor does it administer such normal functions of government as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services.” It can recommend ad valorem property taxes and sales taxes, but it cannot levy and collect them.
Id. (quoting Ball, 451 U.S. at 366, 101 S.Ct. at 1818, 68 L.Ed.2d at 160) (citation omitted).
The agenda conferred on the Mayors’ Commission does not sound a tick of constitutional moment next to the powers exercised by the New York Board of Estimate. The role of the Mayors’ Commission, unlike the Board of Estimate, does not “situate the board comfortably within the category of governmental bodies whose ‘powers are general enough and have sufficient impact throughout the district’ to require that elections to the body comply with equal protection strictures.” Board of Estimate, 489 U.S. at 696, 109 S.Ct. at 1439, 103 L.Ed.2d at 729 (quoting Hadley, 397 U.S. at 54, 90 S.Ct. at 794, 25 L.Ed.2d at 49). In reality, the role of the Board of Estimate more nearly resembles that of the Commonwealth Council in the case at bar, whose equal representation factor has apparently satisfied all constitutional concerns of the Board of Supervisors.
While we agree that the test is not whether the Mayors’ Commission exercises administrative or legislative powers, we do not believe that the Mayors’ Commission can exercise powers such as those of concern in Reynolds and its progeny. Like the Board of Freeholders in Millsap, the Mayors’ Commission does not exercise general governmental powers. We therefore hold that the one person, one vote constitutional principle is not violated by the structure of the proposed commonwealth charter.
IV. Charter Compliance with Iowa Code Section 331.261
A. Powers of the Charter Commission
In Merriam v. Moody‘s Executors, 25 Iowa 163, 170 (1868), Chief Justice John F. Dillon established a rule for the determination of local government power which came to be known as the “Dillon Rule.” City of Des Moines v. Master Builders, 498 N.W.2d 702, 703 (Iowa 1993). This rule held that municipal and county governments could only possess and exercise powers which were: (1) expressly granted by the legislature; (2) necessarily or fairly implied in or incident to the powers expressly granted; and (3) those indispensably essential—not merely convenient—to the declared objects and purposes
The effect of the Dillon Rule was to, “render cities [and counties] incapacitated in numberless matters of vital importance to local governments.” Master Builders, 498 N.W.2d at 703. The legislature and the electors responded by adding “home rule” amendments to the Iowa Constitution in 1968 and 1978 which removed the Dillon doctrine from Iowa law.
The county home rule amendment expressly provides, “[t]he proposition or rule of law that a county or joint county-municipal corporation government possesses and can exercise only those powers granted in express words is not a part of the law of this state.”
The parties to this matter have entered into a stipulation which provides that the Charter Commission does not have home rule authority and that the home rule amendments to the Iowa Constitution are not applicable to the Commission. The Board therefore asserts that, as a body of county government, the Commission is subject to the Dillon Rule and holds only those powers expressly granted by or necessarily or fairly implied in the relevant statutes. As a result, the Board contends that we must strictly construe those statutes which delineate the Commission‘s power. The Board argues that a narrow reading of the relevant statutes will demonstrate that in drafting the commonwealth charter, the Commission has exceeded those powers the legislature has expressly granted to it.
The Commission accepts the stipulation but argues that the Dillon Rule does not control the limits of its authority because it does not perform governmental functions. The Commission instead asserts that we should construe statutes delineating the Commission‘s authority liberally because the statutes are remedial in nature and a liberal interpretation would best satisfy the purposes of the legislation.
The district court agreed with the Commission and held that the Dillon Rule did not control the extent of the Charter Commission‘s authority because the Commission did not exercise governmental power. The district court therefore held that a liberal construction which would accomplish the legislature‘s purposes was appropriate for statutes dealing with Commission powers.
When courts have considered application of the rule, the only determinative factor appears to have been whether the entities in question were “creatures of the state legislature.” Gritton, 73 N.W.2d at 815. The Board asserts that since the legislature expressly subjected the Commission to the
We note the general rule that litigants may not bind the supreme court with stipulations as to law. State v. Aumann, 236 N.W.2d 320, 322 (Iowa 1975); Zeigler v. Simmons, 353 Mich. 432, 91 N.W.2d 819, 822 (1958); 73 Am.Jur.2d Stipulations § 5, at 539 (1974). The propriety of this rule is especially clear when the controversy at issue involves important public interests. North Platte Lodge 985 v. Board of Equalization, 125 Neb. 841, 252 N.W. 313, 314 (1934); 73 Am.Jur.2d Stipulations § 5, at 540. We will not be bound by a stipulation regarding statutory and constitutional interpretation.
The district court, in its excellent analysis of the legal questions prompted by the commonwealth charter, referred to language in State v. Fairmont Creamery Co., 153 Iowa 702, 711, 133 N.W. 895, 899 (1911), that it characterized as prophetic. Although springing from a constitutional question, the precept announced is equally applicable to the statutory construction issues in the case at bar, where we are charged with the re
The Constitution was intended to announce certain basic principles to serve as the perpetual foundation of the state. It was not intended to be a limitation upon its healthful development, nor to be an obstruction to its programs. New days bring new problems. Legislation must meet these problems as they come; otherwise our plan of government must prove inadequate. Manifestly, we ought not to be swift to adopt such a technical or strained construction of the Constitution as would unduly impair the efficiency of the legislature to meet its unavoidable responsibilities.
Id., 153 Iowa at 711, 133 N.W. at 899.
We therefore hold that the county home rule amendment,
B. Statutory Provisions
1. Process for Transfer of Services
The community commonwealth charter shall provide for the following:
....
10. A process by which the governing body of the community commonwealth and the governing bodies of the member cities provide by mutual agreement for the delivery of specified services to the community commonwealth.
The Board asserts that the charter violates this provision because it does not provide a method for mutual agreement between each member city council and the Commonwealth Council on the transfer of services. The Charter Commission argues that the Mayors’ Commission satisfies the requirement of
The term “process” means “a particular method or system of doing something, producing something, or accomplishing a specific result.” Webster‘s Third New International Dictionary 1808 (1993). The result to which the legislature refers in
The legislature is well aware that Iowa cities are empowered to act variously by decisions of a mayor, a city council, or through other forms of government. By not stating, as it might have in
We also note that the construction urged by the Board runs counter to the liberal interpretation of this remedial legislation that we embrace in order to satisfy its purpose. To read into
2. Office of Commonwealth Mayor
Article IV of the charter provides for the creation of a “commonwealth mayor.” Among other functions, the mayor would hold the power to: (1) preside over the Commonwealth Council; (2) recommend appointment of the commonwealth manager, legal counsel, and clerk after consulting with the Council; (3) advise the manager during preparation of the annual budget; (4) represent the commonwealth at functions and before organizations and governmental agencies; and (5) appoint the members of all commonwealth boards and commissions subject to consultation with and a majority vote of approval by the Commonwealth Council. The mayor would be elected at large to a four-year term.
The Board asserts that the relevant statutes do not authorize the creation of the office of commonwealth mayor and specifically that the creation of such an office violates
The Commission asserts that
The Board argues that the fact that the popularly elected mayor would preside over the council violates
2. An alternative form of county government ... may include provisions for any of the following:
....
b. A supervisor representation plan for the county which may differ from the
supervisor representation plans as provided in division II, part 1. ....
d. The method of selecting officers of the board and fixing their terms of office which may differ from the requirements of
sections 331.208 through331.211 .
The fact that the mayor may have greater powers than other supervisors in some areas is not fatal to the formulation because
The fact that the Commission failed in its lobbying efforts does not demonstrate that the existing statutes do not authorize the office of commonwealth mayor. We are aware that in the combative and compromising process of legislating there are many reasons for a failure of legislation to pass other than a rejection on the merits. Even without a fortified legislative directive,
3. Transfer of Taxing Authority
The Commission responds by arguing that we should read the reference in
“Formula” is not limited in definition to “a group of numerical symbols.” In fact, both parties in their briefs note that one definition of “formula” is “a conventionalized statement intended to express some principle esp[ecially] as a basis for ... action.” Webster‘s Third New International Dictionary 894 (1993).
Article VII of the Charter provides a detailed methodology for the transfer of tax authority from the cities to the commonwealth. First, the Commonwealth Council, Mayors’ Commission, city council of a member city, or group of commonwealth voters may identify a service for proposed transfer. If the Mayors’ Commission decides that transfer of this service will meet the Article VII, section 1 efficiency goals, it then initiates a study of the service.
Article VII, section 5 provides numerous factors which the Commission must analyze in determining the tax levy necessary to support the service. If the Commission decides to recommend the transfer of the service, it must present the report along with a “resolution of transfer” to the Commonwealth Council. The resolution must include
If the Council accepts the resolution, the charter requires that the tax levy for the first fiscal year for delivery of the service will be that included in the resolution. After the first year, the Council estimates the cost and levy required to fund the service.
Article VII clearly establishes a formula for the transfer of tax authority from the cities to the commonwealth. As the district court properly noted, in the context of a new form of government, a precise mathematical formula would be impractical if not impossible.
V. Compliance with Public Hearing Requirement
The Board argues that the Commission violated
2. Within nine months after the organization of the commission, the commission shall submit a preliminary report to the board, which report may include the text of the proposed charter.... Sufficient copies of the report shall be made available for distribution to residents of the county who request a copy. The commission shall hold at least one public hearing after submission of the preliminary report to obtain public comment. Iowa law requires that county bodies substantially comply with open meetings laws.
Substantial compliance requires that the Commission‘s actions must have been consistent with the meaning and purpose of the open meetings provisions. KCOB/KLVN v. Jasper County Bd. of Supervisors, 473 N.W.2d 171, 176 (Iowa 1991).
The Commission submitted its preliminary report to the Board of Supervisors on January 28, 1993. The Commission subsequently held a public hearing on November 9, 1993. The public notice of the hearing stated that its purpose was to obtain public comment on the recently completed draft of the charter.
The Board argues that the Commission did not comply with the statute because there is no proof that copies of the preliminary report were available for the public at the hearing. The statute, however, does not require that copies of the report be available at the hearing, it merely states that “copies of the report shall be made available.”
In addition, the statute does not specify that the Commission must hold a hearing to receive public comment on the preliminary report, but instead merely states that after submission of the preliminary report, the Commission must hold a public hearing to obtain public comment.
The district court correctly found that the Commission acted within its statutorily-mandated powers in creating the proposed charter and in finding the charter free from legal
AFFIRMED.
All Justices concur except CARTER and ANDREASEN, JJ., who concur in part and dissent in part and LAVORATO, J., who takes no part.
CARTER, Justice (concurring in part; dissenting in part).
Although some would consider any judicial action to invalidate the proposed commonwealth charter, in whole or in part, to be an unwarranted intrusion into the political process, it should not be viewed in that manner. The issues presented in this declaratory judgment action relate to the legality of specific portions of the proposed charter rather than the merits of commission charter government as such. A substantial change in the form of local government is a serious issue that should not be taken lightly. Manifestly, if there are statutory requirements to be observed in this process, those requirements should be met. If the proposed charter does not conform to the enabling statutory law, this court has an obligation to so rule. These are questions that, if not decided now, would in all likelihood become the basis of legal challenges lodged after the time and expense of an election on this particular plan.
Perhaps the appellants have made a tactical error by lodging a series of infirm legal challenges that have directed the scrutiny of the majority of the court away from a clearly meritorious challenge to the proposed charter. This relates to the requirement of subsection 10 of
The community commonwealth charter shall provide for the following:
....
10. A process by which the governing body of the community commonwealth and the governing bodies of the member cities provide by mutual agreement for the delivery of specified services to the community commonwealth.
Nothing contained in the proposed charter provides the required process by which specified services are to be delivered to the community commonwealth through mutual agreement of the commonwealth governing body and the governing body of the affected member city. The opinion of the court mistakenly finds such process to exist in the interaction that the charter establishes between the Commonwealth Council, which the court concedes to be the “governing body” of the community commonwealth, and the Mayors’ Commission, whose voting members are the mayors of the member cities of the commonwealth. To support that conclusion, the majority of the court concludes that these mayors are the governing bodies of the cities they represent. That is not a sustainable position.
The most common definition for the “governing body” of a municipal corporation is that body which performs legislative functions. Humthlett v. Reeves, 212 Ga. 8, 12, 90 S.E.2d 14, 18 (1955); Borough of Rutherford v. Hudson River Traction Co., 73 N.J.L. 227, 238, 63 A. 84, 88 (1906); Burch v. City of San Antonio, 518 S.W.2d 540, 542 (Tex.1974). Clearly, the mayor of a city does not fall within this definition.
A broader definition of “governing body,” not tied specifically to municipal corporations, is “[that] body which has the ultimate power to determine [an institution‘s] policies and control its activities.” Student Bar Ass‘n Bd. of Governors v. Byrd, 293 N.C. 594, 239 S.E.2d 415, 421 (1977). A mayor does not fall within this definition either. Nor can a mayor qualify as a “governing body” under the common understanding of that term.
The opinion of the court seeks to qualify a mayor as a governing body by listing a series of powers granted by law to the mayor of a city, including emergency powers and the power to veto resolutions and ordinances enacted by the council. These are powers granted to the mayor as chief executive officer of the city.
Even if a mayor could conceivably be viewed as a “governing body” of a member city, the charter would still not meet the requirements of subsection 10 of
The majority of the court attempts to justify its decision by a suggestion that requiring mutual agreement with city councils on delivery of governmental services “would effectively scuttle much of the benefit predicted for the commonwealth form of government.” This view tracks with that of counsel for the Charter Commission who, in arguing the case, made the exceedingly candid admission that this plan was chosen because mayors would probably make better judgments on these matters than council members. The clear answer to that contention is that, even if the Charter Commission is correct in that belief, the legislature mandated that the Commonwealth Council reach agreement with the city councils of the member cities rather than their mayors.
While I concur in the conclusions in the opinion of the court as to the other challenges lodged against the proposed charter, I cannot agree that the charter even minimally complies with
ANDREASEN, J., joins this concurrence and dissent.