HomeMy WebLinkAbout1978-07-11 CorrespondenceMIL,iWi ILMEO BY JURM MIGRULAB
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The CityFo Iowa City would like
in Iowa, and more specifically,
in the state.
LEDAt RAVIUS ANU LJLLJ
to express its support for Amtrak service
endorse a centrally -located Amtrak route
Amtrak (the National Rail Passenger Corporation) was created to reduce high-
way and airport congestion by serving urban areas,i°improve intercity rail
passenger service, and to service public conveniance/necessity with an
integrated national system. These are laudable goals, and could be better
reached }ntIowa with a more central route 'that ':could be accessible to Iowa
City t reel
wa��y�ras evidenced by the statement of the
Many people use AMtrak here in Io
owner of Uni-Travel a3ency at the public meeting held by IDOT in Iowa City
in late June. He said that he had over $60,00O worth of Amtrak bookings
last year, and already had over 130,000 worth of bookings by Nay
this
year. Amtrak , despite the difficulty of reaching the hit. Pleasant boardig
paint from Iowa City, is an inexpensive and relatively fast .othod of
travel for the Fpany out-of-state students at the University of Iowa.
Other people testified at t�jis meeting of the need to upgrade equipment
and trackage in order to improve the often late trains. It :•ras noted
that the federal and state governments subsidise other modes of travel
and that Amtrak should not be excluded ;ail travelnt isilessreo or
per mile to maintainand is more energyeff
ir
travel. lv 4tyuz IL 4D
In conclusion, a central Iowa route would afford greater acessibility
to and from Iowa City as well as other cities, and would be\post , as
well as energy-efficient mode of transport.
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141CROTIL14ED BY
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I;IICROFILi4ED BY DORM MICROLAB
WILL J. HAYEK
JOHN W. HAYEK
C. PETER HAYEK
C. JOSEPH HOLLAND
• CEDAR RAPIDS AMU UES i4UIFIL�, iuvm
HAYEK, HAYEK & HAYEK
ATTORNEYS AT LAW
110 EAST WASHINGTON STREET
IOWA CITY, IOWA 52240
June 28, 1978
AREA CODE 319
337-9606
Mrs. Abbie Stolfus
City Clerk
Civic Center
Iowa City, Iowa 52240
Dear Abbie:
Enclosed is a resolution changing the cable television franchise
referendum date from November 21, 1978, to November 28, 1978. Please
put that resolution on the Council's next agenda.
Also enclosed is a copy of an Attorney General's opinion concerning
cable television. I would appreciate it if you would distribute that opinion
to the Council for their information.
Very tru y Mrs,
I
aJohn. ayek
JWH:vb
Enclosures
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CFDAP P.APIDS • DCS MOINES
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I;IICROFILi4ED BY DORM MICROLAB
WILL J. HAYEK
JOHN W. HAYEK
C. PETER HAYEK
C. JOSEPH HOLLAND
• CEDAR RAPIDS AMU UES i4UIFIL�, iuvm
HAYEK, HAYEK & HAYEK
ATTORNEYS AT LAW
110 EAST WASHINGTON STREET
IOWA CITY, IOWA 52240
June 28, 1978
AREA CODE 319
337-9606
Mrs. Abbie Stolfus
City Clerk
Civic Center
Iowa City, Iowa 52240
Dear Abbie:
Enclosed is a resolution changing the cable television franchise
referendum date from November 21, 1978, to November 28, 1978. Please
put that resolution on the Council's next agenda.
Also enclosed is a copy of an Attorney General's opinion concerning
cable television. I would appreciate it if you would distribute that opinion
to the Council for their information.
Very tru y Mrs,
I
aJohn. ayek
JWH:vb
Enclosures
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CFDAP P.APIDS • DCS MOINES
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CLDAR RAVIUS Af4U ULS :101I+L.,
An Official Opinion
From the Office of
RICHARD C. TURNER
Attorney Genorai of Iowa
April 17, 1978
MUNICIPALITIES: Franchise Elections; Cable Television. §§47.6, 364.2,
364.6, Code of Iowa, A city council is not required to submit all cable
television franchise proposals timely received by it at the same election
although it is free and encouraged to do so. In any event, an yy pro cast
received by a council must be submitted to a vote of the people within a
reasonable time. Additional proposals may not be added to an already
scheduled election without notification to the county commissioner of
elections as required by §47.6 although substantial compliance with the
time requirements of that section is sufficient. (Haesemeyer to
Schroeder, State Representative, 4.17.78) #78.4.9
Honorable Laverne W. Schroeder, State Representative: Reference is
made to your letter of April 13, 1978, in which your request an opinion of
the Attorney General and state:
"The City of Council Bluffs has adopted a resolution calling for a special
election on May 16, 1978, for the purzose of submitting to the voters ail
Bluffs has adopted a resolution catling for a special election on May 16,
1978, for the purpose of submittinc to the voters a proposal as to whether a
certain applicant shall be granted a non-exclusive cable TV franchise as
authorized by Section 364.2, Code of Iowa.
"If a petition complying with Iowa Code Section 362.4 is filed requesting
the submission to the voters of a proposal as to whether another applicant
shall be granted such a similar non-exclusive franchise, would the city coun-
cil be required to put that issue to the voters at the May 16 special election
to give the voters a choice between the two?
"After notifying the county election commissioner of a special election by
a governing body for special election for one pur ose, may any additional
such proposals be added without additional notification?
"Please be advised that I have received a recent opinion dated March 31,
1978, by Larry Blumberg, concerning city franchises."
Section 364.214), Code of Iowa, 1977, provides:
"4. a. A city may grant to any person a franchise to erect, maintain, and
operate plants and systems for electric light and power, heating, telephone,
telegraph, cable television, district telegraph and alarm, motor bus, trolley
bus, street railway or other public transit, waterworks or gasworks, within
the city for a term of not more than twenty-five years. The franchise maybe
granted,
frn franchise shall be granted, amendedor renewed ! extendedan ror renewed. but no ex-
clusive
"b. No such ordinance shall become effective unless approved at an elec.
tion. The proposal may be submitted by the council on its own motion to
the voters at any city election. Upon receipt of a valid petition as defined in
section 362,4 requesting that a proposal he submitted to the voters, the
council shall submit the proposal at the next regular city election or at a
special election called for that purpose prior to the next regular city elec-
tion. If a majority of those voting approves the proposal the city may pro•
ceed as proposed.
"c. Notice of the election shall be given by publication as prescribed in
section 49.53 in a newspaper of general circulation in the city.
"d, The person asking for the granting, amending, extension, or renown]
ofa franchise shall pay the costs incurred in holding the election, including
the costs of the notice. A franchise shall not be finally effective until an ac-
ceptance in writing has been filed with the council and payment of the costs
has been made."
The notice requirements of §49,53 referred to in §364,2(4)(c) are as
*1. � 141CRor IL14ED BY
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Honorable Laverne W. Schroeder
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follows:
"Publication of ballot and notice. The commissioner shall not less than
four, nor more than twenty days prior to the day of each election, except
those for which different publication requirements are prescribed by law,
publish notice of the election.
Consideration must also be given §47.6, which provides:
"Dates for special elections.
"1. The governing body of any political subdivision which has authoriz-
ed a special election to which section 39.2 is applicable, shall by written
notice inform the commissioner who will be responsible for conducting the
election of the proposed date of the special election. If the proposed date of
the special election coincides with the date of a regularly scheduled election,
the notice shall be given no later than five o'clock p.m. on the last day on
which nomination papers may be filed for the regularly scheduled election.
Otherwise, the notice shall be given at least thirty days in advance of the
date of the proposed special election. Upon receiving the notice, the com-
missioner shall promptly give written approval of the proposed date unless
it appears that the special election, if held on that date, would conflict with
a regular election or with another special election previously scheduled for
that date.
"2. For the purpose of this section, a conflict between two elections ex-
ists only when one of the elections would require use of precinct boundaries
which differ from those to be used for the other election, or when some but
not all of the qualified electors of any precinct would be entitled to vote in
the other election. Nothing in this subsection shall deny a commissioner
descretionary authority to approve holding a special election on the same
date as another election, even though the two elections may be defined as
being in conflict, if the commissioner concludes that to do so will cause no
undue difficulties."
The March 31, 1978 opinion of the Attorney General to which you refer
involved two questions. The first was whether or not a city would be re-
quired to issue its franchise to two or more cable TV companies if the voters
approved more than one company. The second question was whether or not
a city council would be required to issue a franchise to a company which had
received voter approval or could it issue a franchise to another company
which had also received voter approval. The opinion concluded that if the
voters approved different proposals the city has discretion in the granting
and withholding of franchises. It could grant to both, grant to none, or
grant to only one. Thus, the opinion did not directly reach either of the
questions you now present.
It is apparent under §364.2(4)(b) that a proposal to grant a cable televi-
sion franchise may be submitted to the voters either by the council on its
own motion or upon a valid petition requesting such submission. Upon the
happening of either of these events, the requirement of the statute is that
the council "shall submit the proposals at the next regular city election or
at a special election called for that purpose prior W the next regular city
election." Do the words "that purpose" refer to any special election already
called for the purpose of approval of any cable television franchise or do
they refer to a special election called only for the purpose of considering the
particular cable television franchise proposal in question? In other words,
141CROHL14ED BY
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April 17, 1978
MUNICIPALITIES
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_ Honomble Laverne W. Schroeder 3 April 17,1978
in the situation you describe where a special election has already been called
for the purpose of considering one cable television franchise grant is a city
council obliged to submit any other timely cable television franchise pro-
posals at the same election or may it schedule separate special elections for
each such proposal or even wait until the next regular city election for one
or more of them. In this connection, it is worth noting that the next regular-
ly scheduled city election will not occur until November, 1979. Section
376.1.
In our opinion, the city council is not required to submit all proposals sub-
mitted to it at the same election although it is free to do so provided the
various proposals are submitted in time to be included in the same special
election. Certainly, it would be much more convenient for the voters if they
had to go to the polls only once to vote on cable television franchises and it
would also reduce the costs incurred by the persons seeking such franchises
if the proposals were all submitted at a single special election, Moreover,
the argument that the people would be confused if they had to consider
more than one proposal at the same time is untenable. As stated in Lame v.
Kramer, 259 Iowa 675, 145 N.W.2d 597, 602 (1966):
"Defendant contends under his sixth and seventh propositions the trial
court should not have required him to call a special election on granting a
gas franchise to private utility when the town was in the process of
establishing its own gas distribution system pursuant to a vote of the elec-
torate; that causing a notice of election on the question of purchasing gas
from Northern and a notice on the question of granting a franchise to Iowa
Power and Light to be published in the same issue of the same paper would
confuse the voters; the fact plaintiffs waited until after they knew the coun.
cil planned to hold an election on the contract before presenting theirpeti-
tion for a franchise election, justifies an inference the presentation of the
franchise petition was not a good faith effort to ascertain the desire of the
people on the question of the sale of natural gas,
"Defendant's argument in support of these assignments is without merit.
Elections were required on both questions by statute. We believe the voters
are certainly able to distinguish an election granting a franchise from one
for the purchase of gas by a municipally -owned plant. The question of plain-
tiffs' good faith is not involved."
The words "that purpose" in §364.2(4)(b) refer to the submission of a pro•
posal to the voters and each such proposal in turn refers to the granting of a
cable television franchise to a specific person or company. Thus, "a special
election called for that purpose" refers to a special election called for the
purpose of submitting a specified company's request for a franchise to the
people and not to a special election called for the purpose of submitting
some other company's franchise proposal to the electorate or to a special
election called for the purpose of generally gaining voter approval of the
granting of a cable television franchise to someone. If the statute had used
the words "any special election", instead of "a special election" it would be
reasonable to conclude that a city council would have a duty to submit com-
pany B's proposal at a special election called for the purpose of approving
company A's proposal. But that is not what the statute says,
However, it Is our opinion that a city council would have to submit any
franchise proposal to the voters within a reasonable time after it has been
submitted to them. For example, in the situation you present, It would not
be reasonable for the city council to submit on its own motion company A's
proposal on May 16, 1978, and then require all other applicants to wait until
the regular city election in November of 1979. As stated in 29 C.J.S., p. 173,
Elections, §77:
"Time is an essential element of the valid election. The time for holdingg
an election must be fixed in advance either by law or by the officer or of.
10001 MUNICIPALITIES
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Honorable Laveme W. Schroeder
10606
CLOAR RAPlus Afiu UL,)
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ficers empowered by law to designate the time, and when no special length
of time is required, it must be reasonable time.
" •0•
"In general, unless controlled by constitutional provision, the legislature
may fix the time for holding of an election, or, as in the case of special elec.
tions, it may provide for some designated official or agency to fix it. Such
official or agency may be given a discretion in fixing the date of election,
but the discretion must be exercised reasonably.
While it is always difficult to determine what is a reasonable or
unreasonable length of time under different circumstances, some guidance
as to the short time standards applied by the Iowa Supreme Court in a
§364.2(4)(b) case can be found in Iowa Public Service Co. v, Tourgee, 208
Iowa 36, 222 N.W. 882 (1929). There, the Court held that a mayor's delay of
five days in calling a special election on a peitition for an election franchise
was so unreasonable under the circumstances as to justify a writ of man-
damus compelling the calling of the special election.
Thus, while as we have noted, the city council is under no statutory man.
date to hold more than the one election scheduled for May 16, 1978, on that
date it is entirely free and encouraged to do so. Holding all elections on pro-
posed cable television franchises on the same day would serve the conve-
nience of the voters, reduce costs, afford the widest choice to the electorate
and enhance competition among the applicants.
Turning to your second question, it is our opinion that additional pro-
posals may not be added to an already scheduled election without com•
pliance with the notification requirements of §47.6. Nevertheless, we do not
think strict compliance with the 30 day requirement of §47,6 is demanded
so long as there is substantial compliance and the commissioner of elections
has sufficient time to include the additional ballot proposals. Section 364,6
provides:
'Procedure. A city shall substanstially compply with a procedure establish.
ed by a state law for exercising a city power. If a procedure is not establish-
ed by state law, a city may determine its own procedure for exercising the
power.' (Emphasis added)
Moreover, §47.6(2) specifically confers discretion on the commissioner to
hold more than one election on the same day.
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April 17,1978
MUNICIPALITIES