Summary
In Braunschweig v. Board of Supervisors, No. 04-1506 (Iowa Ct. App. filed November 9, 2005), we reversed the district court, holding that the Board failed to notify the public of its intent to appoint a county attorney in compliance with Iowa statutes.
Summary of this case from Braunschweig v. HolmesOpinion
No. 5-638 / 04-1506
Filed November 9, 2005
Appeal from the Iowa District Court for Kossuth County, Michael S. Walsh, Judge.
T.J. Braunschweig appeals the district court's grant of summary judgment in favor of the Kossuth County Board of Supervisors. REVERSED AND REMANDED.
T.J. Braunschweig, Algona, pro se.
James A. Clarity, III of Clarity Law Office, Spirit Lake, for appellees.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
T.J. Braunschweig appeals the district court's grant of summary judgment in favor of the Kossuth County Board of Supervisors (Board). Braunschweig applied for the position of county attorney in Kossuth County. The Board appointed another applicant to the county attorney position. Braunschweig subsequently filed a petition for writ of certiorari, a petition for declaratory judgment, and a petition for writ of mandamus. Braunschweig asserted that the Board failed to act in a timely and procedurally correct manner in appointing Holmes as the county attorney, the Board's action in appointing Holmes was illegal and in violation of state law, and that due to the Board's failure to comply with state law Braunschweig suffered damages. In connection with his action, Braunschweig filed a motion for summary judgment contending (1) the Board gave improper public notice of its intent to appoint, rather than hold a special election; (2) the Board appointed an ineligible applicant; (3) the Board acted improperly in failing to formally accept the resigning county attorney's postponement of his resignation; and (4) the Board failed to comply with Iowa's veteran's preference law found at Iowa Code chapter 35C (2001). The district court entered summary judgment in favor of the Board as to all of these issues, even though the Board did not file a motion for summary judgment. We reverse and remand.
I. BACKGROUND FACTS AND PROCEEDINGS.
On March 29, 2001 Kossuth County Attorney David Skilling offered the Board his resignation, which was to take effect on June 30, 2001. On April 2, 2001 the Board accepted Skilling's resignation by formal motion.
The Board apparently made the decision to fill the county attorney position, an elected office, by appointment before the next scheduled general election. The Board published notice in the Algona Upper Des Moines newspaper on April 26, 2001, which provided in relevant part:
Notice is hereby given that the Kossuth County Board of Supervisors will meet on the 15th day of May, 2001 at 9:00 a.m., at which time the Board will accept applications to fill the vacancy of Kossuth County Attorney to be effective June 30, 2001. . . .
All applicants must meet the qualifications set forth in Iowa Code Chapters 331 and 69. . . .
Electors of the county have the right to file a petition requiring the vacancy to be filled by special election. (See Iowa Code Section 69.14A).
At the May 15, 2001 board meeting, Braunschweig and Todd Holmes formally applied for the county attorney position. Braunschweig claims that at this meeting Holmes represented to the Board that he was a resident of Kossuth County. On May 29, 2001 the candidates interviewed with the Board for the position in a closed-door session. Prior to that meeting, Braunschweig apparently conducted his own independent research as to the residency of Holmes and claims to have found evidence that Holmes resided in Hancock County, where Holmes was serving as county attorney. At the May 29 interview Holmes confirmed to the Board that he was not presently a resident of Kossuth County. Thus, Holmes informed the Board that in order to accept an appointment to the county attorney position he would require advance notice so that he could terminate his position in Hancock County and establish residency in Kossuth County. Holmes also indicated to the Board that it may be necessary for Skilling to postpone his resignation in order to accommodate Holmes establishing residency.
On June 14, 2001 Skilling modified his resignation date, delaying the effective date until August 31, 2001. Skilling indicated to the Board that as an elected official he could extend his resignation without any formal agreement or approval from the Board as long as it was done before the resignation became effective. The Board apparently accepted Skilling's position on the matter and accepted the extension of his resignation. No further publication of notice was made.
On August 13, 2001 the Board met and, by unanimous vote, appointed Holmes as the new county attorney, effective September 1, 2001.
On September 11, 2001 Braunschweig filed a petition for writ of certiorari, a petition for declaratory judgment, and a petition for writ of mandamus. Braunschweig asserted that the Board failed to act in a timely and procedurally correct manner in appointing Holmes as the county attorney, the Board's action in appointing Holmes was illegal and in violation of state law, and that due to the Board's failure to comply with state law Braunschweig suffered damages. In connection with his petitions, Braunschweig filed a motion for summary judgment asserting: (1) the Board failed to comply with the procedural requirements of Iowa Code sections 69.14A and 331.305, and therefore the Board acted illegally in appointing Holmes; (2) at the time of the county attorney vacancy Braunschweig was the only eligible candidate, as Holmes did not meet the residency requirements; (3) the Board erred by not having Skilling formally amend his resignation date and by failing to formally accept such an amendment; and (4) the Board failed to comply with Iowa's veteran's preference law found at Iowa Code chapter 35C. The Board resisted Braunschweig's motion.
We note this was within fourteen days of Holmes taking over the office of county attorney, which is the time period that Iowa Code section 69.14A(2)(a) gives for petitioning for a special election. While we do not decide whether the Braunschweig appropriately petitioned for a special election, we make note of the timing of the filing of this action because it illustrates that Braunschweig made the Board aware of the dispute in a prompt fashion.
The district court filed a ruling on the motion for summary judgment on February 14, 2003. The district court denied Braunschwieg's motions for summary judgment and instead entered summary judgment in favor of the Board, even though the Board did not file a motion for summary judgment. The district court determined that (1) the Board substantially complied with the notice requirement found in Iowa Code sections 69.14A and 331.305; (2) Holmes had satisfied the residency requirements before his appointment on August 13, 2001; (3) Skilling's extension of his resignation date was valid and the Board accepted the extension; and (4) the Board considered all relevant information regarding the qualifications of the candidates in appointing Holmes, and thus the Board did not violate the veteran's preference law. Based on these findings, the district court determined the Board was entitled to summary judgment in its favor as a matter of law.
Braunschweig appeals the district court ruling. Braunschweig renews his arguments as to the same four issues resolved on summary judgment.
II. SCOPE OF REVIEW.
We review summary judgment rulings for correction of errors of law. Iowa R. App. P. 6.4; Mason v. Vision Iowa Bd. , 700 N.W.2d 349, 353 (Iowa 2005). Where the record shows no genuine dispute of a material fact, summary judgment is appropriate. Id. In determining whether summary judgment is appropriate, we view the entire record in a light most favorable to the nonmoving party. Id. We also indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question. Id. III. ANALYSIS.
Iowa Code chapter 69.14A provides that a county board of supervisors may fill a vacancy in an elective office by appointment or by special election. If the board chooses to fill by appointment, the Iowa Code provides for certain procedures that are to be followed. Iowa Code § 69.14A(2)(a). Relevant to the present case, section 69.14A(2)(a) provides that
In total, the Code provision provides:
By appointment by the board of supervisors. The appointment shall be for the period until the next pending election as defined in section 69.12, and shall be made within forty days after the vacancy occurs. If the board of supervisors chooses to proceed under this paragraph, the board shall publish notice in the manner prescribed by section 331.305 stating that the board intends to fill the vacancy by appointment but that the electors of the county have the right to file a petition requiring that the vacancy be filled by special election. The board may publish notice in advance if an elected official submits a resignation to take effect at a future date. The board may make an appointment to fill the vacancy after the notice is published or after the vacancy occurs, whichever is later. A person appointed to an office under this subsection, except for a county attorney, shall have actually resided in the county which the appointee represents sixty days prior to appointment. A person appointed to the office of county attorney shall be a resident of the county at the time of appointment.
However, if within fourteen days after publication of the notice or within fourteen days after the appointment is made, a petition is filed with the county auditor requesting a special election to fill the vacancy, the appointment is temporary and a special election shall be called as provided in paragraph "b". The petition shall meet the requirements of section 331.306.
Iowa Code § 69.14A(2)(a).
[T]he board shall publish notice in the manner prescribed by section 331.305 stating that the board intends to fill the vacancy by appointment but that the electors of the county have the right to file a petition requiring that the vacancy be filled by special election.
Iowa Code section 331.305 provides for the manner in which public notice shall be made:
Unless otherwise provided by state law, if notice of an election, hearing, or other official action is required by this chapter, the board shall publish the notice at least once, not less than four nor more than twenty days before the date of the election, hearing, or other action, in one or more newspapers which meet the requirements of section 618.14. Notice of an election shall also comply with section 49.53.
From the record, it is clear that the Board did not comply with its duty to publish notice during the time period prescribed by statute. The Board published a notice on April 26, 2001 and did not publish any subsequent notice. In order to be in accordance with Iowa Code section 331.305 the Board was required to have published notice sometime between July 24, 2001 and August 9, 2001 before taking action on August 13, 2001.
We do not decide, because we do not need to reach the question, whether the particular notice published by the Board satisfied the substantive requirement of informing the public of its right to require a special election.
Not only was the notice published by the Board deficient for failing to appear during the statutorily prescribed time period, the notice was also substantively deficient. Iowa Code section 69.14A(2)(a) requires that the notice state that the Board "intends to fill the vacancy by appointment." The notice actually published by the Board does not include such a statement. The notice only states that the Board will "accept applications to fill the vacancy of Kossuth County Attorney."
The Board argues that substantial compliance with the notice provision is satisfactory and the Board did in fact substantially comply, as the district court found. We disagree. We conclude there is much support for the position that special election notice statutes are mandatory and require strict compliance. Therefore, we hold that the Board did not comply with the statutory requirements as a matter of law. We reverse the district court and conclude that the Board did not have jurisdictional authority to appoint Holmes to the position of county attorney because the notice was not published within the time frame mandated by the Iowa Code and did not include the substantive information mandated by the Iowa Code.
Iowa Code section 69.14A(2)(a) provides "the board shall publish notice in the manner prescribed by section 331.305 stating that the board intends to fill the vacancy by appointment . . .," and Iowa Code section 331.305 states "the board shall publish the notice at least once, not less than four nor more than twenty days before the date of the election, hearing or other action. . . ." (Emphasis supplied.) Both statutes include the word shall. The legislature has stated that "[t]he word ` shall' imposes a duty." Iowa Code § 4.1(30)(a). Furthermore, our courts have consistently held that "the term `shall' in a statute [creates] a mandatory duty, not discretion." State v. Klawonn , 609 N.W.2d 515, 522 (Iowa 2000); $99 Down Payment, Inc. v. Garard, 592 N.W.2d 691, 694 (Iowa 1999) ("The word `shall' in a statute is ordinarily construed as mandatory."); Schmidt v. Abbott, 261 Iowa 886, 890, 156 N.W.2d 649, 651 (1968) ("When addressed to a public official the word `shall' is ordinarily mandatory, excluding the idea of permissiveness or discretion.")
Further support for the proposition that public notice is mandatory and strict compliance is necessary is found in Neal v. Board of Supervisors, 243 Iowa 723, 53 N.W.2d 147 (1952). In Neal the court stated "the statutory directions as to time and manner of giving notice of an election are mandatory and will be strictly upheld. . . ." Neal, 243 Iowa at 729, 53 N.W.2d at 150 (1952). The Neal case does provide for one exception to strict compliance, that is, if despite the deficient public notice the election is still held and the sovereign will is fairly expressed. Id. However, the current case does not fit within that exception, as the Board went on to appoint Holmes, which was not an expression of the sovereign will.
We do note that approximately thirteen months after his appointment, Holmes was elected to the position of county attorney in a general election. We do not disturb the result of that election.
The proposition that strict compliance with a public notice statute is required is further bolstered by Osage Conservation Club v. Board of Supervisors, 611 N.W.2d 294 (Iowa 2000). In Osage, the court construed a different statute that also required a published public notice in the manner prescribed by Iowa Code section 331.305. Osage, 611 N.W.2d at 297. In Osage, the board of supervisors did not publish notice in a manner consistent with section 331.305. Id. Due to the failure to comply with the public notice requirements, the supreme court held that board of supervisors lacked subject matter jurisdiction to take any action. Id. at 297-98. The court stated, "The rule that compliance with the [public notice] statute is mandatory and jurisdictional has been announced in scores of cases and appears to prevail in every jurisdiction where the question has been presented." Id.
The Board and the district court rely on Superior/Ideal, Inc. v. Board of Review , 419 N.W.2d 405, 407 (Iowa 1988) as support for the position that substantial compliance with the public notice statute is sufficient. That case is easily distinguishable. The Superior/Ideal case involved service of a notice of appeal on the board of review's clerk rather than on the chairperson to whom it was addressed. Superior/Ideal , 419 N.W.2d at 407. The present situation is substantially different, as it involves the failure of a government body to give public notice of its intended actions that would deprive the public of its right to hold a special election to fill an elected county office. The Superior/Ideal case is not applicable to the present case.
Because the Board failed to comply with the public notice requirements, the Board lacked subject matter jurisdiction to take action. The Board's appointment of Holmes to the county attorney position was without legal effect as a matter of law.
Residency Requirements.
Because we have already held that the Board's appointment of Holmes was without legal effect, we need not decide whether the district court correctly determined Holmes had established Kossuth County residency as required by Iowa Code section 69.14A(2)(a).
Resignation Extension.
Braunschweig claims county attorney Skilling submitted his resignation and it was formally accepted by the Board to be effective on July 1, 2001. On June 14, 2001 Skilling notified the Board of his intent to modify his resignation date, delaying his resignation until August 31, 2001. The Board apparently took no formal action to modify its acceptance of Skilling's resignation. Braunschweig argues this was in error.
We have determined that the Board's appointment of Holmes to the county attorney position was without legal effect. Having so held, we conclude it is unnecessary to determine whether it was improper for the Board to allow Skilling to postpone his resignation date without formal action by the Board.
Veteran's Preference.
Braunschweig's final claim is that the Board did not comply with Iowa's veteran's preference law. Iowa Code ch. 35C. The veteran's preference law places certain duties on government bodies before they appoint an individual when one or more of the applicants claims the veteran's preference. See Iowa Code §§ 35C.1 35C.3. We have held that the Board did not have subject matter jurisdiction to appoint. Therefore, the veteran's preference law is inapplicable in the present case as the Board did not legally make an appointment.