IN THE COURT OF APPEALS OF IOWA

No. 19-0759

Filed November 30, 2020

JOHN C. MAREK, JR., JOELLE C. MAREK, JASON D. MOATS, AMBER F. 

MOATS, LEMAR D. FENTON, KIMBERLY R. FENTON, BEN B. JOHNSON, 

MARY P. JOHNSON, SCOTT M. PFEIFFER, DONNA J. PRESTON, ANDREW 

GRIESER, JESSE J. MULLIN, AMANDA M. MULLIN, SCOTT E. 

CHRISTOFFERSON, CANDY S. CHRISTOFFERSON, CLIFFORD A. MATHER, 

WENDY L. MATHER, PHILLIP C. BUFFINGTON, ROBYN B. BUFFINGTON, 

COREY S. STROTHMAN, SAMANTHA STROTHMAN, and

PRAIRIE AG REAL ESTATE HOLDINGS, LLC,

Plaintiffs-Appellees/Cross-Appellants,

vs.

DAN JOHNSON and LINDA JOHNSON,

Defendants-Appellants/Cross-Appellees,

and

THE CITY DEVELOPMENT BOARD OF THE STATE OF IOWA and HENRY 

COUNTY, IOWA,

Defendants/Cross-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Henry County, John M. Wright, 

Judge.

In this declaratory judgment action, Dan and Linda Johnson appeal from the 

district court’s order granting summary judgment to the plaintiffs declaring the 

Johnsons’ money judgment void for lack of personal and subject matter 

jurisdiction. The plaintiffs cross-appeal the district court’s granting of the motion to 

dismiss filed by the City Development Board of the State of Iowa. AFFIRMED ON 

APPEAL; REVERSED AND REMANDED ON CROSS-APPEAL.
2

Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellants.

Steven E. Ort of Bell, Ort & Liechty, New London, for appellees Marek et al.

Thomas J. Miller, Attorney General, and Emily Willits and Alan Nagel, 

Assistant Attorneys General, for cross-appellee State.

Heard by Bower, C.J., and May and Ahlers, JJ.
3

AHLERS, Judge.

This case involves the aftermath of the discontinuance1 of the City of Mount 

Union, Iowa (City). The history of how the parties arrived at this appeal involves 

three separate legal proceedings, which we will explain below.

I. Factual and Procedural Background.

A. Discontinuance.

On May 30, 2016, the City formally initiated the process to discontinue the 

City pursuant to Iowa Code chapter 368 (2016) by adopting a resolution of intent 

to discontinue.2 An election followed, in which a majority of the voters voted for 

discontinuance. As a result, on March 10, 2017, the City Development Board 

(Board) issued a directive confirming the discontinuance of the City and initiating 

the procedure for receiving and adjudicating claims against the City.

B. Defamation Suit and Administrative Claims.

On February 24, 2016—prior to the formal initiation of discontinuance of the 

City—Dan and Linda Johnson filed a lawsuit against the City, seeking damages 

for defamation (the defamation suit). On March 13, 2017—three days after the 

 

1

“Discontinuance,” in this context, means termination of a city. Iowa Code 

§ 368.1(8) (2016).

2 Generally, the statutory discontinuance procedure involves: (1) the city adopting 

a resolution of intent to discontinue; (2) the city holding a public hearing; (3) the 

city passing a resolution of discontinuance; (4) the city holding an election by the 

registered voters of the city (if an election is requested); (5) the city notifying the 

City Development Board of the election results (if an election is held and a majority 

votes for discontinuance); (6) the Board taking control of the property of the 

discontinued city; (7) the Board receiving and adjudicating claims against the 

discontinued city; and (8) the Board causing necessary taxes to be levied against 

the property within the discontinued city to pay claims allowed. See Iowa Code 

§§ 368.3, 368.21. 
4

Board issued its directive confirming discontinuance of the City—the district court 

issued an order in the defamation suit denying a request to substitute the Board 

for the City as the defendant in the suit. The district court’s order stated:

The Motion to Substitute the City Development Board as the 

Defendant in this case, in place of the City of Mt. Union, a former 

Iowa Municipal Corporation, shall be denied. The City Development 

Board is not the real party in interest. Any claim for money damages 

Dan and Linda Johnson have against the former City of Mt. Union 

must be filed as a claim pursuant to Iowa Code Section 368.21. Such 

claim would be resolved through an administrative process.

Presumably aware of the district court’s order and the discontinuance of the City, 

the Johnsons filed a claim against the discontinued City with the Board on 

September 11, 2017.

On the date scheduled for trial in the defamation suit, the Johnsons 

appeared before the district court but the City—presumably because it had been

statutorily discontinued—did not appear for trial. In spite of the district court’s order 

stating the Johnsons’ claim “must be filed as a claim pursuant to Iowa Code 

Section 368.21” and the Johnsons’ submission of their claim to the Board, the 

district court entered judgment by default on December 7, 2017. The default 

judgment was entered in favor of the Johnsons against the City in the amount of 

$70,000.00 for Dan and $35,000.00 for Linda.

The next day, the Board issued notice that a meeting on contested claims 

would be held on January 10, 2018. Prior to that date, several residents of and/or 

property owners in the former City filed objections with the Board challenging the 

Johnsons’ administrative claims. Following a hearing, the Board issued a ruling 

regarding the Johnsons’ claims against the former City on February 15, 2018. The 

Board determined it was bound by the judgment entered in the defamation suit, 
5

had no jurisdiction to determine the validity of the judgment, and approved the 

Johnsons’ claim for the amount of the judgment entered in the defamation suit.

C. Judicial Review Proceeding.

On March 7, 2018, several residents of and/or property owners in the former 

City filed a petition for judicial review of the Board’s decision (the judicial review 

proceeding). The petition challenged the Board’s ruling on the merits and also 

challenged it on constitutional due process grounds. The Johnsons were permitted 

to intervene in the judicial review proceeding.

3

 

D. Declaratory Judgment Action.

On March 26, 2018, the action that is the subject of this appeal was filed 

(the declaratory judgment action). The plaintiffs in the declaratory judgment action 

are residents of and/or property owners in the discontinued City and will be referred 

to as “the residents.” They sought declaratory relief against the Johnsons, the 

Board, and the county4in the following forms:

(1) a declaration that the judgment entered in the defamation suit is void 

for lack of personal and subject matter jurisdiction;

(2) a declaration that the Board is not bound by the judgment entered in 

the defamation suit, the Board has jurisdiction to determine the validity of the 

judgment obtained by the Johnsons in the defamation suit, and the Board has the 

 

3 Any further developments in the judicial review proceeding are not in the record.

4 Presumably, the county was included as a party because it is believed the

property owned by the discontinued City becomes the property of the county. See

Iowa Code § 368.21 (“Any remaining balances shall be deposited in the county 

treasury where the former city was located.”). The county is not a party to this 

appeal.
6

obligation to conduct an evidentiary hearing to adjudicate factual and legal issues 

related to the contested claim of the Johnsons;

(3) a declaration that Iowa Code sections 368.21 and 368.22, as applied 

to the Board, violate the due process clauses of the United States and Iowa 

constitutions; and

(4) a declaration that the declaratory judgment action should be 

consolidated with the judicial review proceeding to resolve all issues in a single 

proceeding.

The declaratory judgment action was resolved by a motion to dismiss from 

the Board and a motion for summary judgment from the residents. The district 

court granted summary judgment to the residents against the Johnsons on the 

basis that the judgment entered in the defamation suit was of no legal effect 

because it was entered against a party that no longer existed at the time judgment 

was entered. The district court here concluded the district court in the defamation 

suit lacked jurisdiction to enter judgment against a non-existing entity. The district 

court here also concluded that, once the City was discontinued, the Johnsons were 

required to pursue their claims through the Board’s claim procedure. The district 

court rejected the Johnsons’ claim that there was a factual dispute whether the 

City was discontinued in an effort to avoid liability for the Johnsons’ claims, finding 

any such factual dispute was not material. The Johnsons appeal the granting of 

summary judgment to the residents.

Regarding the residents’ claim against the Board, the district court 

dismissed the claim based on the Board’s motion to dismiss pursuant to Iowa Rule 

of Civil Procedure 1.421(1)(f). The district court concluded the Board was not a 
7

party to the defamation suit and any dispute over the judgment entered in the 

defamation suit is a dispute between the other parties that does not concern the 

Board. Additionally, the district court relied on Iowa Code section 368.22 to 

conclude that the declaratory judgment action against the Board must be 

dismissed because any dispute the residents have with the Board can be resolved 

in the judicial review proceeding. The residents cross-appeal from this ruling.

II. Non-Validity of the Defamation Suit Judgment.

We will first address the Johnsons’ appeal of the district court’s grant of 

summary judgment to the residents.

A. Standard of Review.

“A ruling on summary judgment is reviewed for correction of errors at law. 

Summary judgment is appropriate when the record shows no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of law. The 

moving party has the burden of proof.” Munger, Reinschmidt & Denne, L.L.P. v. 

Lienhard Plante, 940 N.W.2d 361, 365 (Iowa 2020) (citations omitted).

B. Discussion.

The Johnsons do not directly challenge the district court’s conclusion that 

their failure to substitute parties and their obtainment of a judgment against a nonexisting entity is void due to lack of jurisdiction. Presumably, this lack of challenge 

stems from recognition of the authority supporting the district court’s conclusion. 

See, e.g., Bingaman v. Rosenbohm, 288 N.W. 900, 901 (Iowa 1939) (“As to the 

obligation to procure a substitution of parties-plaintiff, it would seem to require no 

argument to show that if interven[o]r was to take a valid decree against anyone, 

such person must be brought into court. But nothing was done in that direction 
8

and thus there was no party in the case against whom a decree could be entered.”); 

Dist. Twp. of Clay v. Indep. Dist. of Buchanan, 18 N.W. 859, 861 (Iowa 1884) (“In 

the very nature of things the court could not have jurisdiction either of subjectmatter or person in an action in which the party named as defendant had no 

existence.”).

Instead, the Johnsons claim a factual dispute precludes entry of summary 

judgment. They claim there is a genuine issue of material fact whether the City

was discontinued in an effort to defeat creditors (i.e., the Johnsons). They cite to 

Iowa Code chapter 684 in support of their contention the discontinuance of the City

resulted in a fraudulent transfer. The district court rejected this argument, finding 

the issue of whether the intent of the discontinuance was to defeat creditors was 

not material. We agree with the district court.

In order to avoid summary judgment as a result of a factual dispute, the 

disputed fact must be “material.” See Munger, 940 N.W.2d at 365. “An issue of 

fact is ‘material’ only when the dispute is over facts that might affect the outcome 

of the suit, given the applicable governing law.” Junkins v. Branstad, 421 N.W.2d 

130, 132 (Iowa 1988). Nothing in Iowa Code chapter 368 precludes 

discontinuance of a city based on the intent behind the decision to initiate the 

discontinuance process. We imagine that a major driving force behind the decision 

of any city to invoke discontinuance proceedings under chapter 368 may be 

financial woes of the city. Here, the intent of the City’s representatives in initiating 

the process for discontinuance of the City does not affect the outcome of this 

declaratory judgment action, so any dispute over that intent is not material and 

does not defeat a request for summary judgment.
9

Furthermore, two other details undermine the Johnsons’ argument. First, 

discontinuance of the City did not extinguish the Johnsons’ claim for damages or 

eliminate their potential ability to collect on their claims if the claims are determined 

to have merit. Chapter 368 provides a process to determine and adjudicate the 

merits of any claims against the discontinued City and a mechanism for 

enforcement of such claims through the levy of taxes. See Iowa Code § 368.21. 

As a result, the intent of the City’s representatives in invoking discontinuance 

proceedings is not material in this action challenging the legality of the judgment 

obtained against a defunct entity in the defamation suit.

Second, Iowa Code chapter 684, cited by the Johnsons in support of their 

position, contemplates some type of action being filed seeking to set aside a

fraudulent transaction. See, e.g., id. §§ 684.5(3) (referencing “a creditor making a 

claim for relief” and stating such creditor “has the burden of proving the elements 

of the claim for relief by a preponderance of the evidence”), .7(1) (referencing “an 

action for relief against a transfer or obligation under this chapter”), .9 (setting 

periods of limitation for “claim[s] for relief” depending on sections of chapter 684 

claimed to be violated). Here, the Johnsons filed no claims pursuant to chapter 

684 seeking to set aside or avoid any transactions. Having filed no such claims, 

the Johnsons cannot use the claimed merits of such unfiled claims as a means of 

generating a fact question to defeat summary judgment in this declaratory 

judgment action. Any such claimed factual dispute is simply not material to the 

issue at hand.

We find no issue of material fact that would affect the outcome of this 

declaratory judgment action. We also find no error in, and the Johnsons do not 
10

challenge, the district court’s conclusion that the judgment in the defamation suit 

is void due to the judgment being obtained against a non-existing party with no 

substitution having been undertaken after the City was legally discontinued. 

Therefore, we affirm the district court’s order granting summary judgment to the 

residents against the Johnsons.

III. Dismissal of Claims Involving the Board.

Next, we turn to the cross-appeal by the residents challenging the district 

court’s dismissal of the declaratory relief claims against the Board based on a 

pretrial motion to dismiss.

A. Standard of Review.

We review the district court’s ruling on a motion to dismiss for correction of 

errors at law. Thongvanh v. State, 938 N.W.2d 2, 8 (Iowa 2020). “For purposes 

of reviewing a ruling on a motion to dismiss, we accept as true the petition’s wellpleaded factual allegations, but not its legal conclusions.” Id. (quoting Shumate v. 

Drake Univ., 846 N.W.2d 503, 507 (Iowa 2014)). “When the petition’s allegations 

are taken as true yet fail to state a claim upon which relief may be granted, we will 

affirm the district court’s granting of the motion to dismiss.” Id. 

B. Discussion.

The district court granted the Board’s motion to dismiss, in part, on the basis 

that the Board was not a party to the defamation suit and any issues regarding the 

validity of the judgment in that suit will need to be decided between the parties to 

it. The district court noted another basis for dismissal, namely that the Board’s 

decision to be bound by the judgment in the defamation suit was currently the 

subject of the judicial review proceeding and Iowa Code section 368.22 makes that 
11

proceeding the “exclusive means” by which the residents can challenge the 

Board’s actions. In making such decision, however, the district court 

acknowledged that the issues in the declaratory judgment action were “intertwined” 

with the issues in the judicial review proceeding and:

That does not mean that all the issues presented in this case will be 

determined in the judicial review case or should be determined by 

the same standards. Whether the judicial review will cover part or all 

of the allegations of the Petition is in question. This includes 

jurisdictional issues and the effect or value of the judgment at issue.

We agree with these observations made by the district court, but we 

conclude they require the opposite result when ruling on a motion to dismiss. To 

sustain a motion to dismiss, the moving party “must show that no state of facts is 

conceivable under which the plaintiffs might show a right of recovery.” Below v. 

Skarr, 569 N.W.2d 510, 511 (Iowa 1997). That cannot be done in this case. It is 

true that Iowa Code section 368.22(2) states “the judicial review provisions of this 

section and chapter 17A shall be the exclusive means by which a person or party 

who is aggrieved or adversely affected by agency action may seek judicial review 

of that agency action.” However, section 368.22(3) goes on to limit the portions of 

section 17A.19 that apply to agency action under chapter 368. Iowa Code 

§ 368.22(2) (“The court’s review on appeal of a decision is limited to questions 

relating to jurisdiction, regularity of proceedings, and whether the decision 

appealed from is arbitrary, unreasonable, or without substantial supporting 

evidence.”). The portions of section 17A.19 that are made inapplicable to chapter 

368 include provisions that would allow the reviewing court to assess the 

constitutionality of the law applied, whether the Board exceeded its authority, 

whether the Board based its decision on an erroneous interpretation of the law, 
12

whether the Board based its decision upon a procedure or decision-making 

process prohibited by law or without following the prescribed procedure or 

decision-making process, and whether the Board based its decision on facts that 

were not supported by substantial evidence in the record. See id. 

§§ 368.22(3)(e), 17A.19(10)(a)–(f). It very well may be that resolution of the 

judicial review proceeding or the ruling in this appeal invalidating the judgment in 

the defamation suit will resolve the claims for declaratory relief against the Board 

in this proceeding. However, we cannot say that with certainty, especially given 

the sizeable gaps in the scope of reviewable issues in the judicial review 

proceeding.

5

 There has not been a showing “that no state of facts is conceivable 

under which the plaintiffs might show a right of recovery.” See Below, 569 N.W.2d 

at 511; accord Christ v. Maryland Dept. of Nat. Res., 644 A.2d 34, 37 (Md. 1994) 

 

5 The Board argues “[u]nless a statute expressly states otherwise, there is no 

exception to the exclusivity of judicial review for certiorari, declaratory judgment, 

or injunction,” citing Salsbury Laboratories v. Iowa Department of Environmental 

Quality, 276 N.W.2d 830, 835 (Iowa 1979). See also Iowa Code § 17A.19 (“Except 

as expressly provided otherwise by another statute referring to this chapter by 

name, the judicial review provisions of this chapter shall be the exclusive means

by which a . . . party who is aggrieved or adversely affected by agency action may 

seek judicial review of such agency action.”). However, the Board’s argument 

overlooks the fact that Iowa Code section 368.22(3) specifically refers to section 

17A.19 in limiting the scope of review of the Board’s actions. By specifically 

carving out the exceptions listed, section 368.22(3) prevents judicial review 

pursuant to section 17A.19 of those issues. The express exception negates the 

exclusivity provisions of section 17A.19 with regard to the excepted issues and 

makes them available for review by other means. We note there is no indication 

the residents are seeking to utilize this declaratory judgment action to address 

issues that can and will be resolved in the judicial review proceeding. Rather, this 

declaratory judgment action appears to be a prudent attempt to preserve the ability 

to seek declaratory relief on any issues that are statutorily prohibited from being 

reviewed in the judicial review proceeding. 
13

(“This Court has emphasized, time after time, that dismissal ‘is rarely appropriate 

in a declaratory judgment action.’”).

C. The Dissent.

Before leaving this issue, we will address the partial dissent, which is 

directed at this issue. To begin, we note that we are philosophically in agreement 

with the dissent that resolution of this issue depends on the text of the statute. We 

merely disagree on the execution of that philosophy. See Antonin Scalia & Bryan 

A. Garner, Reading Law: The Interpretation of Legal Texts 59 (2012) (“Principles 

of interpretation are guides to solving the puzzle of textual meaning, and as in any 

good mystery, different clues often point in different directions. . . . The skill of 

sound construction lies in assessing the clarity and weight of each clue and 

deciding where the balance lies.”).

In terms of our differences in execution, it appears the crux of the 

disagreement stems from the question of what to make of Iowa Code section 

368.22(3) in relation to section 368.22(2). The dissent concludes section 

368.22(3) merely shapes the judicial review process as articulated in section 

368.22(2). In contrast, we conclude section 368.22(3) creates an exception to the 

limited review process articulated in section 368.22(2). Both conclusions have

merit. We come down on our side of this close call based on a reading of section 

368.22 in conjunction with section 17A.19.

The exclusivity provision of section 368.22(2) upon which the Board and the 

dissent relies is, in itself, largely unnecessary, as the same exclusivity language 

already appears in section 17A.19. Section 17A.19 states:
14

Except as expressly provided otherwise by another statute referring 

to this chapter by name, the judicial review provisions of this chapter 

shall be the exclusive means by which a person or party who is 

aggrieved or adversely affected by agency action may seek judicial 

review of such agency action. However, nothing in this chapter shall 

abridge or deny to any person or party who is aggrieved or adversely 

affected by any agency action the right to seek relief from such action 

in the courts.

Because of this provision in section 17A.19, it would be unnecessary to repeat 

those exclusivity provisions in section 368.22(2), but for the fact the section goes 

on to limit, or shape, that exclusivity by using this language:

The judicial review provisions of this section and chapter 17A shall 

be the exclusive means by which a person or party who is aggrieved 

or adversely affected by agency action may seek judicial review of 

that agency action. The court’s review on appeal of a decision is 

limited to questions relating to jurisdiction, regularity of proceedings, 

and whether the decision appealed from is arbitrary, unreasonable, 

or without substantial supporting evidence. The court may reverse 

and remand a decision of the board or a committee, with appropriate 

directions.

(Emphasis added.) While the dissent concludes section 368.22(3) goes on to 

shape the above exclusivity language, we conclude the shaping has already been 

concluded in section 368.22(2) and section 368.22(3)’s purpose is to create an 

exception to the exclusivity provisions of section 368.22(2). We reach this 

conclusion because section 368.22(3) expressly references section 17A.19, thus 

triggering the exception to exclusivity invited by section 17A.19’s language 

“[e]xcept as expressly provided otherwise by another statute referring to this 

chapter by name.” If, as the dissent suggests, section 368.22(3) is merely shaping 

the exclusivity provisions of section 368.22(2), it would not be necessary to 

reference section 17A.19’s exception-to-exclusivity provision because section 

368.22(2) already limited or shaped the exclusivity without reference to section 
15

17A.19. See, e.g., Star Equip., Ltd. v. State, 843 N.W.2d 446, 455 (Iowa 2014)

(“[W]e do not interpret statutes so they contain surplusage.” (quoting Thomas v. 

Gavin, 838 N.W.2d 518, 524 (Iowa 2013))). If further limiting or shaping was 

intended, the legislature could have accomplished that goal via the language in 

section 368.22(3) without reference to section 17A.19.6 However, by expressly 

referencing section 17A.19, we conclude the legislature intended to trigger the 

exception-to-exclusivity provision of section 17A.19 with regard to the topics 

referenced in section 368.22(3)(a)–(f).

That said, the dissent is thoughtful and well-reasoned, and we acknowledge 

the points it makes contribute to this being a very close call. Besides our subtle 

differences in interpreting the text of the statutes at issue, the primary factor that 

causes us to come down on the other side of this issue is the procedural posture 

of this case, which is a ruling on a motion to dismiss. Even with our interpretation 

of the statue, it is extremely unlikely that any remnant of the residents’ claims in 

this action will remain viable after the invalidation of the default judgment by this 

ruling and resolution of the judicial review proceeding, and, even then, any remnant 

may be a proper subject for resolution by summary judgment. Nevertheless, we 

simply cannot say, at the motion-to-dismiss phase of this proceeding, that “no state 

of facts is conceivable under which the plaintiffs might show a right of recovery.” 

Below, 569 N.W.2d at 511. Therefore, the dismissal of the declaratory judgment 

 

6 Better yet, such limiting or shaping could have been completed within section 

368.22(2) without the need to do so in a separate section, which may have made 

the Board’s position more persuasive.
16

claims against the Board is reversed and the case is remanded for further 

proceedings.

IV. Conclusion.

We find summary judgment was properly granted to the residents, as the 

judgment entered in the defamation suit is void due to the judgment being entered 

against an entity that no longer exists. Because there is a conceivable state of 

facts under which the residents might show a right of recovery on their claims for 

declaratory relief against the Board, the dismissal of such claims is reversed and 

the case is remanded for further proceedings on those claims.

AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSSAPPEAL.

Bower, C.J., concurs; May, J., partially dissents.
17

MAY, Judge (concurring in part and dissenting in part).

I appreciate the majority’s thoughtful, well-written opinion. And I agree we 

should affirm the district court’s grant of summary judgment against Dan and Linda 

Johnson. But I part ways as to the City Development Board of the State of Iowa 

(the Board)’s motion to dismiss. I believe the district court was right to grant it. As 

to that issue, I respectfully dissent. 

Iowa Code chapter 368 (2016) governs “city development,” which includes 

the “incorporation, discontinuance[,] or boundary adjustment” of cities. Iowa Code 

§ 368.1(5). This case is about a city’s “discontinuance,” which means the 

“termination of a city.” Id. § 368.1(8). 

Usually, the discontinuance process involves several steps. See id.

§ 368.3. First, the city council must adopt “a resolution of intent to discontinue.” 

Id. Then the council must call a “public hearing.” Id. Then the council must pass 

a “resolution of discontinuance.” Id. Then, if requested, the city must hold a 

“special election” on the resolution. Id. If a majority of voters “approve the 

discontinuance,” the city clerk must notify the Board, a five-member body

“established in section 368.9.” Id. §§ 368.1(3) (defining “board” as “the city 

development board established in section 368.9”), .3. The Board must then “take 

control of the property of the discontinued city” and “supervise procedures 

necessary to carry out the discontinuance in accordance with section 368.21.” Id.

§ 368.3. Among other things, this requires the Board to “receive and adjudicate 

claims against the discontinued city.” Id. § 368.21. The Board must also “cause 

necessary taxes to be levied against the property within the discontinued city to 

pay claims allowed.” Id. So, of course, people who own property “within the 
18

discontinued city” have an ongoing interest in what claims the Board decides to 

allow or disallow. 

The present case involves the City of Mount Union. Its council pursued 

discontinuance under chapter 368. And its voters approved. Then, consistent with 

chapter 368, the Board “receiv[ed] and adjudicate[ed] claims against the 

discontinued city.” Id. § 368.3. As one important particular: the Board decided to 

allow certain claims of Dan and Linda Johnson. 

That decision was not universally popular. Many residents were displeased. 

Some of those residents challenged the Board’s decision through a judicial review 

action. It is now pending.

But that judicial review action is not before us. Instead, the case before us 

is a declaratory judgment action. It was filed by another group of residents, whom 

I refer to collectively as “Marek.” Marek’s petition names the Board as a defendant. 

And, like the judicial review action, Marek’s petition challenges the Board’s 

decision to honor the Johnsons’ claims. 

In response to Marek’s petition, the Board filed a motion to dismiss. Citing 

Iowa Code section 368.22(2), the Board pointed out that “judicial review is the 

exclusive remedy for challenging a decision of the Board.” The district court 

granted the motion and ordered that, “as to the . . . Board,” the declaratory 

judgment action “is dismissed.”

Now, on cross-appeal, Marek asks this court to consider whether Marek’s 

declaratory judgment action “is barred by the exclusive remedy provisions of Iowa 

Code § 368.22.” The answer to that question depends on “the ‘text of the statute,’ 

the ‘words chosen by the legislature.’” Fishel v. Redenbaugh, 939 N.W.2d 660, 
19

663 (Iowa Ct. App. 2019) (citation omitted). In section 368.22, the legislature said 

this:

1. a. A city or a resident or property owner in the territory or 

city involved may appeal a decision of the board or a committee, or 

the legality of an election, to the district court of a county which 

contains a portion of any city or territory involved.

b. Appeal must be filed within thirty days of the filing of a 

decision or the publication of notice of the result of an election.

c. Appeal of an approval of a petition or plan does not stay the 

election.

2. The judicial review provisions of this section and chapter 

17A shall be the exclusive means by which a person or party who 

is aggrieved or adversely affected by agency action may seek 

judicial review of that agency action. The court’s review on appeal 

of a decision is limited to questions relating to jurisdiction, regularity 

of proceedings, and whether the decision appealed from is arbitrary, 

unreasonable, or without substantial supporting evidence. The court 

may reverse and remand a decision of the board or a committee, 

with appropriate directions.

3. The following portions of section 17A.19 are not applicable 

to this chapter:

a. The part of subsection 2 which relates to where 

proceedings for judicial review shall be instituted.

b. Subsection 5.

c. Subsection 8.

d. Subsection 9.

e. Subsection 10.

f. Subsection 11.

(Emphasis added.)

As these words make clear, a judicial review action pursuant to section 

368.22 is the only way (“the exclusive means”) to challenge in court (to “seek 

judicial review of”) any action by the Board (“agency action”). See Iowa Code 

§ 368.22(2). And Marek’s declaratory judgment action is not a judicial review 

action pursuant to section 368.22. So it is not a permissible means to challenge 

the Board’s actions. It is barred by the exclusivity provision contained in section 

368.22(2). So the district court had no choice but to dismiss Marek’s action. 
20

Marek suggests a different result is supported by subsection 368.22(3). It 

provides that certain “portions of section 17A.19 are not applicable to this chapter.”

Id. § 368.22(3). But I do not read this language to authorize lawsuits—like 

Marek’s—that challenge the Board’s actions outside of section 368.22’s 

“exclusive” judicial review process. See id. § 368.22(2); see also State v. Pettijohn, 

899 N.W.2d 1, 16 (Iowa 2017) (“Interpreting a statute requires us to assess it in its 

entirety to ensure our interpretation is harmonious with the statute as a whole

rather than assessing isolated words or phrases.”).

Instead, I think subsection 368.22(3) merely shapes the judicial review 

process in chapter 368 cases.7 Although “the judicial review provisions of . . . 

chapter 17A” are generally applicable to section 368.22 judicial review actions,

subsection 368.22(3) makes six particular “portions” of section 17A.19 “not 

applicable” to those actions. See Iowa Code § 368.22(2), (3). 

For example, in an ordinary judicial review action, subsection 17A.19(9) 

would require the district court to “make a separate and distinct ruling on each 

material issue on which the court’s decision is based.” But, because of paragraph

368.22(3)(d), subsection 17A.19(9) is “not applicable” to chapter 368. And so, 

 

7 The Board suggests that, in subsection 368.22(3), the legislature took an 

“unusual step of limiting the scope of review for [b]oard decisions.” From my 

research, though, it does not seem rare for the legislature to modify the judicial 

review process to fit particular situations. For example, in section 455I.9, the 

legislature authorized “judicial review pursuant to section 17A.19” but also 

specified several “exceptions.” Similarly, in section 441.37B, the legislature 

authorized “judicial review . . . as provided in chapter 17A” but then also limited the 

effect of “section 17A.19, subsection 2.” Likewise, in section 514G.110, the 

legislature authorized “judicial review” but also specified various modifications. For 

example, in a judicial review action under section 514G.110(9)(c), “[a]llegations

. . . under section 17A.19, subsection 10, must be stated with particularity.”
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subsection 17A.19(9)’s requirement of “separate and distinct ruling[s]” is “not 

applicable” to section 368.22 judicial review actions. It just doesn’t apply.

The same is true of subsection 17A.19(10). It authorizes certain grounds 

for relief that are usually available in judicial review cases. But because of 

paragraph 368.22(3)(e), subsection 17A.19(10) is “not applicable” to chapter 368. 

And so the grounds of relief described in subsection 17A.19(10) are not available 

in section 368.22 judicial review actions. Instead, as subsection 368.22(2) plainly 

states, “[t]he court’s review on appeal of a decision [of the Board] is limited to

questions relating to jurisdiction, regularity of proceedings, and whether the 

decision appealed from is arbitrary, unreasonable, or without substantial 

supporting evidence.” (Emphasis added.)

Marek suggests, however, that because grounds for relief described in 

subsection 17A.19(10) are not available in section 368.22 judicial review actions, 

it follows that those same grounds for relief are available through a separate 

declaratory judgment action. I disagree for two reasons. My first concern is 

subsection 368.22(2). As already mentioned, subsection 368.22(2) commands 

that the judicial review process “shall be” the “exclusive means” to challenge the 

Board’s actions. But if parties like Marek can challenge the Board’s actions 

through declaratory judgment lawsuits, then the judicial review process is no longer 

the “exclusive means.” It is just an option.

I am also concerned by the language of subsection 368.22(3) itself. Unlike 

some provisions of our Code, subsection 368.22(3) does not expressly authorize 

lawsuits outside of the judicial review process. See, e.g., Iowa Code § 22.10(1), 

(3). 
22

Instead, subsection 368.22(3) merely provides that certain “portions of 

section 17A.19 are not applicable to” chapter 368. If anything, this language 

narrows the rights of aggrieved parties like Marek. It narrows their rights by 

preventing them from relying on certain advantageous features of section 17A.19. 

Certainly, subsection 368.22(3) does not expand the rights of aggrieved parties. It 

does not provide them a second, alternative route to court—whether labelled a 

declaratory judgment action or not—in addition to section 368.22’s “exclusive” 

judicial review process.

Marek raises a worthwhile point, though, about constitutional claims. In an 

ordinary judicial review action, paragraph 17A.19(10)(a) authorizes courts to 

determine that an agency’s action was “[u]nconstitutional on its face or as applied 

or [was] based upon a provision of law that is unconstitutional on its face or as 

applied.” As explained, though, subsection 17A.19(10) is “not applicable” to 

section 368.22 judicial review actions. Moreover, section 368.22 does not

expressly address constitutional concerns. One might infer that courts are 

prevented from addressing constitutional concerns during the section 368.22 

judicial review process. From this, one might further infer that—because there 

must be some pathway for courts to review constitutional concerns—we should

permit additional lawsuits outside of the section 368.22 judicial review process.

See Iowa Const. art. XII, § 1 (“This constitution shall be the supreme law of the 

state, and any law inconsistent therewith, shall be void.”); Goodwin v. Iowa Dist. 

Ct., 936 N.W.2d 634, 649 (Iowa 2019) (McDonald, J., specially concurring) (noting 

“the Iowa Constitution provides any law—without regard to its source—

inconsistent therewith ‘shall be void’” (citing Iowa Const. art. XII, § 1)).
23

I think there is a better way. In its appellate brief, the Board made these 

statements:

Though constitutionality is not listed explicitly in [s]ection 368.22, the 

Board’s proceedings and decisions, if unconstitutional, would be 

subject to review by the courts as irregular or unreasonable. 

Plaintiffs can challenge the constitutionality of Board 

decisions and proceedings pursuant to [s]ection 368.22(2) despite 

other limits to the scope of the [c]ourt’s review. Specifically, the 

[c]ourt can review the constitutionality of Board decisions under 

reasonableness and irregularity review of Board action pursuant to 

[s]ection 368.22(2). Because the constitutionality of Board action is 

subject to judicial review, Plaintiffs’ argument that they may 

challenge Board action by declaratory judgment should fail.

(Internal citations omitted.)

I think we should adopt the Board’s position as our holding. It gives 

maximum effect to the legislature’s words while assuring Marek will have a forum 

for constitutional concerns. See Iowa Code § 4.4(1) (stating “[i]n enacting a 

statute, it is presumed that [c]ompliance with the Constitutions of the state and of 

the United States is intended”); In re Guardianship of Kennedy, 845 N.W.2d 707, 

714 (Iowa 2014) (applying doctrine of “constitutional avoidance” and adopting view 

of statute that would avoid “serious due process concerns”); see also Clark v. 

Martinez, 543 U.S. 371, 381–82 (2005) (noting the doctrine of constitutional 

avoidance “is a tool for choosing between competing plausible interpretations of a 

statutory text, resting on the reasonable presumption that Congress did not intend 

the alternative which raises serious constitutional doubts” and further noting “[t]he 

canon is thus a means of giving effect to congressional intent, not of subverting 

it”).

One final point: I recognize that, in general, courts “rarely dismiss a petition 

for a failure to state a claim upon which any relief may be granted.” Turner v. Iowa 
24

State Bank & Tr. Co. of Fairfield, 743 N.W.2d 1, 3 (Iowa 2007). But when a 

statutory process is the “exclusive” means for addressing a particular class of 

claims, “the district court ha[s] no choice but to dismiss” lawsuits that attempt to 

raise those claims outside the “exclusive” statutory process. See Bailey v. 

Batchelder, 576 N.W.2d 334, 342 (Iowa 1998) (“Workers’ compensation is an 

exclusive remedy which, if applicable, deprives the district court of subject matter 

jurisdiction. Thus, the district court had no choice but to dismiss [the plaintiff’s]

negligence action . . . .”); see, e.g., Suckow v. NEOWA FS, Inc., 445 N.W.2d 776, 

780 (Iowa 1989) (holding “district court . . . correctly sustained the employer’s 

motion to dismiss” because Iowa Code § 85.20 (1985) provided that a workers’

compensation proceeding was “the exclusive remedy” and, therefore, “the district 

court did not have jurisdiction to decide” employee’s lawsuit against employer for 

injuries sustained on the job); Walmart Stores, Inc. v. Iowa Civ. Rts. Comm’n, No. 

15-1691, 2016 WL 7403726, at *1 (Iowa Ct. App. Dec. 21, 2016) (affirming 

dismissal of petition for writ of certiorari that sought to circumvent Iowa Code 

section 17A.19’s (2015) express command that its “judicial review provisions” are 

“the exclusive means” to obtain judicial review of agency action; noting “[t]he 

question was jurisdictional and properly resolved by motion to dismiss”).

Section 368.22 (2016) created a judicial review process and made it “the 

exclusive means” for Marek to challenge the Board’s decisions. Marek’s 

declaratory judgment action is not a permissible alternative. The district court was 

right to dismiss Marek’s claims against the Board. As to that issue, I respectfully 

dissent. As to all other matters, I concur.