Opinion
23-1168
03-06-2024
STATE OF IOWA, ex rel. DOUG OMMEN, IOWA INSURANCE COMMISSIONER, Plaintiff-Appellee, v. THE CITY OF DUBUQUE, Defendant-Appellant, and LINWOOD CEMETERY ASSOCIATION, DUBUQUE TOWNSHIP, JULIEN TOWNSHIP and DUBUQUE COUNTY, Defendants-Appellees.
Crenna Brumwell, Dubuque, for appellant City of Dubuque. Steven R. Wilson and Scott J. Nelson, Dubuque, for appellees Dubuque Township, Julien Township, and Dubuque County. Brenna Bird, Attorney General, David Faith (until withdrawal), Deputy Attorney General, and Tyler L. Eason, Assistant Attorney General, for appellee State of Iowa, ex rel. Doug Ommen, Iowa Insurance Commissioner.
Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Ackley, Judge.
A city appeals the district court's grant of a motion to dismiss. AFFIRMED.
Crenna Brumwell, Dubuque, for appellant City of Dubuque.
Steven R. Wilson and Scott J. Nelson, Dubuque, for appellees Dubuque Township, Julien Township, and Dubuque County.
Brenna Bird, Attorney General, David Faith (until withdrawal), Deputy Attorney General, and Tyler L. Eason, Assistant Attorney General, for appellee State of Iowa, ex rel. Doug Ommen, Iowa Insurance Commissioner.
Considered by Greer, P.J., and Schumacher and Ahlers, JJ. Langholz, J., takes no part.
SCHUMACHER, JUDGE
I. Background Facts and Prior Proceedings
Linwood Cemetery sits among rolling hills near the Mississippi River in the City of Dubuque (the City). The land at the center of this appeal was dedicated as a cemetery in the 1850s. The Linwood Cemetery Association was established in August 1875. For approximately the last 150 years the cemetery has served the City, Julien Township, Dubuque County (the County), and Dubuque Township. But the condition of the cemetery has declined, including felled trees; problematic roads within the cemetery; and a chapel roof and maintenance building roof, each over twenty-five years in age, noted to be in a condition of "disrepair." The projected deficit spending for the year 2020 was $160,000. In November 2019, the cemetery sought the help of the Iowa Insurance Commissioner, who is tasked with administering Iowa laws governing perpetual care cemeteries.
The Iowa Insurance Division concluded Linwood was in a financial crisis and lacked sufficient funds to continue operating. The Division then brought a receivership action under the Iowa Cemetery Act contained in Iowa Code chapter 523I (2020), seeking to temporarily manage Linwood and determine the best path forward. This action was filed against the City and the Linwood Cemetery Association after the Division determined the Association could maintain the cemetery with the financial support of the City. Iowa Code section 523I.316(3)(a) provides that "[a] governmental subdivision having a cemetery . . . within its jurisdiction, for which preservation is not otherwise provided, shall preserve and protect the cemetery or burial site as necessary to restore or maintain its physical integrity as a cemetery or burial site."
The City then moved to have the County, Julien Township, and Dubuque Township added to this action. The City asserted these entities were better situated to provide for the maintenance of Linwood because under Iowa Code sections 331.301, 331.402(2)(c), and 359.28-359.341, Iowa counties and townships may impose levies for the maintenance of cemeteries. The City asserted that cities do not share this same cemetery levy power. The City also requested that venue be transferred to Dubuque County. Both requests were granted. It was later discovered that Julien Township lacked trustees and therefore could not be served by the State. The County then modified the boundaries of Julien Township and Dubuque Township to remove their overlap with the City. This left the cemetery wholly within the City.
Both the County and the City moved to dismiss, claiming the other was the proper authority to provide for the future maintenance of the cemetery. The County also moved for the removal of the townships from the action, and the court granted this motion. The district court found the City bore responsibility for the cemetery, as the cemetery was completely within the City's jurisdiction. The court granted the County's motion to dismiss, and the City now appeals.
II. Standard of Review
We review the ruling on a motion to dismiss for correction of errors at law. Hedlund v. State, 875 N.W.2d 720, 724 (Iowa 2016).
III. Jurisdiction Over Linwood Cemetery
We are mindful of our court's long-standing view "that government has a role in ensuring that the resting place of the dead is respected and preserved as a consecrated ground." State ex rel. Atty. Gen. of Iowa v. Terry, 541 N.W.2d 882, 889 (Iowa 1995). This case presents two competing government entities, each disputing the other's respective role in the preservation of the cemetery. The City argues that the district court erred in dismissing the County from this action because the County is a governmental subdivision with jurisdiction over the cemetery and the County is authorized under Iowa Code section 331.424B to levy a tax to repair and maintain cemeteries under the county's jurisdiction. While the City acknowledges it is also a governmental subdivision with jurisdiction over the cemetery, the City seeks reversal of the dismissal order and remand for a determination as to which entity is best suited to maintain Linwood Cemetery.
Iowa Code section 523I.316 provides for the protection of cemeteries and burial sites. It includes a "[d]uty to preserve and protect," as follows:
A governmental subdivision having a cemetery, or a burial site that is not located within a dedicated cemetery, within its jurisdiction, for which preservation is not otherwise provided, shall preserve and protect the cemetery or burial site as necessary to restore or maintain its physical integrity as a cemetery or burial site.
Iowa Code § 523I.316(3)(a). The duty to preserve and protect can be assumed following a receivership:
The commissioner may petition the court to terminate a receivership at any time and to enter such orders as are necessary to transfer the duty to preserve and protect the physical integrity of the cemetery or burial site, the interment records, and other records documenting consumer purchases of interment rights to the applicable governmental subdivision, as provided in section 523I.316, subsection 3.Id. § 523I.212(5). No definition of "governmental subdivision" is provided, but "[w]hen examining a statutory term, we give words their ordinary meaning." State v. White, 545 N.W.2d 552, 555 (Iowa 1996). And "[i]n determining the ordinary and fair meaning of the statutory language at issue, we take into consideration the language's relationship to other provisions of the same statute and other provisions of related statutes." Doe v. State, 943 N.W.2d 608, 610 (Iowa 2020). Iowa Code section 523I.508, contained within the same act, is titled "Management by governmental subdivisions," subsection (1) is titled, "Political subdivisions as trustees" and it states, "Counties, cities . . . are trustees in perpetuity." Iowa Code § 523I.508(1). As such, the meaning of "governmental subdivision" in section 523I.316(3)(a), includes both cities and counties. The remaining question before us is whether the City or County has jurisdiction over Linwood Cemetery under section 523I.316(3)(a).
The City argues that the cemetery is both within the jurisdiction of the City and the County, reasoning that what is in the City must also be in the County. The City relies in part on Terry, which states, "we agree with the district court that Table Mound Township is a subdivision of Dubuque County . . . and any governmental subdivision or agency is potentially subject to the provisions of Iowa Code section 566.33." 541 N.W.2d at 886. But this case did not involve a city and a county, but rather a township and a county. And in the instant proceeding, the cemetery has been removed from any townships and now lies only within the City. Concluding a township is a subdivision of a county is therefore uninstructive here.
And Terry does not address whether a county has concurrent responsibility with townships for cemeteries: "The court did not declare whether Dubuque County has any legal obligation in coordination with the township . . . to preserve, protect, and maintain the burial site at issue." Id. at 885 n.6. The court also noted: "An attorney general opinion . . . concluded townships, not counties, bear the primary responsibility for the establishment, improvement, and maintenance of public cemeteries." Id. As much as this case instructs that a county may bear responsibility in this situation, it indicates with equal force that the governmental subdivision most directly over a cemetery bears primary responsibility. See id. at 885 n.6, 886-87.
Further, the City's insistence that what is in the City's jurisdiction is in the County's jurisdiction is not an absolute. Our supreme court has concluded that cities and counties do not share jurisdiction over all public amenities in all statutory contexts. In the context of highways within cities, our supreme court has stated:
We cannot think it was contemplated that both counties and cities have concurrent jurisdiction over such territory for the purpose of establishing highways, for the reason it is quite clear that the jurisdiction and liability of counties cease immediately upon the establishment of the highway, and all the burden of maintaining it is cast on the municipality.Gallaher v. Head, 33 N.W. 620, 621-22 (Iowa 1887). To conclude this, the court noted,
cities and incorporated towns have the control of all territory within the corporate limits, to abate nuisances, regulate fast driving on streets and highways thereon, to authorize or forbid the laying down of railway tracks over the streets and highways, to license exhibitions thereon, and many other things of like character.... [W]hen the several powers so confirmed on municipal corporations are considered, the jurisdiction and power of such corporations over territory within the corporate limits must be regarded as exclusive for the purpose of establishing highways or streets on or through such territory.Id. at 621. So, we do not adopt the City's reasoning that the cemetery is undeniably in both the jurisdiction of the County and the City under section 523I.316(3)(a). Cities have broad powers in their own city limits, see Iowa Code § 364.1, and Linwood Cemetery lies wholly within the City.
The City also argues that the County is in a better position to provide for the maintenance of the cemetery because state law allows counties to institute a specific cemetery levy under Iowa Code section 331.424B: "The board may levy annually a tax not to exceed six and three-fourths cents per thousand dollars of the assessed value of all taxable property in the county to repair and maintain all cemeteries under the jurisdiction of the board ...." But there is no question the City can provide for the cemetery, and the City does not dispute this. Section 523I.316 makes no mention of the cemetery levy, and it does not instruct cemeteries be placed in the care of the governmental subdivision with such a levy. It adds "[a] governmental subdivision is authorized to expend public funds, in any manner authorized by law, in connection with such a cemetery or burial site." Iowa Code § 523I.316(3)(b). The statute assigns responsibility to the subdivision with the cemetery "within its jurisdiction." Id. § 523I.316(3)(a). The existence or nonexistence of a specific cemetery levy does not affect the City's responsibility. See id.
Iowa Code section 384.25 contemplates the issuance of general obligation bonds by cities for "any essential corporate purpose." Section 384.24(3)(k) defines "essential corporate purpose" to include "[t]he acquisition and improvement of real estate for cemeteries, and the construction, reconstruction, and repair of receiving vaults, mausoleums, and other cemetery facilities."
Iowa Code section 523I.501 authorizes a governmental subdivision, such as a city, to "purchase, establish, operate, enclose, improve, or regulate a cemetery." A city is empowered to operate a cemetery as a governmental subdivision. We do not conclude that section 523I.316 mandates that a city can never be responsible for a cemetery within its city limits. Following the City's argument, a city could never bear responsibility for the care of a cemetery within the city limits. But section 523I.316(3)(a) instructs a "governmental subdivision having a cemetery . . . within its jurisdiction. . . shall preserve," and a city is a governmental subdivision. Section 523I.316 contemplates the responsibility of a city when it has a cemetery within its jurisdiction. See id. §§ 523I.508, .316(3)(a). Linwood Cemetery is wholly and exclusively within the City. We conclude the City is the governmental subdivision with jurisdiction over the cemetery. Accordingly, we affirm.
AFFIRMED.