holding issue raised for first time in reply brief will not be considered by the supreme court
How later courts described this case
- holding issue raised for first time in reply brief will not be considered by the supreme court
- holding that issue raised for the first time in reply brief would not be considered on appeal
- recognizing the need for a high degree of legislative expression before this court will find subject-wide preemption
- “Any distinction between a local ordinance that is inconsistent with state law and one that merely sets a higher standard or requirement is at best subtle.”
Written by the judges who cited it.
The opinion
CARTER, Justice
(specially concurring).
I concur in the opinion of the court. I write separately in order to state my views as to why the court has correctly rejected the arguments of the appellees based on Iowa Code section 331.301(6) (1995).
Section 331.301(6) provides:
A county shall not set standards and requirements which are lower or less stringent than those imposed by state law, but may set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise.
The problem of interpretation that arises in the present dispute is how to determine whether “state law provides otherwise” as to the substance of a county regulation.
As to ordinance 24, the applicable state law imposes an express limitation on local regulation in this area. As to ordinances 22, 23, and 25, express limitation on local regulation is not contained in state law, but, as the opinion of the court suggests, such limitations are clearly implied from the nature and scope of the state regulatory scheme. It thus becomes necessary to decide whether implied limitations on local authority may suffice to preclude local regulation.
The appellees urge that in order to stem local regulation any limitation on county power must be expressly stated in a state statute. Our decision in Bryan v. City of Des Moines, 261 N.W.2d 685, 687 (Iowa 1978), involving home rule for cities, suggested that limitations on local authority must be expressly imposed. That conclusion was based on Iowa Code section 364.2(2), which states that a city may exercise its general grant of home rule power “subject only to limitations expressly imposed by a state or city law.” A similar provision, relating to county home rule, is contained in section 331.301(3) (“county may exercise its general powers subject only to limitations expressly imposed by a state law”). There are, however, other statutes bearing on this issue that were not considered in the Bryan case. These statutes suggest that the views expressed in that case concerning the need for egress limitation of local authority were incorrect.
The requirement that limitations be “expressly imposed” refers to limitations on general home rule powers. The statutory grant of general home rule powers for counties is contained in section 331.301(1). From the-outset, these powers are subject to the proviso that local action pursuant thereto may not be “inconsistent with the laws of the general assembly.” Iowa Code § SSl.SORl). 1 As a *509 result, there is no home rule power to enact a local regulation that is inconsistent with state law. The right to impose “more stringent standards” envisioned in section 331.301(6) is necessarily subject to this restriction.
The paramount role of the “inconsistency” standard for limiting home rule, as contrasted with the “express limitation on general powers” language in section 331.301(3) and the “more stringent standards” language in section 331.301(6), is made clear by the inclusion of a definition of the term “inconsistent with a state law.” See Iowa Code § 331.301 (4). If limitations on the grant of home rule authority were limited to express limitation by legislative enactment rather than mere inconsistency with state law, there is no purpose in including that definition.
The legislature has equated inconsistency with irreconcilability. 2 To avoid exalting form over substance the term “irreconcilable” must be interpreted to mean disharmony in result depending on whether a comprehensive state law or a local regulation is applied to a particular situation. Otherwise, the inconsistency standard would be mere words on paper. Viewed in this light, the regulations contained in ordinances 22, 23, and 25 are, as the opinion of the court aptly demonstrates, irreconcilable with state law and beyond the power of the county rto enact.
NEUMAN, J., joins in this special concurrence.
. There is an identical limitation on the general home rule powers granted to cities in Iowa Code section 364.1. The phrase “not inconsistent with the laws of the general assembly” used in both section 331.301(1) and section 364.1 is the same language employed in the 1968 and 1978 amendments to the Iowa Constitution granting home rule powers to cities and counties. Iowa Const, art. Ill, §§ 3 8A, 39A. Although it may be argued that the legislature may approve a broader grant of authority to cities and counties than that given directly by the constitution, the adoption of the constitutional language in defining the scope of *509 general home rule powers radicates an intent not to do that.
. The statute provides:
An exercise of a county power is not inconsistent with a state law unless it is irreconcilable with that state law.
Iowa Code § 331.301 (4).