Welcome to the Department of Justice, Iowa Attorney General Tom Miller

For immediate release -- Friday, August 24, 2001.
Contact Bob Brammer, 515-281-6699

Following is the text of an advice letter issued by
the Attorney General's Office Aug. 24

:To Scott County Attorney William Davis regarding the validity of a referendum petition being circulated in Scott County. (Mr. Davis referred the matter to the Attorney General's Office on August 22, citing a potential conflict of interest on his part.)

August 24, 2001

William E. Davis
Scott County Attorney
Scott County Courthouse
416 West Fourth Street
Davenport, Iowa 52801-1187

Dear Mr. Davis:

We are in receipt of your August 22, 2001, letter requesting an opinion addressing the validity of a petition which is being circulated in the county for the purpose of securing a referendum election regarding county funding of the River Renaissance on the Mississippi, Vision Iowa project. We understand the county board of supervisors has passed a resolution initiating the process for issuance of general obligation bonds for purposes of funding the project, and that the deadline for submission of a petition requesting an election on the bond question is August 29, 2001. Because you request an expedited response, we offer our response through an advice letter rather than a formal opinion.

A copy of the resolution passed by the Scott County Board of Supervisors on August 16, 2001, was provided with your request. The resolution indicates that the board of supervisors will meet on August 30, 2001, to take action for the issuance of general obligation urban renewal bonds in an amount not to exceed $5,260,000.00, pursuant to Iowa Code section 331.441(b)(14) (2001), to assist with funding of the River Renaissance project, and calls for publication of notice of the proposal. Iowa Code section 331.442 (2001), empowers the county supervisors to institute proceedings for the issuance of general obligation bonds by publishing notice, including a statement of the intent to issue bonds, the amount and purpose of the bonds, and the right of citizens to petition for an election. With regard to the right to petition for an election, the section provides:

b. If at any time before the date fixed [by the supervisors] for taking action on issuance of the bonds, a petition is filed with the county auditor in the manner provided by section 331.306 asking that the question of issuing the bonds be submitted to the registered voters of the county, the board shall either by resolution declare the proposal abandoned or shall direct the county commissioner of elections to call a special election upon the question of issuing the bonds. Notice of the election and its conduct shall be in the manner provided in subsections 2, 3, and 4.

c. If no petition is filed, or if a petition is filed and the proposition of issuing the bonds is approved at an election, the board may proceed with the authorization and issuance of the bonds.

Iowa Code § 331.442(5)(b), (c) (2001) (emphasis added).

You indicate that a petition is currently being circulated in Scott County, in the following form: "We, the undersigned, do hereby petition the Scott County Board of Supervisors to hold a referendum for a yes or no vote on increasing taxes to cover Scott County's contribution toward the River Renaissance Project." You also indicate that bond counsel for the county has advised that the petition, in its current form, does not constitute a valid petition under subsection 331.442(5)(b). Assuming that the requisite number of citizens properly sign the petition and present it in a timely fashion, you ask whether the language of the petition is sufficient to require the supervisors to call a special election on the question of issuing the bonds. After reviewing the governing statute and judicial decisions addressing similar issues, we believe that a court would likely conclude that the petition, in its current form, fails to comply with the requirements of section 331.442, and is insufficient to trigger a referendum election under the terms of that statute.

As set forth above, Code subsection 331.442(5)(b), contemplates the filing of a petition "asking that the question of issuing the bonds be submitted to the registered voters of the county." The petition about which you inquire does not expressly ask for an election regarding the issuance of bonds. Rather, the petition asks the supervisors to "hold a referendum for a yes or no vote on increasing taxes to cover Scott County's contribution toward the River Renaissance Project." No reference to the bonds is contained in the petition. We believe that this is a significant deviation from the statutory directive.

We have found no recent cases directly addressing the sufficiency of a petition requesting a bond election under section 331.442. The Iowa Court has, however, recently examined the sufficiency of a petition filed by citizens under Iowa Code section 257.18(2), requesting an election on the question of whether a school district should participate in an instructional support levy. Petersen v. Davenport Community School District, 626 N.W.2d 99 (Iowa 2001). Section 257.18 authorizes a school district to collect an instructional support levy for a five-year period upon action by the school board, unless within twenty-eight days of the board action a petition is filed with the board secretary requesting "that an election be called to approve or disapprove the action of the board in adopting the instructional support program." Id. at p. 103. Following action by the Davenport school board approving participation in the levy program, a petition requesting an election "to determine whether the Davenport school district should participate in the instructional support program" was timely filed. Id. The school board rejected the petition based upon a deficiency in the number of signatures, and upon a finding "that the wording of the petition was misleading and was not in compliance with Iowa Code section 257.18(2)." Id. at 102. On appeal from dismissal of an action seeking damages from the school district based upon the board's rejection of the petition, the court found that the wording of "the statement of the issue to be voted on deviated sufficiently from the realities of the statutory procedure that the petitions were invalid as a matter of law." Id. at 104. This conclusion was based largely upon the court's observation that the deviation from the statutory language could have the effect of enticing those who supported the levy into signing the petition based upon a belief that approval of the electorate was required before the school district could participate in the program.

The analysis of the Petersen case is consistent with previous Iowa court decisions addressing the sufficiency of petitions requesting elections on public measures. The general rule in such actions is that "[c]ourts will be slow in holding a petition invalid where the statements made therein comply with the specific requirements of the statute." Hinders v. City of Ames, 329 N.W.2d 654, 656 (Iowa 1983), quoting Abbott v. Iowa City, 224 Iowa 698, ___, 277 N.W. 437, 444 (1938). The courts will find ineffective a petition which fails to comply with the requirements of statute. See Petersen v. Davenport Community School District, 626 N.W.2d at 103-04; O'Keefe v. Hopp, 210 Iowa 398, 228 N.W. 625 (1930) (petition requesting election to approve bridge construction found defective, where statute provided for petition requesting election on bridge construction and maintenance).

The legal effect of the petition being circulated in Scott County is subject to question. As set forth above, statutory compliance is critical to the effectiveness of a petition for referendum election on a public measure. Persons signing a petition are entitled to know the effect of the requested election, and the effect of failing to hold an election. Here, the petition does not explicitly request an election to approve or disapprove the proposed bond issue. Rather, the petition requests an election on the question of increasing taxes to fund the underlying project. It is possible that individuals presented with the petition could be confused regarding the impact of signing the petition. For example, supporters of the county's financial participation in the project might sign the petition on the belief that the county can not participate in the project unless voter approval for a tax increase is obtained. The potential for voter confusion is further complicated by the fact that, as we understand the situation, the county has significant cash reserve funds, and could arguably fund the proposed bond issue without increasing property taxes.

These considerations lead us to conclude that the question set forth in the petition is potentially misleading. Therefore, we advise that a court applying the analysis of the Petersen case would likely find the petition ineffective.

Sincerely,


Christie J. Scase
Assistant Attorney General

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