                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1471
                              Filed March 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRIS ANTHONY WARD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Stuart P.

Werling, Judge.



      Chris Ward appeals the district court’s denial of his motion to dismiss.

REVERSED AND REMANDED.



      Gina M. Messamer and Alfredo G. Parrishof Parrish Kruidenier L.L.P., Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, and Aaron J. Rogers, Assistant

Attorney General, for appellee.



      Heard by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.

       This appeal requires us to determine whether a charge of felonious

misconduct in office may be premised on an ordinance that was not properly

repealed.

I.     Background Facts and Proceedings

       Chris Ward was terminated from his long-term position as West Liberty

city manager. The State subsequently charged him with felonious misconduct in

office in connection with an instruction he allegedly gave to bill utility customers

pursuant to a rate prescribed by a 1998 ordinance rather than a 2007 ordinance.1

The 1998 ordinance set electricity rates “based upon a Cost of Purchased

Energy Index of 2.4 cents per KW-HR.” See West Liberty, Iowa, Ordinance No.

9-98 (Dec. 15, 1998).2 The 2007 ordinance “repeal[ed] ordinance 1-87, 11-88,

and 9-93”—but not ordinance 9-98—and set forth utility “rates . . . based upon a

Cost of Purchased Energy Index of 3.1¢ per kWh.” See West Liberty, Iowa,

Ordinance 2007-01 (June 15, 2007). The 2007 cost of purchased energy index

effectively lowered the rate charged to utility customers. By reverting to the 1998

index, West Liberty charged a higher rate.




1
  The State also charged Ward with third-degree fraudulent practices, a charge that was
subsequently dismissed.
2
  The complete language is as follows:
       These rates are based upon a Cost of Purchased Energy Index of 2.4
       cents per KW-HR, and shall be increased or decreased by a purchased
       power adjustment equal to the amount by which the average cost for the
       appropriate seasonal billing of electric energy purchased in the preceding
       purchase billing period by the West Liberty Municipal Utility is greater or
       less than 2.4 cents per KW-HR. The cost of electric energy purchased
       shall include the cost of peaking power, that is purchased by the City, in
       order to receive a credit from purchased power costs.
                                         3


       The State did not assert Ward pocketed the overage, which was ultimately

refunded to customers. The State simply charged that Ward’s reliance on the

1998 ordinance amounted to falsification of a public record. See Iowa Code

§ 721.1(2) (2015).

       Ward moved to dismiss the charge. He asserted “[a]ny action based on

[the 1998 ordinance] [was] fundamentally legal” because that ordinance was still

in effect. The State countered by asserting, “The fact that the price [for electrical

service] was changed [in the 2007 ordinance] means that the 1998 ordinance

was repealed.”

       In ruling on the motion, the district court mentioned the State’s concession

“that as of the date when the criminal activity [was] alleged, the City of West

Liberty had not enacted an ordinance which specifically repealed Ordinance 9-

98.”   The court nonetheless denied the motion to dismiss the felonious

misconduct charge, reasoning, “The only manner in which one can logically

harmonize the two ordinances in this matter is to interpret Ordinance 2007-01 to

be an enactment to amend and change the electrical rate charged by the City of

West Liberty.”

       Ward filed an application for interlocutory appeal and discretionary review,

which the Iowa Supreme Court granted.

II.    Analysis

       Iowa Code section 721.1(2) states, “Any public officer or employee, who

knowingly . . . [f]alsifies any public record, or issues any document falsely

purporting to be a public document” is guilty of a class D felony. Ward reprises

his argument that the State’s felonious misconduct charge cannot stand because
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it is premised on an ordinance “in effect at the time of the conduct alleged

against” him. He notes that the 1998 ordinance was not expressly repealed by

the 2007 ordinance and could not have been impliedly repealed because the

common law “implied repeal” doctrine has been abrogated by statute. See Iowa

Code § 380.2.3

          The State essentially concedes the West Liberty City Council failed to

expressly repeal the 1998 ordinance. But the State asserts the ordinance was

“implicitly repealed” by the 2007 ordinance, which provided a different and

“explicit, irreconcilable cost-of-purchased-energy provision.” In the State’s view,

“Ward falsified the electricity billing system” by “setting the electricity rate to the

level prescribed by an implicitly repealed ordinance.”

          We need not engage in a broad discussion of the common law “repeal by

implication” doctrine and the claimed statutory abrogation of the doctrine. For

purposes of this appeal, it is sufficient to focus on the specific language of

section 380.2 and whether West Liberty followed its dictates in attempting to

repeal the 1998 ordinance.

          As Ward points out, section 380.2 requires a city council to “specifically

identify” an ordinance it intends to repeal. See id. Ordinance 2007-01 did not

specifically identify Ordinance No. 9-98. Accordingly, Ordinance 2007-01 did not

properly repeal Ordinance No. 9-98. It follows that Ordinance No. 9-98 was still



3
    Section 380.2 states:
          An amendment to an ordinance or to a code of ordinances must
          specifically identify the ordinance . . . to be amended, and must set forth
          the ordinance . . . as amended, which action is deemed to be a repeal of
          the previous ordinance . . . amended.
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in effect when Ward was charged with invoking it. Because it was still in effect,

we conclude reliance on its contents could not be considered falsification of a

record and felonious misconduct in office. Long-standing precedent supports this

conclusion.

          As early as 1882, the Iowa Supreme Court considered an ordinance under

which a defendant was arrested, tried, and convicted. See Town of Cantril v.

Sainer, 12 N.W. 753 (Iowa 1882).            The court categorically stated, “[W]hen a

conviction is sought under an ordinance of the town, it must be by such an

enactment as reasonably and fairly accords with the law authorizing municipal

corporations to enact and enforce ordinances.” Id. at 753. Characterizing the

ordinance as “fatally defective” for failing to comport with a predecessor version

of section 380.2, the court reversed the conviction.                   Id.4   Though the

nonconformity simply related to the title of the ordinance, the court stated, “We

cannot disregard this provision of law. It is not unreasonable that when a village

assumes to itself the functions of a municipal corporation, it should be held to a

reasonable compliance with the laws of the state in the enactment of its

ordinances . . . .” Id. at 754.

          In Glaser v. City of Burlington, 1 N.W.2d 709, 711-12 (Iowa 1942), a city

defended a firefighter’s lawsuit alleging wrongful deduction of wages by citing an

ordinance that purported to amend the salaries prescribed by another ordinance.



4
    Iowa Code section 489 (1880) stated in pertinent part:
         [N]o ordinance shall contain more than one subject, which shall be clearly
         expressed in its title, and no ordinance or section thereof shall be revised
         or amended unless the new ordinance contain the entire ordinance or
         section reviewed or amended, and the ordinance or section so amended
         shall be repealed.
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The Iowa Supreme Court concluded the amending ordinance “did not comply

with [a predecessor to section 380.2] and therefore did not change the salaries

fixed by [the original ordinance].” Glaser, 1 N.W.2d at 712. The predecessor

statute stated, “An ordinance revising or amending an ordinance or section

thereof shall specifically repeal the ordinance or section amended or revised, and

set forth in full the ordinance or section as amended or revised.” Id. at 711-12.

The court determined the city made “[n]o attempt . . . at compliance with the plain

provisions of [this] Code section” even though the statute was “mandatory” and

“limit[ed] the power of the city to enact ordinances.”       Id. at 712.    The court

affirmed the district court’s decision to strike the city’s defense based on the

purported amending ordinance. Id.

       In Massey v. City Council of City of Des Moines, 31 N.W.2d 875 (Iowa

1948), a police chief was appointed under the auspices of a city resolution. The

superintendent of public safety filed suit against the city to test the legality of the

resolution.   Massey, 31 N.W.2d at 877.        The Iowa Supreme Court held the

resolution conflicted with city ordinances. Id. at 880. The court stated “these

ordinances were not repealed, amended or otherwise affected by passage of the

resolution” because they were not “repealed or amended . . . in the manner

provided by [a predecessor statute to section 380.2].” Id. at 881.

       Together, these opinions mandate dismissal of the felonious misconduct

charge.   Although the language of the predecessor statutes on passage of

ordinances differed from the version in effect when Ward was charged, the effect

was the same: ordinances that failed to comport with the statute were

unenforceable (Sainer and Glaser) and an ordinance that was improperly
                                            7

repealed was enforceable (Massey). See also City of Vinton v. Engledow, 140

N.W.2d 857, 859, 868 (Iowa 1966) (reversing conviction for a traffic offense

charged under a city ordinance, reasoning, “If it be the fact that the defendant

was charged under an invalid ordinance, this conviction cannot be sustained,

regardless of our view of the factual situation”); City of Osceola v. Blair, 2 N.W.2d

83, 83, 85 (Iowa 1942) (affirming district court conclusion that an ordinance

prohibiting solicitation and punishing solicitors with a $100 fine and costs was

invalid); State v. Livermore, 185 N.W. 1, 2 (Iowa 1921) (reversing conviction for

disorderly conduct and disturbance of the peace under an ordinance that was

held to violate a statute); Bradley v. City of Centerville, 117 N.W. 968, 969 (Iowa

1908) (“No authority is cited, and we think none can be found, in support of the

proposition that the city ordinance regularly and formally adopted may be

repealed otherwise than by another ordinance duly enacted.”).

       These holdings makes sense. Ordinances must “be published in a certain

manner, and thereafter stand as the law, of which all must take notice.”

Cascaden v. City of Waterloo, 77 N.W. 333, 336 (Iowa 1898). If matters were

adopted by less formal means such as by resolution, “the public would not be

informed of amendments, repeals, or suspensions.” Id.; see also Indep. Sch.

Dist. of Des Moines, 180 N.W. 157, 158 (Iowa 1920) (“The provision of [a prior

version of chapter 380] which requires that no ordinance shall contain more than

one subject, which shall be clearly expressed in the title, is mandatory, and a

limitation upon the power of city councils to enact ordinances. The failure of the

title to clearly express the subject of the ordinance is fatal to its validity.” (internal

citations omitted)); Rocho v. Boone Elec. Co., 140 N.W. 193, 193 (Iowa 1913)
                                        8


(“The intent [of the statute requiring inclusion of the entire ordinance or section

being revised or amended] is that the amending ordinance or section shall be

complete in itself, and that the former ordinance or section shall be repealed.

The purpose of this statute is to avoid the confusion and the frequent

contradiction which results from amendments which purport to add to or take

from an existing ordinance mere words or phrases.”).

      Town of Decorah v. Dunstan Bros., 38 Iowa 96 (1874), does not alter our

conclusion. There, the court was asked to determine whether an amended town

charter repealed a provision of the original charter. Dunstan Bros., 38 Iowa at

98.   The court concluded the amendment comported with the then existing

statute on passage of ordinances.       Id. at 98-99.   West Liberty’s amending

ordinance—Ordinance 01-2007, like the ordinances in Sainer, Glaser, and

Massey—did not comport with the statute on passage of ordinances and,

accordingly, was ineffective in repealing the 1998 ordinance.

      The State nonetheless hangs its hat on the following language in Dunstan:

      [W]hile repeals by implication are not favored, yet since section
      twelve of the amended charter embraces and revises the whole
      subject matter of that section in the original charter, there arises a
      clear implication of the legislative intent, that the former shall take
      the place of, and repeal the latter.

Id. at 98. This language is dicta in light of the court’s conclusion that the town

complied with the requirements of the statute in amending the charter.

      The State conceded West Liberty’s 2007 ordinance did not properly repeal

the 1998 ordinance, yet charged Ward with a crime predicated on repeal of the

1998 ordinance. This was error. We reverse the district court order denying
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Ward’s motion to dismiss the felonious misconduct in office charge and remand

for dismissal of that charge.

       REVERSED AND REMANDED.
