Myron Dennis Behm, Burton J. Brooks, Bobby Lee Langston, David Leon Brodsky, Jeffrey R. Olson, and Geoff Tate Smith v. City of Cedar Rapids and Gatso USA, Inc. ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 16–1031
Filed August 31, 2018
MYRON DENNIS BEHM, BURTON J. BROOKS, ROBBY LEE
LANGSTON, DAVID LEON BRODSKY, JEFFREY R. OLSON, and
GEOFF TATE SMITH,
Appellants,
vs.
CITY OF CEDAR RAPIDS and GATSO USA, INC.,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County,
Christopher L. Bruns, Judge.
Plaintiffs request further review of court of appeals decision
affirming summary judgment in favor of the defendants on plaintiffs’
putative class action challenging city’s automated traffic enforcement
ordinance. DECISION OF COURT OF APPEALS VACATED;
JUDGMENT OF DISTRICT COURT AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED.
James C. Larew of Larew Law Office, Iowa City, for appellants.
Elizabeth D. Jacobi, Assistant City Attorney, for appellee City of
Cedar Rapids.
Paul D. Burns and Laura M. Hyer of Bradley & Riley PC, Iowa City,
for appellee Gatso USA, Inc.
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APPEL, Justice.
In this case, we once again consider a range of issues related to an
automated traffic enforcement (ATE) system. The City of Cedar Rapids
(Cedar Rapids or City) enacted an ordinance designed to authorize and
implement the establishment of an ATE system intended to detect drivers
traveling in excess of speed limits within Cedar Rapids. Pursuant to the
ordinance, Cedar Rapids contracted with Gatso USA, Inc. (Gatso) to
install the ATE system, which included mounted cameras and radar
equipment, and to provide the City with evidence of vehicles violating the
speed limit at the ATE locations. The ATE ordinance imposed a civil
penalty for a violation.
The plaintiffs filed a class-action petition against Cedar Rapids and
Gatso. The plaintiffs sought damages and declaratory and injunctive
relief, claiming the ATE system as implemented by the defendants
violated the equal protection, due process, and privileges and immunities
clauses of the Iowa Constitution. The plaintiffs also raised a number of
other challenges, asserting that the administrative remedies under the
ATE ordinance were in conflict with Iowa law, that the ATE ordinance as
implemented by the City’s contract with Gatso unconstitutionally
delegated governmental power to a private entity, and that the
defendants were unjustly enriched by the revenues generated by the ATE
system.
The district court granted the defendants summary judgment, and
the plaintiffs appealed.
We transferred the case to the court of appeals. The court of
appeals affirmed the district court. For the reasons expressed below, we
vacate the decision of the court of appeals and affirm in part and reverse
in part the judgment of the district court.
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I. Factual and Procedural Background.
A. Structure of Cedar Rapids’ ATE System.
1. The ordinance. In 2009, Cedar Rapids enacted an ordinance
establishing an ATE system. Cedar Rapids, Iowa, Mun. Code § 61.138
(2016). 1 The ordinance authorizes Cedar Rapids to “deploy, erect or
cause to have erected an automated traffic enforcement system for
making video images of vehicles that . . . fail to obey speed regulations
. . . in the city.” Id. § 61.138(a). The ordinance authorizes the hiring of a
contractor “with which the City of Cedar Rapids contracts to provide
equipment and/or services in connection with the Automated Traffic
Enforcement System.” Id. § 61.138(b)(2).
The ordinance provides that when the ATE system generates an
image of a speeding vehicle, a notice of violation is mailed to the vehicle
owner within thirty days after obtaining the owner’s identifying
information. Id. § 61.138(d)(1). The ordinance further provides that a
vehicle owner may contest the citation by requesting an administrative
hearing “held at the Cedar Rapids Police Department before an
administrative appeals board . . . consisting of one or more impartial fact
finders.” Id. § 61.138(e)(1). Upon receiving the board’s decision, the
ordinance provides a vehicle owner with the option of either paying the
fine or submitting a request that the City file a municipal infraction in
the small claims division of district court. Id. § 61.138(e)(2).
In any small claims court proceeding, Cedar Rapids is required to
show “by clear, satisfactory, and convincing evidence” that the vehicle
was travelling in excess of the posted speed limit. Iowa Code
§ 364.22(6)(b) (2015). The ordinance authorizes a fine of between $25
1The ordinance is available online at https://www.municode.com/library/ia/
cedar-rapids/codes/code_of_ordinances?nodeld=CH6ATRRE_61.138AUTREN.
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and $750. Cedar Rapids, Iowa, Mun. Code § 61.138(c)–(d). The
ordinance also notes that state-mandated court costs are added to the
amount of the fine if the vehicle owner is found guilty after a small
claims court proceeding. Id. § 61.138(e); see also Iowa Code § 364.22(8).
2. Gatso’s contract with Cedar Rapids. Pursuant to the ordinance,
Cedar Rapids entered into a contract with Gatso in 2009. The contract
provided that Cedar Rapids and Gatso had previously identified locations
where ATE equipment would be installed. Gatso was responsible for all
costs and expenses associated with the installation, operation, and
maintenance of the ATE equipment. Gatso agreed to keep the ATE
system in compliance with all Cedar Rapids and Iowa Department of
Transportation (IDOT) standards.
The contract provided that once the ATE system was operational,
Gatso was responsible for developing images and obtaining data from the
ATE equipment and presenting the information to the City as “an
electronic violation package.” The contract further provided that such
violation packages would be processed through a web-based application
that would allow the City’s police department to review, approve, or reject
each violation before a citation was issued.
The contract provided that if Cedar Rapids rejected a violation,
Cedar Rapids would report to Gatso the basis for the rejection. If Cedar
Rapids approved a violation package, the contract called upon Gatso to
send a citation to the registered owner of the vehicle by mail using its
web-based program. If the registered owner chose to pay the citation,
Gatso would accept violation payments on behalf of the City by check,
credit card, or money order.
Under the contract, Gatso’s fee for services was $30 per paid
violation, later reduced to $25 per paid violation. For its ATE services,
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Gatso received payments of $817,960, $2,537,280, $2,152,650,
$2,137,140, and $1,163,400 from Cedar Rapids for calendar years 2010
through 2014. For the period between March 17, 2015, and January 25,
2016, Gatso received $1,749,143.
B. Gatso’s Notices to Alleged Violators.
1. Content of notice of violation. Each of the plaintiffs in this case
received a “Notice of Violation” of the ATE ordinance. The notice of
violation displayed the City of Cedar Rapids logo and had the signature
of the Cedar Rapids law enforcement officer who approved issuing the
citation.
The front page of the notice of violation provided information about
the time and place of the alleged violation along with two photos of the
vehicle recorded by the ATE system. The front page of the notice of
violation provided the following admonition:
Failure to pay the civil fine or to contest liability within (30)
calendar days is an admission of liability in the full amount
of the civil fine assessed and will result in the loss of your
right to a hearing. In addition, you may be subject to formal
collection procedures including, but not limited to, being
reported to a credit reporting agency, and a civil lawsuit.
The backside of the notice of violation provided information about
how to pay the civil penalty. It also stated that a person receiving the
notice of violation had a right to contest the violation in person at an
administrative hearing. The notice of violation suggested that recipients
wishing to contest the violation “review the city ordinance, the images,
and the actual recorded video (if applicable) of the infraction” and
provided a limited list of “valid defenses.” The list of valid defenses does
not include a defense that the driver was a person other than the
vehicle’s registered owner. The backside of the notice of violation
cautioned that the failure to appear at an administrative hearing “will
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result in a final determination of liability.” The notice of violation made
no mention of the recipient’s option of requesting Cedar Rapids initiate a
small claims action in district court where Cedar Rapids would bear the
burden of proof of showing a violation “by clear, satisfactory, and
convincing evidence.” Iowa Code § 364.22(6)(b).
2. Content of “notice of determination of liability.” If the first notice
of violation did not result in payment or the scheduling of an
administrative hearing, Gatso sent out another document to the vehicle
owner entitled “Notice of Determination 2nd Notice.” As with the notice
of violation, the notice of determination carried the City of Cedar Rapids
logo and had the signature of a law enforcement officer.
The notice of determination provided the same information about
the time and place of the alleged offense as the notice of violation. It
contained, however, a slightly different admonition than the original
notice of violation:
Failure to pay the civil fine or to appeal this determination
within (30) calendar days may result in the possible
imposition of a late fee. In addition, you may be subject to
formal collection procedures including, but not limited to,
being reported to a credit reporting agency, and a civil
lawsuit.
The backside of the notice of determination also differed from the
notice of violation. Unlike the notice of violation, the notice of
determination declared that citizens could resolve the notice of
determination by paying the fine or “request[ing] a trial before a judge or
magistrate” within thirty days of the date listed on the front of the notice.
3. Content of nonresident request for hearing, non-appearance form.
A third form generated with the Cedar Rapids logo was entitled “Request
for Hearing, Non-Appearance Form.” This form was available to vehicle
owners who did not reside in Iowa. The request for hearing, non-
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appearance form declared that the form “must be completed in full
including a statement of facts specifying grounds for challenging the
violation notice.” The request for a hearing, non-appearance form listed
certain defenses, but it did not mention the option of requesting that
Cedar Rapids institute a municipal infraction action in district court.
C. Appeal Before Administrative Appeals Board. Although the
ATE ordinance refers to an administrative appeals board, the ordinance
states that the board consisted of “one or more impartial fact finders.”
Cedar Rapids, Iowa, Mun. Code § 61.138(e)(1). In all the administrative
hearings involved in this case, the administrative appeals board
consisted of a single person. While the ordinance calls for an impartial
administrative appeals board, the ordinance does not establish
procedures or criteria for appointment. The ordinance does not describe
the burden of proof or the procedures to be applied in the administrative
proceedings.
The plaintiffs in this case received a “Findings, Decision and
Order” in connection with their administrative appeals. A person
identified as an “Administrative Hearing Officer” signed the documents.
The documents declared “IT IS ORDERED” that liability has been
determined and presented a dollar amount representing a “JUDGMENT
TOTAL.” The findings, decision, and order expressly advised recipients of
the option of requesting that a municipal infraction be issued and filed in
district court.
D. IDOT Rulemaking and Enforcement Actions.
1. IDOT rules related to ATE systems. Several years after the
Cedar Rapids ATE system commenced operation, in February of 2014,
the IDOT promulgated administrative rules relating to ATE systems.
Iowa Admin. Code ch. 761—144. The rules declared that their purpose
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was “to establish requirements, procedures, and responsibilities in the
use of automated traffic enforcement systems on the primary road
system” and to “ensure[] consistency statewide” in their use. Id. r. 761—
144.1.
The IDOT rules sharply restricted the implementation of ATE
systems on primary roadways. The rules directed that ATE systems were
to be considered only “after other engineering and enforcement solutions
have been explored and implemented” and were not to be used as a long-
term solution to speeding or red-light running. Id. r. 761—144.4(1)(a)–
(b). The rules provided that ATE systems were to be used only “in
extremely limited situations on interstate roads because [such roads] are
the safest class of any roadway in the state and typically . . . carry a
significant amount of non-familiar motorists.” Id. r. 761—144.4(1)(c).
The rules further stated that ATE systems shall only be considered “in
areas with a documented high-crash or high-risk location” in “[a]n area
or intersection with a significant history of crashes which can be
attributed to red-light running or speeding,” or “[a] school zone.” Id.
r. 761—144.4(1)(d).
The IDOT rules contained minimum requirements for the operation
of ATE systems. Id. r. 761—144.6. Among other requirements, the rules
provided that ATE systems could not “be placed within the first 1,000
feet of a lower speed limit.” Id. r. 761—144.6(b)(10). The rules required
that ATE “fixed systems” be calibrated at least quarterly “by a local law
enforcement officer trained in the use and calibration of the system.” Id.
r. 761—144.6(4).
The IDOT rules required that each jurisdiction with an active ATE
system on primary highways prepare an annual report on the operation
of the system and submit the report to the IDOT. Id. r. 761—144.7(1)–
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(2). The local evaluation was to include (1) an analysis of the impact of
the ATE system in reducing speeds or red-light running; (2) the number
and type of collisions at the sites, including before-and-after
implementation comparisons; (3) an evaluation of the ATE system’s
impact on critical safety issues; (4) the total number of citations issued
during each calendar year; and (5) certification that the calibration
requirements of the rule had been met. Id. r. 761—144.7(1)(a)(1)–(5).
Upon receipt of the annual report, the IDOT used the information
from the report to reevaluate the continued use of the ATE system. Id.
r. 761—144.8(1). The rules provided that continued use of the ATE
system was contingent upon the effectiveness of the system, appropriate
administration by the local jurisdiction, continued compliance with ATE
rules, changes in traffic patterns, infrastructure improvements, and
implementation of other identified safety measures. Id. r. 761—144.8(1)–
(2). The IDOT “reserve[d] the right to require removal or modification of a
system in a particular location, as deemed appropriate.” Id. r. 761—
144.8(2).
We recently considered the question of whether the IDOT had
authority to promulgate its ATE rules. See City of Des Moines v. Iowa
Dep’t of Transp., 911 N.W.2d 431 (2018). We concluded that the IDOT
lacked the necessary statutory authority. Id. at 449–50. As a result, the
IDOT rules are invalid and not enforceable in this case. Nonetheless, to
the extent the studies conducted pursuant to the invalid rules relate to
safety matters, we consider the findings as part of this appeal.
2. IDOT evaluation of Cedar Rapids ATE sites on I-380. On
March 17, 2015, the IDOT issued an evaluation of Cedar Rapids’ ATE
program. In terms of general findings related to the ATE system on I-
380, the IDOT noted that there were eighty-two crashes in 2008 and
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2009 prior to ATE implementation and fifty-nine crashes in the 2012 and
2013, two years after the implementation in 2010. The IDOT report
noted that the greatest area of safety concern was an “S” curve in
downtown Cedar Rapids. The IDOT stressed that the dangers associated
with the “S” curve, however, were in entering the “S” curve, not leaving
the “S” curve. The IDOT noted, echoing its rules, that ATE systems
should only be considered in “extremely limited situations on interstate
roads because they are the safest class of any roadway in the state and
they typically carry a significant amount of non-familiar motorists.” The
IDOT reported that many safety countermeasures had been added to this
section of the roadway since a safety audit conducted in 2008 and
published in 2009.
The IDOT report proceeded to evaluate each of the four ATE sites
on I-380. With respect to the site on I-380 northbound near Diagonal
Drive, the IDOT concluded that because the current equipment was
located 859 feet beyond a reduction in speed limit from sixty to fifty-five
miles per hour, the equipment should be moved to the next truss to the
north to ensure the equipment complied with the 1000-foot requirement
of rule 761—144.6(1)(b)(10). The IDOT evaluation came to a similar
conclusion with respect to the ATE site on I-380 southbound near J
Avenue. There, the ATE cameras were located 896 feet beyond a change
of speed instead of the 1000 feet required by the IDOT rule.
Two other Cedar Rapids ATE sites, however, received different
treatment. The IDOT evaluation concluded that the ATE site at I-380
northbound near J Avenue and the site at I-380 southbound near the lst
Avenue ramp should be removed or disabled. According to the IDOT,
these two ATE systems were located either well beyond or mostly beyond
the area of concern presented by the “S” curve. Further, with respect to
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the site at I-380 northbound near J Avenue, the IDOT found that the
issuance of speeding citations in excess of 30,000 per year was
“extremely high.”
Cedar Rapids appealed the IDOT evaluation to the director. Cedar
Rapids raised issues concerning the IDOT’s legal authority to implement
its ATE rules, Cedar Rapids’ home rule authority, and the procedure the
IDOT followed regarding its ATE rules. Cedar Rapids also appears to
have asserted that the IDOT rules did not apply retroactively to ATE
systems in place prior to the rules promulgation.
E. Notices of Violations and Administrative Proceedings
Involving Plaintiffs.
1. Jeffrey Olson. Jeffrey Olson resides in Bloomington, Minnesota.
He received a notice of violation alleging that on April 3, 2015, a vehicle
owned by him violated the Cedar Rapids ATE ordinance at I-380
southbound, J Avenue exit. Olson challenged the citation.
Olson submitted a statement to Cedar Rapids detailing his reasons
for contesting the charge. Olson stated that the IDOT had found the
particular camera on the J Avenue exit noncompliant with state
regulations and that Cedar Rapids had not remedied the noncompliance.
He noted the equipment violated the regulation requiring that an ATE
system not be placed within the first 1000 feet of a lower speed limit.
Olson stated that he also could find no evidence that Cedar Rapids
quarterly calibrated the radar and camera equipment as required by
state regulations. Olson further stated that the cameras were not placed
close enough to the “S” curve, a perceived safety hazard, to promote
public safety.
In addition to questioning the enforcement of a citation that is
based upon a noncompliant ATE site, Olson stated it was
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unconstitutional to fine an owner for a moving violation without proving
that the owner was, in fact, in control of and operating the vehicle at the
time of the alleged violation. Further, Olson claimed it was
unconstitutional to charge a driver with a moving violation without the
driver being able to face and question the accuser, which is impossible
with an automated system.
The administrative hearing officer rejected Olson’s challenge. On a
form letter headed with the address of the Cedar Rapids Police
Department, Verle Allen, an “Administrative Hearing Officer,” made a
finding of “liable” and in notes, stated “[c]itation sustained.” Olson paid
the fine.
2. Dennis Behm. Dennis Behm resides in Atwater, Minnesota. He
received a notice of violation alleging that on April 11, 2015, a vehicle
owned by him operated in violation of the Cedar Rapids ATE ordinance at
I-380 northbound, J Avenue exit. Behm filed a written response with
Cedar Rapids, asserting that the IDOT had ordered the removal of the
camera at the location. The hearing officer, Chris Mayfield, on the same
form utilized in the Olson matter, found Behm “liable” and the “[c]itation
sustained.”
3. Bobby Lee Langston and David Brodsky. Bobby Lee Langston
and David Brodsky reside in Iowa City, Iowa. They received two notices
of violation alleging that on April 25, 2015, a vehicle they owned violated
the Cedar Rapids ATE ordinance. One violation allegedly occurred at
7:30 p.m., at I-380 northbound, Diagonal Drive exit, while the other
violation allegedly occurred at I-380 southbound, 1st Avenue West exit,
at 8:02 p.m. Langston and Brodsky challenged the citations. Brodsky
appeared at the administrative hearing.
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The hearing officer, Chris Mayfield, dismissed one of the violations.
With respect to the remaining violation, the hearing officer used the same
form and had the same notations as other orders in which the owner was
found to have violated the ordinance and the citation was sustained.
4. Geoff Smith. Geoff Smith resides in Aloha, Oregon. He received
two notices of violation alleging that on June 8, 2015, a vehicle owned by
him violated the Cedar Rapids ATE ordinance at I-380 northbound,
Diagonal Drive exit, and again two minutes later, at I-380 northbound, J
Avenue exit. He challenged the violations. At the administrative hearing,
hearing officer Verle Allen found Smith “liable” for one violation, but the
other violation does not appear to have been addressed. Smith paid the
fine.
5. Burton Brooks. Burton Brooks resides in Putnam, Illinois. He
received a notice of violation alleging a speeding event on June 19, 2015,
at I-380 southbound, J Avenue exit. He contested the violation. In a
written submission, he stated he was a disabled American veteran on
vacation with his wife when he drove through Cedar Rapids. He stated
that he made a habit of observing the speed limit as demonstrated by the
fact that he had not received a speeding ticket in thirty years. He
suggested that the camera malfunctioned or that, as a stranger to Cedar
Rapids, he did not have enough time to adjust to the speed limit. He
asked that the matter be dismissed and promised “to be aware next time
I vacation in your beautiful city.”
Hearing officer Chris Mayfield dismissed the citation, stating,
“[E]vidence shown could not prove the citizen’s fault.” The hearing officer
offered some friendly advice, namely “warning, please slow down.”
F. Overview of Plaintiffs’ Petition. The plaintiffs filed an action
in district court challenging the lawfulness of the Cedar Rapids ATE
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ordinance. Article I, count I of the petition sought a declaratory
judgment against the City. Article I, count I is a sprawling pleading that
includes at least eight often overlapping and interwoven constitutional
and statutory claims.
The plaintiffs first assert a statutory claim that the ATE system
with its administrative hearing approach provides an irreconcilably
different process than the small claims approach for municipal
infractions, which they assert Iowa Code section 602.6101 requires.
Section 602.6101 provides that the district court “has exclusive, general,
and original jurisdiction of all actions . . . except in cases where exclusive
or concurrent jurisdiction is conferred on some other court, tribunal, or
administrative body.” Iowa Code § 602.6101.
The plaintiffs further assert that the ATE system and its
administrative hearing is irreconcilable with Iowa Code section 364.22(6).
Section 364.22(2) states “[a] city by ordinance may provide that a
violation of an ordinance is a municipal infraction.” Id. § 364.22(2).
Iowa Code section 364.22(6) then provides that a municipal infraction is
to be tried in district court “in the same manner as a small claim,” and
“the city has the burden” to prove the violation occurred by “clear,
satisfactory, and convincing evidence.”
Next, the plaintiffs allege numerous violations of the equal
protection clause and the privileges and immunities clause of article I,
section 6 of the Iowa Constitution. The plaintiffs assert the ATE system
treats various classes of Iowa citizens and out-of-state citizens differently
in violation of the fundamental right to travel, which plaintiffs claim
triggers strict scrutiny. The plaintiffs allege that the use of the National
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Law Enforcement Telecommunications System database (Nlets), 2 where
the license plates of various vehicles such as semi-trailer trucks and
government-owned vehicles have been “suppressed,” is a violation of
equal protection. The plaintiffs allege a violation of the Iowa privileges
and immunities clause because the “compressed distances” between the
change in speed limits and the location of the cameras has a
disproportionate impact on out-of-state drivers.
The plaintiffs’ petition alleges due process violations under the
Iowa Constitution “due to the scheme’s many failures.” Among other
things, they assert that due process violations arise because the camera
placements are not sufficiently advertised to the public, the camera
placements are in areas not correlated with significant safety issues,
owners of cited vehicles lack actual notice of all reasonable and
applicable defenses, and owners of cited vehicles lack notice of the
availability of direct access to the Iowa courts with respect to alleged ATE
violations. The plaintiffs also claim the ATE system violates the Iowa
Constitution—apparently due process—because it has continued to
operate in violation of the IDOT’s administrative rules and regulations
and corresponding evaluation order and is therefore “invalid as the State
has presumptively held that there is no legitimate state interest in the
operation of these cameras.”
Based on the above theories, the plaintiffs sought relief beyond a
declaratory ruling. The plaintiffs also sought certification of classes of
vehicle owners, damages against the defendants for claims arising under
the Iowa Constitution, a refund of amounts paid to Cedar Rapids and
2Nletsis a law-enforcement database maintained by the International Justice
and Public Safety Network. Nlets, https://www.nlets.org/ (last accessed July 25,
2018).
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Gatso under an unjust enrichment theory, and temporary and
permanent injunctive relief.
G. District Court Ruling on Summary Judgment. The City
moved for summary judgment on all issues. The district court granted
the motion.
With respect to the Iowa constitutional claims based on
substantive due process, equal protection, and privileges and
immunities, the district court recognized federal caselaw held the right to
interstate travel was fundamental under the United States Constitution
and assumed a fundamental right to intrastate travel under the Iowa
Constitution. Citing federal caselaw, the court concluded the plaintiffs
failed to show the directness and substantiality required for an
infringement of the fundamental right to travel and, as a result, the
challenges to the ordinance and its implementation based on substantive
due process, equal protection, and privileges and immunities would be
evaluated using a rational basis test. See Hughes v. City of Cedar
Rapids, 112 F. Supp. 3d 817, 839 (N.D. Iowa 2015) (concluding that in
order to show the fundamental right to travel has been infringed, the
court looks to “[t]he directness and substantiality of the interference with
the fundamental right at issue” (quoting Zablocki v. Redhail, 434 U.S.
374, 387 N.12, 98 S. Ct. 673, 681 n.12 (1978))), aff’d in part, rev’d in
part, 840 F.3d 987 (8th Cir. 2016).
In applying the rational basis test, the district court emphasized
that under principles described in a trio of cases, the challenger had to
negate every reasonable basis upon which the legislation may be
sustained, see Varnum v. Brien, 763 N.W.2d 862, 879 (Iowa 2009), the
legitimate government interest in the ordinance may be sufficient if it is
“realistically conceivable,” Racing Ass’n of Cent. Iowa v. Fitzgerald (RACI
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II), 675 N.W.2d 1, 7 (Iowa 2004) (emphasis omitted) (quoting Miller v.
Boone Cty. Hosp., 394 N.W.2d 776, 779 (Iowa 1986)), and a significant
degree of underinclusiveness and/or overinclusiveness is tolerated,
Vance v. Bradley, 440 U.S. 93, 108–09, 99 S. Ct. 939, 948 (1979). Citing
King v. State, 818 N.W.2d 1, 32 (Iowa 2012), the court noted that
typically the rational basis test for equal protection is also applied with
respect to a substantive due process analysis.
Applying these principles, the district court rejected the
substantive due process, equal protection, and privileges and immunities
claims. Relying on Hughes, the court concluded that the City could
rationally conclude that the system would reduce the number of people
violating traffic laws while simultaneously raising funds for the City. See
112 F. Supp. 3d at 840. The court further noted that Cedar Rapids
could rationally conclude that a system that only photographs rear
license plates is less expensive and that capturing fewer people who
violate the ordinance with a less expensive system is more cost-effective.
The district court concluded that the “minor degree of
underinclusiveness” caused by the resulting exemption of semi-trailer
trucks and government-owned vehicles from the threat of ATE citation
was insufficient to render the ordinance unconstitutional under due
process, equal protection, and privileges and immunities theories.
The district court recognized that the IDOT had determined that
the equipment placed at the I-380 locations was not necessary for public
safety. Even so, the court reasoned, the City has a legitimate interest in
enforcing the speed limit within the City limits and the ATE system is
rationally related to that interest. In any event, the court stated that the
IDOT is not the final arbiter of the constitutional legitimacy of the
ordinance.
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The district court rejected the plaintiff’s procedural due process
claim along the same lines as the federal district court in Hughes, 112 F.
Supp. 3d 817. Applying the balancing test of Mathews v. Eldridge, 424
U.S. 319, 335, 96 S. Ct. 893, 903 (1976), the court observed that a civil
fine of between $25 and $750 was not a particularly weighty property
interest. The court noted that the risk of erroneous deprivation was
slight given the two options in the ordinance to contest the fine. Further,
the court concluded that requiring the government to allow citations to
be contested only through the court system would impose a significant
additional workload on already burdened state courts.
The district court also rejected the plaintiffs’ unlawful-delegation-
of-power claim. According to the court, Gatso’s initial screening process
involved little discretion and the plaintiffs did not provide facts indicating
otherwise. The court further noted that it did not find admissible
evidence showing the acts of running license plate numbers to identify
registered vehicle owners, calibrating the ATE equipment, mailing out
notices, or maintaining Cedar Rapids’ ATE hotline or webpage involved
significant discretion on Gatso’s part. Further, the court noted that
Cedar Rapids police officers were responsible for the ultimate decision
regarding who was issued ATE citations.
The district court next addressed the plaintiffs’ argument that
provisions of Iowa law preempted the administrative remedies in the
ordinance. The court rejected the claim, emphasizing that the ATE
ordinance is not preempted by Iowa Code section 364.22(4), (6) and
section 602.6101 because the ordinance simply provides plaintiffs with
an additional forum to challenge the ATE citations. The court, however,
did not address the claim that the IDOT’s regulations preempted the
City’s actions.
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Finally, the district court addressed the plaintiffs’ unjust
enrichment claim. The court concluded that because the ordinance was
constitutional, there was no basis for an unjust enrichment claim.
Plaintiffs appealed. We transferred the case to the court of
appeals.
H. Court of Appeals Opinion. The court of appeals affirmed,
generally applying reasoning similar to the district court. With respect to
plaintiffs’ claim that Iowa statutes preempted the ordinance, however,
the court of appeals engaged in additional analysis. The court noted the
argument was based upon implied rather than express preemption. The
court recognized that a municipality cannot enact an ordinance that
expressly or impliedly conflicts with state law. See City of Sioux City v.
Jacobsma, 862 N.W.2d 335, 353 (Iowa 2015). The court, however, cited
federal authority for the proposition that the ATE ordinance was not
impliedly preempted. See Brooks v. City of Des Moines, 844 F.3d 978,
980 (8th Cir. 2016); Hughes, 112 F. Supp. 3d at 849. Further, the court
of appeals also cited City of Davenport v. Seymour, 755 N.W.2d 533, 542
(Iowa 2008), and Goodell v. Humboldt County, 575 N.W.2d 486, 500 (Iowa
1998), for the proposition that an exercise of city power is not
inconsistent with state law unless it is irreconcilable with state law.
Relying on these principles, the court of appeals found no implied
preemption.
II. Standard of Review.
A motion for summary judgment is appropriately granted when
“there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” Iowa R. Civ. P.
1.981(3). “We review the legal issues necessary for resolution of the
constitutional claims presented within the context of the summary
20
judgment proceeding de novo.” Varnum, 763 N.W.2d at 874; Kistler v.
City of Perry, 719 N.W.2d 804, 805 (Iowa 2006). We review all other legal
issues for correction of errors at law. Mueller v. Wellmark, Inc., 818
N.W.2d 244, 253 (Iowa 2012).
The burden of showing undisputed facts entitled it to summary
judgment rests on the moving party. See, e.g., Swainston v. Am. Family
Mut. Ins., 774 N.W.2d 478, 481 (Iowa 2009) (stating “the moving party
must affirmatively establish the existence of undisputed facts entitling
that party to a particular result” (quoting Interstate Power Co. v. Ins. Co.
of N. Am., 603 N.W.2d 751, 756 (Iowa 1999)); K & W Elec., Inc. v. State,
712 N.W.2d 107, 112 (Iowa 2006) (same); Red Giant Oil Co. v. Lawlor,
528 N.W.2d 524, 528 (Iowa 1995) (“The burden is on the moving party to
show the absence of a material fact issue . . . .”). This burden remains
with the moving party at all times. Interstate Power, 603 N.W.2d at 756.
A moving party cannot shift the burden to the other party through a
conclusory motion for summary judgment not supported by undisputed
facts. See id.; Midwest Mgmt. Corp. v. Stephens, 291 N.W.2d 896, 900
(Iowa 1980) (noting the other party need not file a resistance to a motion
for summary judgment to prevail if the moving party has not met its
burden to show the absence of a genuine issue); Am. Tel. & Tel. Co. v.
Dubuque Commc’ns Corp., 231 N.W.2d 12, 15 (Iowa 1975) (“A summary
judgment is neither a method of avoiding the necessity of proving one’s
case nor a clever procedural gambit whereby a claimant can shift to his
adversary his burden of proof on one or more issues.” (quoting United
States v. Dibble, 429 F.2d 598, 601 (9th Cir. 1970))).
III. Overview of Controversy Surrounding ATE Systems.
In recent decades, many cities across the country have
implemented ATE systems. ATE systems have proven quite
21
controversial. Advocates say that ATE systems are efficient and promote
public safety, while opponents view ATE systems as simply a money grab
by cash-strapped municipalities, assisted by private vendors seeking to
promote profits and not public safety. Academic commentators have
joined the fray with gusto. See, e.g., Andrew Askland, Photo Radar
Enforcement: A Brief Stall on a Slippery Slope?, 19 B.U. J. Sci. & Tech. L.
1, 4–7 (2013) [hereinafter Askland]; Jennifer M. Lancaster, Case Note,
You’ve Got Mail: Analyzing the Constitutionality of Speeding Cameras in
City of Moline Acres v. Brennan, 470 S.W.3d 367 (Mo. 2015), 41 S. Ill. U.
L.J. 485, 502 (2017); Paul McNaughton, Comment, Photo Enforcement
Programs: Are They Permissible Under the United States Constitution?, 43
J. Marshall L. Rev. 463, 489 (2010); Kevin P. Shannon, Note, Speeding
Towards Disaster: How Cleveland’s Traffic Cameras Violate the Ohio
Constitution, 55 Clev. St. L. Rev. 607, 635–36 (2007); Thomas M. Stanek,
Note, Photo Radar in Arizona: Is it Constitutional?, 30 Ariz. St. L.J. 1209,
1243 (1998).
Plaintiffs have attacked ATE systems in beehive litigation with
statutory and constitutional theories. Plaintiffs have asserted that
substantive and notice provisions of ATE systems are preempted by state
law or that the ATE systems otherwise violate provisions of state law.
See, e.g., Leonte v. ACS State & Local Sols., Inc., 19 Cal. Rptr. 3d 879,
883–84 (Ct. App. 2004); State v. Kuhlman, 729 N.W.2d 577, 579 (Minn.
2007); Mendenhall v. City of Akron, 881 N.E.2d 255, 260 (Ohio 2008); cf.
City of Commerce City v. State, 40 P.3d 1273, 1277–78 (Colo. 2002) (en
banc). Plaintiffs have claimed that ATE systems amount to an unlawful
tax under state law. See Ballard v. City of Creve Coeur, 419 S.W.3d 109,
122 (Mo. Ct. App. 2013) (successfully overturning a motion to dismiss on
the issue). Plaintiffs have attacked ATE systems for failure to comply
22
with notice and remedial provisions of state law. See, e.g., Tonner v.
Paradise Valley Magistrate’s Ct., 831 P.2d 448, 450 (Ariz. Ct. App. 1992)
(holding notice of ticket must meet statutory requirements for service);
City of Moline Acres v. Brennan, 470 S.W.3d 367, 382 (Mo. 2015) (en
banc) (finding notice demanding payment an unlawful “shortcut around
the judicial system”); City of Springfield v. Belt, 307 S.W.3d 649, 653 (Mo.
2010) (en banc) (holding proceeding overseen by “hearing examiner”
violates statutory requirement that municipal ordinance violations be
heard before divisions of circuit court); Walker v. City of Toledo, 39
N.E.3d 474, 480 (Ohio 2014) (holding municipal courts do not have
exclusive authority over traffic-ordinance violations). Plaintiffs have
raised a wide variety of constitutional attacks, including substantive and
procedural due process, equal protection, and delegation of powers. See,
e.g., Hughes, 840 F.3d at 996; Bevis v. City of New Orleans, 686 F.3d
277, 280–81 (5th Cir. 2012); Idris v. City of Chicago, 552 F.3d 564, 565
(7th Cir. 2009); Falkner v. City of Chicago, 150 F. Supp. 3d 973, 976
(N.D. Ill. 2015); Leder v. Am. Traffic Sols., Inc., 81 F. Supp. 3d 211, 223
(E.D.N.Y. 2015); Gardner v. City of Cleveland, 656 F. Supp. 2d 751, 758,
760 (N.D. Ohio 2009); Sevin v. Parish of Jefferson, 621 F. Supp. 2d 372,
384–85 (E.D. La. 2009); Shavitz v. City of High Point, 270 F. Supp. 2d
702, 707 (M.D.N.C. 2003); Agomo v. Fenty, 916 A.2d 181, 183 (D.C.
2007); City of Hollywood v. Arem, 154 So. 3d 359, 365 (Fla. Dist. Ct. App.
2014), disapproved of by Jimenez v. State (Jimenez II), 246 So. 3d 219
(Fla. 2018); Fischetti v. Village of Schaumburg, 967 N.E.2d 950, 959 (Ill.
App. Ct. 2012).
The controversy over ATE systems has drawn legislative as well as
judicial attention. Some states, like Iowa, have declined to enact specific
statewide regulation of ATE systems. See, e.g., Pepper v. St. Charles
23
County, 517 S.W.3d 590, 598 (Mo. Ct. App. 2017); Walker, 39 N.E.3d at
479. See generally Jeffrey A. Parness, Beyond Red Light Enforcement
Against the Guilty but Innocent: Local Regulations of Secondary Culprits,
47 Willamette L. Rev. 259, 265 (2011). Other states have taken the
opposite approach and banned them. See Mont. Code Ann. § 61-8-206
(West, Westlaw current through 2017 Sess.). A number of other states
have adopted a regulatory approach that permits ATE systems under
certain circumstances. In states that have adopted a regulatory
approach, the statutes deal with a wide variety of ATE issues. The
statutes address issues such as the permissible location of ATE systems,
their manner of operation, the notices required to support an ATE
system, and the manner in which vendors who participate in ATE
systems may be compensated. See, e.g., Ark. Code Ann. § 27-52-
110(c)(1) (West, Westlaw current through 2018 Fiscal Sess. & 2d
Extraordinary Sess.) (limiting placement to school zones and railroad
crossings); Colo. Rev. Stat. Ann. § 42-4-110.5 (West, Westlaw current
through 2018 2d Reg. Sess.) (requiring sign placement in conspicuous
places not fewer than 200 feet and no more than 500 feet before
automated vehicle identification system); Fla. Stat. Ann. § 316.0083
(West, Westlaw current through 2018 2d Reg. Sess.) (authorizing notice
by first class mail and prohibiting fees based on tickets issued), held
unconstitutional as applied in City of Fort Lauderdale v. Dhar, 185 So. 3d
1232, 1236 (Fla. 2016); N.C. Gen. Stat. Ann. § 160A-300.1 (authorizing
first-class notice).
We have had two occasions to consider the validity of ATE systems.
In Seymour, we considered whether ATE systems were impliedly
preempted by provisions of Iowa law related to traffic regulation under
24
Iowa Code chapter 321. 755 N.W.2d at 535. We concluded that they
were not. Id.
In Jacobsma, we considered a number of questions related to an
ATE system in Sioux City. 862 N.W.2d at 337. We upheld an ATE
system that established a rebuttable presumption that the vehicle’s
owner was the driver from an Iowa and federal due process attack. Id. at
339, 346. Citing RACI II, we rejected a substantive due process attack,
noting that the plaintiff had not developed a record suggesting that the
city’s interest was “insubstantial or empirically unsustainable.”
Jacobsma, 862 N.W.2d at 347–48; see RACI II, 675 N.W.2d at 74. We
also rejected an attack on the Sioux City ATE system under the
inalienable rights clause of article I, section 1 of the Iowa Constitution.
Jacobsma, 862 N.W.2d at 352–53.
IV. Substantive Iowa Constitutional Challenges: Substantive
Due Process, Equal Protection, and Privileges and Immunities.
A. Introduction. In this case, plaintiffs launch their equal
protection, privileges and immunities, and substantive due process
claims under the Iowa Constitution. They seek monetary, declaratory,
and injunctive relief on these theories. Plaintiffs do not make parallel
claims under the United States Constitution.
As presented by the plaintiffs, the three state constitutional claims
of equal protection, privileges and immunities, and substantive due
process are closely interwoven. Plaintiffs, as well as the defendants, do
not utilize a different framework for analysis of equal protection and
privileges and immunities. There is Iowa authority for this proposition.
See Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 73 (Iowa 2001). In
light of the positions of the parties, we have no occasion to consider
whether these claims should be pulled apart.
25
Further, while their substantive due process claims attack the ATE
system as a whole and do not involve classifications, the plaintiffs employ
a tiered framework for substantive due process that is indistinguishable
from their approach to the equal protection and privileges and
immunities claims. As a result, the analysis of substantive due process
as presented by the parties has substantial overlap with the equal
protection and privileges and immunities claims.
The tiered approach to these constitutional provisions is a familiar
one that has been employed by the United States Supreme Court for
some time. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
440–41, 105 S. Ct. 3249, 3254–55 (1985). The tiered approach of the
United States Supreme Court has its critics. For instance, critics have
noted the variability in the application of the rational basis test, where in
some cases it is extraordinary deferential, in other cases it is notably
more demanding. See, e.g., Jacobsma, 862 N.W.2d at 347 n.3; County of
Portage v. Steinpreis, 312 N.W.2d 731, 741 n.4 (Wis. 1981) (Abrahamson,
J., dissenting); Kenji Yoshino, The New Equal Protection, 124 Harv. L.
Rev. 747, 759 (2011) [hereinafter Yoshino] (noting that rational basis
review takes two forms, ordinary rational basis review and rational basis
review “with bite”). It has been suggested that the United States
Supreme Court abandon, or at least refine, its tiered approach. Jeffrey
M. Shaman, Equality and Liberty in the Golden Age of State Constitutional
Law 13 (2008) (noting “multi-tier system has proven to be unduly rigid”).
There is, of course, no requirement that states recognize as
“fundamental” only those interests so recognized by the United States
Supreme Court in its constitutional analysis. While the United States
Supreme Court has rejected the right to education as a “fundamental
interest,” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37, 93
26
S. Ct. 1278, 1299 (1973), other states (not including Iowa), have declined
to follow the Supreme Court’s lead, see, e.g., Serrano v. Priest, 557 P.2d
929 (Cal. 1976) (en banc) (reaffirming under state constitution “education
is a fundamental interest”); Idaho Sch. for Equal Educ. Opportunity v.
Evans, 850 P.2d 724, 734–35 (Idaho 1993) (applying intermediate
standard of review to equal protection challenge under state
constitution); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 392
(Tex.1989) (finding constitutional mandate under state constitution to
provide for education); see also Lake View Sch. Dist. No. 25 v. Huckabee,
91 S.W.3d 472, 479 (Ark. 2002) (“Nevertheless, because we conclude that
the clear language of Article 14 imposes upon the State an absolute
constitutional duty to educate our children, we conclude that it is
unnecessary to reach the issue of whether a fundamental right is also
implied.”).
A number of states have adopted different tests for substantive due
process and equal protection claims under their state constitutions when
fundamental interests are not implicated. For instance, in South
Dakota, the rational basis test utilized in substantive due process
requires “a real and substantial relation” between a statute and the
objects sought to be obtained. Katz v. S.D. Bd. of Med. & Osteopathic
Exam’rs, 432 N.W.2d 274, 278 & n.6 (S.D. 1988). The New Jersey
Supreme Court has rejected the federal approach in favor of a balancing
test. See Planned Parenthood of Cen. N.J. v. Farmer, 762 A.2d 620, 633–
38 (N.J. 2000). The Minnesota Supreme Court has been unwilling to
hypothesize a rational basis not asserted in support of a statute, has
required that statutory distinctions “must be genuine and substantial,”
and has stated that there must be “a reasonable connection between the
actual . . . effect of the challenged classification and the statutory goals.”
27
State v. Russell, 477 N.W.2d 886, 888–89 (Minn. 1991) (first quoting
Wegan v. Village of Lexington, 309 N.W.2d 273, 280 (Minn. 1981)). The
Supreme Courts of Alaska and Vermont have adopted a sliding-scale-
type approach to equal protection that can lead to a more stringent
review when fundamental interests are not involved. See Alaska Pac.
Assurance Co. v. Brown, 687 P.2d 264, 269 (Alaska 1984); Baker v. State,
744 A.2d 864, 873 (Vt. 1999). A body of the academic literature has long
recognized and often advocated that states may develop their own equal
protection and substantive due process doctrine. See, e.g., Randal S.
Jeffrey, Equal Protection in State Courts: The New Economic Equality
Rights, 17 Law & Ineq. 239, 356–57 (1999); Jeffrey M. Shaman, The
Evolution of Equality in State Constitutional Law, 34 Rutgers L.J. 1013,
1121–23 (2003); Robert F. Williams, Equality Guarantees in State
Constitutional Law, 63 Tex. L. Rev. 1195, 1222–24 (1985).
In this case, however, the plaintiffs cite and extensively rely upon 3
RACI II for the proposition that “the claimed state interest must be
3In many equal protection and substantive due process cases, litigants simply
do not argue for a different approach under the Iowa Constitution than the prevailing
approach under the Federal Constitution. See, e.g., In re Det. of Hennings, 744 N.W.2d
333, 339–40 (Iowa 2008) (delaying any consideration of independent state constitutional
standard in light of minimal briefing); State v. Simmons, 714 N.W.2d 264, 271 (Iowa
2006) (specifically recognizing that independent state constitutional claim was not
briefed); Sanchez v. State, 692 N.W.2d 812, 819 (Iowa 2005) (noting that neither party
argued for a different standard); Claude v. Guar. Nat’l Ins., 679 N.W.2d 659, 664 n.3
(Iowa 2004) (making specific reference to lack of briefing on independent state
constitutional approach). In these cases, we do not “adopt” the federal interpretation
under the Iowa Constitution, but simply decide the issue as framed by the parties.
Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 614 (Iowa 2017) (Appel, J.,
concurring in part and dissenting in part) (“When a legal principle is embraced by the
parties by agreement and is not contested on appeal, the court’s subsequent recitation
of the legal principle is not a holding in the case that was a product of an adversary
proceeding.”); see also Freeman v. Grain Processing Corp., 848 N.W.2d 58, 93 (Iowa
2014) (“[W]here a party does not suggest a different standard under Iowa law, we adopt
for the purposes of the case the federal standard . . . .” (Emphasis added.)).
28
‘realistically conceivable’ ” and have a “basis in fact.” 4 675 N.W.2d at 7–8
(emphasis omitted) (first quoting Miller, 394 N.W.2d at 779). In Racing
Ass’n of Central Iowa v. Fitzgerald (RACI I), we originally held that the
legislature’s classification in a taxation statute between land-based
casinos and riverboats violated equal protection under the Fourteenth
Amendment of the United States Constitution. 648 N.W.2d 555, 558,
562 (Iowa 2002). The United States Supreme Court reversed. Fitzgerald
v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, 110, 123 S. Ct. 2156, 2161
(2003). On remand, we held that, notwithstanding the unanimous
decision of the United States Supreme Court under the Equal Protection
Clause of the Fourteenth Amendment, the classification was nonetheless
invalid under article I, section 6 of the Iowa Constitution. RACI II, 675
N.W.2d at 3. Clearly, our approach to equal protection in RACI II had
more teeth than that employed by the United States Supreme Court.
An important question in equal protection and due process
settings is the role of fact-finding in determining the validity of the
classification or legislation. RACI II emphasizes that the legitimate
purpose of the classification must be “realistically conceivable” and have
“a basis in fact.” Id. at 7–8 (emphasis omitted) (first quoting Miller, 394
N.W.2d at 779). On the other hand, we have stated that government “is
not required or expected to produce evidence to justify its legislative
action.” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444,
458 (Iowa 2013) (quoting Ames Rental Prop. Ass’n v. City of Ames, 736
N.W.2d 255, 259 (Iowa 2007)).
also cite Jacobsma for the proposition that the rational basis test may
4Plaintiffs
be applied more stringently or with “greater bite” under Iowa’s due process clause than
under federal caselaw. 862 N.W.2d at 347 n.3
29
We think RACI II and Horsfield may be easily reconciled. While the
state or municipality is not expected or required to produce evidence to
justify its action, a party attacking the classification may do so in an
effort to show that the claimed legitimate interest is either not
“realistically conceivable” or does not have “a basis in fact.” RACI II, 675
N.W.2d at 7–8 (emphasis omitted) (first quoting Miller, 394 N.W.2d at
779). In other words, once the state articulates a legitimate
governmental interest that appears plausible on the face of the statute,
the burden of coming forward with evidence to attack the asserted
justification shifts to the challenger.
Our cases support the potential role of fact-finding in the arsenal
of a party attacking legislation under substantive due process, equal
protection, or privileges and immunities. Decades ago, we repeatedly
noted that changes in circumstances can allow us to find that a statute
is no longer rationally related to its original government purpose. Miller,
394 N.W.2d at 779 (rejecting claimed purposes “[i]n light of present day
conditions”); Bierkamp v. Rogers, 293 N.W.2d 577, 581 (Iowa 1980)
(noting “the passage of time may call for a less deferential standard of
review as the experimental or trial nature of legislation is less evident”).
More recently, in State v. Willard, we noted that the challenger had not
“developed an evidentiary basis for this court to conclude the statute fails
to promote a legitimate government interest.” 756 N.W.2d 207, 213–14
(Iowa 2008). In Ames Rental Property, we noted that a legislative
judgment “is presumed to be supported by facts known to the
[legislature] unless facts judicially known or proved preclude that
possibility.” 736 N.W.2d at 259–60.
Our approach in these cases is consistent with equal protection
and due process authorities in other states. A number of states require
30
robust fact-finding in order to evaluate state constitutional challenges to
residency requirements, gay adoptions, and stiff cocaine penalties. See,
e.g., Bruno v. Civil Serv. Comm’n, 440 A.2d 155, 157 (Conn. 1981) (noting
deficiency in record involving challenge to residential duration
requirement); Cox v. Fla. Dep’t of Health & Rehab. Servs., 656 So. 2d 902,
903 (Fla. 1995) (remanding for “a factual completion of the record” on
challenge to state ban on gay adoptions); State v. Frazier, 649 N.W.2d
828, 833–35 (Minn. 2002) (requiring a factual record to evaluate the
reliability and validity of both data and data analysis presented by the
parties).
There is also support for the position in the academic literature.
As noted by one commentator, adjudicative facts
must focus on both the importance of policy and its
motivation . . . .
. . . Adjudicative facts for a particular program would
be part of the calculus and would be useful in determining
the sincerity of the government objective and smoking out
any illicit motives.
Angelo N. Ancheta, Science and Constitutional Fact Finding in Equal
Protection Analysis, 69 Ohio State L.J. 1115, 1166, 1169 (2008).
While there is a role for factual development in Iowa equal
protection, privileges and immunities, and substantive due process
cases, the role of fact-finding in a rational basis review is limited. The
fact-finding is not a robust review where the court substitutes its policy
judgments for that of the legislature. Instead, the fact-finding is limited
to considering whether the asserted purposes of the statute, in light of
the record developed, are realistically conceivable and have a basis in
fact, and whether the means chosen are rationally related to that
legitimate purpose. See RACI II, 675 N.W.2d at 7–8. In the vernacular of
31
RACI II, the rational basis review of classifications is not “toothless” in
the face of strong evidence undermining the legislative means and
purposes, but it is deferential to legislative judgments. Id. at 9. We give
the legislature substantial leeway, particularly in matters involving
highway regulation and safety, but there are judicial guardrails on
legislative action even when applying a rational basis review. Compare
Veach v. Iowa Dep’t of Transp., 374 N.W.2d 248, 249, 250 (Iowa 1985)
(concluding under rational basis test that “State’s interest in public
safety is substantially served by treating people who refuse chemical
testing differently from people who submit to testing”), with Bierkamp,
293 N.W.2d at 582 (concluding no rational relationship existed between
the classifications drawn in the guest statute and its conceivable
purposes of promoting hospitality among automobile drivers and
preventing collusive lawsuits and therefore statute violative of equal
protection under the Iowa Constitution).
B. Infringement of Fundamental Right to Travel by ATE
System.
1. Introduction. An important threshold question for equal
protection, privileges and immunities, and substantive due process
analyses is whether the ATE system in this case infringes on a
fundamental right to intrastate travel. The parties appear to concede
that if this is so, the ATE system and its classifications would be subject
to strict scrutiny. On the other hand, if a fundamental right is not
implicated, the ATE system is subject to a less intrusive rational basis
test.
2. Positions of the parties. Plaintiffs assert that the ATE system
infringes upon the fundamental right to travel under the Iowa
Constitution. Plaintiffs note that the fundamental right to interstate
32
travel is well established. See Formaro v. Polk County, 773 N.W.2d 834,
839 (Iowa 2009). Plaintiffs assert that the cameras on I-380 do not
provide sufficient notice to strangers to Cedar Rapids and that out-of-
state travelers are not treated as welcome visitors. Plaintiffs assert that
out-of-state travelers have a fundamental right not to be subject to a
speed trap in Cedar Rapids, a speed trap whose burdens fall
disproportionately and irrationally, according to plaintiffs, on out-of-state
citizens.
Further, according to the plaintiffs, there is also a fundamental
right to intrastate travel. Plaintiffs recognize that while Iowa has not yet
expressly adopted a fundamental right to intrastate travel, they urge us
to do so. Plaintiffs claim that a right to travel may be found in the Iowa
Constitution in the privileges and immunities clause of article I, section
6. Plaintiffs note that a number of states in the Midwest and West have
embraced a constitutional right to intrastate travel. See, e.g., Treacy v.
Municipality of Anchorage, 91 P.3d 252, 264–65 (Alaska 2004); State v.
Cuypers, 559 N.W.2d 435, 437 (Minn. Ct. App. 1997); In re Marriage of
Guffin, 209 P.3d 225, 227–28 (Mont. 2009); State v. Burnett, 755 N.E.2d
857, 865 (Ohio 2001); Brandmiller v. Arreola, 544 N.W.2d 894, 899 (Wis.
1996). The plaintiffs’ citations include descriptions of the right as
including the right “to move from place to place, to walk in the fields in
the country or on the streets of a city, [and] to stand under open sky.”
State v. Shigematsu, 483 P.2d 997, 1001 (Haw. 1971).
Cedar Rapids concedes, as it must, the existence of a fundamental
right to interstate travel. Cedar Rapids, however, claims that even if the
right exists, it is not infringed by the ATE system. Cedar Rapids notes
that right-to-travel cases generally embrace three components—(1) the
right to leave and enter a state, (2) “the right to be treated as a welcome
33
visitor rather than an unfriendly alien,” and (3) the right to be treated
like other citizens after becoming a permanent resident. Formaro, 773
N.W.2d at 839 (quoting Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct.
1518, 1525 (1999)).
Cedar Rapids contends none of these components are infringed on
the record developed in this case. Cedar Rapids suggests ordinary traffic
regulations do not infringe the right to travel. See United States v. Hare,
308 F. Supp. 2d 955, 1001 (D. Neb. 2004). Further, Cedar Rapids points
out that not everything that deters travel burdens the fundamental right
to travel. See Matsuo v. United States, 586 F.3d 1180, 1183 (9th Cir.
2009). Cedar Rapids argues that the notice posted on I-380 of the
presence of traffic cameras is exactly the same for out-of-state, in-state,
and local residents. It further does not serve to make nonresidents
unwelcome visitors and does not discriminate against nonresidents.
With respect to the right to intrastate travel, Cedar Rapids points
out that we declined to recognize such a right in City of Panora v.
Simmons, 445 N.W.2d 363, 367, 369 (Iowa 1989). In any event, Cedar
Rapids contends that the ATE system no more infringed the right to
intrastate travel than the right to interstate travel.
3. Discussion. On the question of whether the ATE ordinance
infringed a fundamental right to interstate or intrastate travel, we agree
with Cedar Rapids. Like the district court, we assume that rights to
interstate and intrastate travel are fundamental and, if infringed, may
give rise to strict scrutiny under equal protection and substantive due
process.
But we do not find the ATE ordinance in this case infringed any
right to travel. The term “infringement” in this context is a term of art
with at least some ambiguity, but it clearly does not mean anything that
34
impacts travel. See Matsuo, 586 F.3d at 1184. Yet, if traffic regulations
infringed the right to travel, there could be no traffic regulations. No one,
however, can seriously question the power of the state or a municipality
to impose speed limits on public highways. See Moore v. Supreme Ct.,
447 F. Supp. 527, 531 (D.S.C. 1977) (noting that while a sales tax or
speed limit may influence decisions on whether to travel to a state, such
statutes do not directly impinge on the fundamental right). Speed limits
do not have the function or purpose of penalizing or discouraging travel
itself and ordinarily do not impose substantial burdens on the traveling
public. See Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991)
(emphasizing minor restrictions on travel do not amount to denial of a
fundamental right). It is not surprising that courts that have considered
the validity of ATE systems have not found the right to travel infringed by
their enforcement. See Hughes, 840 F.3d at 995.
For the above reasons, we conclude that there is no basis to
examine the constitutional validity of the ATE system using strict
scrutiny arising from alleged infringement of the right to intrastate or
interstate travel. Instead, we apply the RACI II rational basis test “with
bite.” See Yoshino, 124 Harv. L. Rev. at 759.
C. Substantive Due Process.
1. Introduction. We now turn to the question of whether the ATE
system violates substantive due process as the plaintiffs’ claim. Under
substantive due process, some government deprivations of life, liberty, or
property may be unconstitutional regardless of the adequacy of the
procedures deployed. Pearson v. City of Grand Blanc, 961 F.2d 1211,
1216 (6th Cir. 1992).
35
Like its cousin equal protection, substantive due process is most
robust when fundamental interests are involved. 5 State v. Klawonn, 609
N.W.2d 515, 519 (Iowa 2000). Here, however, we have determined that
there is no fundamental interest in the right to travel infringed by the
ordinance. As a result, Cedar Rapids is not required to show a
compelling interest or that the means chosen to promote that interest are
narrowly tailored to achieve its objectives.
There are, however, two strands of traditional substantive due
process that have potential application in this case. First, in evaluating
government legislation that involves a life, liberty, or property interest,
there must be a reasonable fit between the government purpose and the
means chosen to advance that purpose. Reno v. Flores, 507 U.S. 292,
305, 113 S. Ct. 1439, 1448–49 (1993). Evaluating this fit ordinarily
involves application of the rational basis test. Gardner, 656 F. Supp. 2d
at 761.
Second, a violation of substantive due process may arise from
government action that “shocks the conscience.” Zaber v. City of
Dubuque, 89 N.W.2d 634, 640 (Iowa 2010) (quoting Atwood v. Vilsack,
725 N.W.2d 641, 647 (Iowa 2006)). The classic case applying the shocks-
the-conscience component of substantive due process is Rochin v.
California, where government authorities brutally pumped the stomach of
a resisting suspect for evidence of a crime during a warrantless search.
342 U.S. 165, 166, 172, 72 S. Ct. 205, 206, 209 (1952).
5The main difference between an equal protection and a substantive due process
argument attacking legislation is that the equal protection argument requires that the
legislation create classes of persons, while the due process claim may be brought where
no classifications are involved or the classification is a class of one. See L.R. McInnis,
The Municipal Management of Emergencies: The Houston Plan, 4 Tex. F. on C.L. & C.R.
139, 152 (1999).
36
2. Positions of the parties. The plaintiffs assert that there is no
reasonable fit between Cedar Rapids’ purpose for establishing its ATE
system—public safety—and the means chose to advance it. Plaintiffs rely
heavily on the IDOT evaluation, which ordered the City to remove two of
the camera installations and move the cameras in two other locations.
According to plaintiffs, the IDOT evaluation ordering cameras be removed
from two locations shows that these cameras do not promote public
safety. Plaintiffs further claim that crash data demonstrate there is no
benefit to the cameras on I-380. Further, plaintiffs claim the fact that
citations are increasing, rather than decreasing, demonstrates that the
system is not advancing Cedar Rapids’ safety goals. Plaintiffs suggest
the lack of support for the safety rationale demonstrates that the real
goal of the City’s ATE program is raising revenue.
In support of their attack on the relationship between the ATE
system and public safety, plaintiffs cite an affidavit filed by their expert,
Joseph Schofer. Schofer generally stated that before Cedar Rapids
placed its ATE system at various locations, it should have conducted
comprehensive vehicular speed and crash data analysis to determine
proper placement. Without such data, it is not possible to know,
according to Schofer, whether a particular location is dangerous enough
to merit the placement of ATE equipment. Based on the facts known to
him, Schofer stated the ATE locations in Cedar Rapids did not appear
dangerous enough to warrant the use of ATE technologies. Given the
relatively high number of violators, if those numbers are not decreasing,
Schofer opined it would “seem that the principal achievement of the
program is generating revenues . . . rather than one of enhancing the
public safety goal of reducing traffic speed.”
37
The plaintiffs also incorporate a lack-of-notice theory in their
substantive due process attack. The plaintiffs claim the IDOT’s order
that cameras be moved in two locations based on their violation of a rule
that cameras not be located within 1000 feet of a posted speed change
shows that the placement of the equipment provided drivers with
insufficient notice of the operation of the ATE system.
The plaintiffs launch a general arbitrariness attack on the ATE
system. The plaintiffs assert that the ATE system is arbitrary and
irrational because it burdens privately owned vehicles but not
government-owned vehicles or semi-trailer trucks. Plaintiffs further
suggest that the radar equipment is inadequately calibrated and has an
admitted error rate of two percent, thereby producing arbitrary results.
Finally, the plaintiffs take great umbrage with the ATE system,
declaring that it offends notions of fairness and human dignity. See
Blumenthal Inv. Trs. v. City of West Des Moines, 636 N.W.2d 255, 265
(Iowa 2001). They claim that Cedar Rapids’ continued violation of state
law, in the form of the IDOT order, cannot be considered in good faith
and is therefore a violation of substantive due process. This argument
appears to be an expansive version of a shocks-the-conscience test.
Cedar Rapids responds that under the rational basis test of
substantive due process, it is given considerable leeway. Cedar Rapids
emphasizes there is no requirement that legislation employs the best
means to achieve a legitimate state interest. See Hensler v. City of
Davenport, 790 N.W.2d 569, 584 (Iowa 2010).
With respect to the IDOT order, Cedar Rapids notes the IDOT did
not engage in an evidentiary proceeding and did not apply a substantive
due process, rational basis test to the ATE system. Further, Cedar
Rapids argues applying the substantive due process, rational basis test
38
is a task for a court, not a government agency. Cedar Rapids emphasizes
that a number of courts considering the question have determined that
ATE systems do not violate substantive due process. See Idris, 552 F.3d
at 566; Hughes, 112 F. Supp. 3d at 840; Smith v. City of St. Louis, 409
S.W.3d 404, 425–26 (Mo. Ct. App. 2013).
Cedar Rapids recognizes that substantive due process prevents the
government from “engaging in conduct that ‘shocks the conscience,’ or
interferes with rights ‘implicit in the concept of ordered liberty.’ ” Zaber,
789 N.W.2d at 640 (quoting Atwood, 725 N.W.2d at 647). The City notes
that the ATE system simply enforces traffic laws with an opportunity to
contest a citation using the administrative process, the courts, or both.
The ATE system certainly does not shock the conscience. See Hughes,
112 F. Supp. 3d at 840 (Cedar Rapids ATE system “does not remotely
approach the level of shocking the conscience”).
3. Discussion. We begin our discussion first by considering the
question of whether the plaintiff has met its burden of showing that the
Cedar Rapids ATE system is not a reasonable fit to achieve its legitimate
governmental purpose of public safety. An important part of plaintiffs’
argument is the claim that the IDOT order sufficiently undermines Cedar
Rapids’ safety purpose so as to establish a substantive due process
violation.
Our decision invalidating the IDOT rules substantially undermines
the plaintiffs’ claims. See City of Des Moines, 911 N.W.2d at 434. In any
event, the IDOT rules related to ATE systems were highly restrictive. The
rules did not establish a floor for determining whether an ATE system
complies with a substantive due process, rational basis test. Instead, the
IDOT rules were part of a quasi-legislative rulemaking process wherein a
government agency considered the degree to which highly controversial
39
ATE systems should be permitted. Even if valid, the IDOT rules would
not supplant the role of the court in determining whether there is a
violation of substantive due process.
In any event, the IDOT order did not establish that the Cedar
Rapids ATE system is so arbitrary or unrelated to public safety as to
amount to a violation of substantive due process. With respect to two
locations, the IDOT order required a movement of the camera/radar
equipment to comply with an IDOT rule that such equipment not be
placed within 1000 feet of a posted change in speed. Even if the IDOT
report might be cited as establishing a violation of an IDOT rule, a
violation of state law alone does not give rise to a substantive due
process violation. See Nordlinger v. Hahn, 505 U.S. 1, 26, 112 S. Ct.
2326, 2340 (1992) (Thomas, J., concurring in part and dissenting in
part); Hughes, 840 F.3d at 991; McIntosh v. Patridge, 540 F.3d 315, 323–
24 (5th Cir. 2008); Stern v. Tarrant Cty. Hosp. Dist., 778 F.2d 1052, 1059
(5th Cir. 1985).
The IDOT’s order that the City remove or disable ATE equipment at
two locations also does not establish a substantive due process violation.
The IDOT order does not suggest that these locations have no
relationship to public safety. Rather, the IDOT order indicates that the
ATE equipment at these locations is “beyond the area of primary
concern,” namely, the area immediately preceding the “S” curve on I-380
in downtown Cedar Rapids. According to the IDOT, ATE systems should
only be considered “in extremely limited situations” on interstate roads
because they are “the safest class of any roadway in the state and
typically carry a significant amount of non-familiar motorists.” The IDOT
order does not make a finding that the equipment did not promote public
40
safety, but only that the placement of the ATE equipment did not meet
the narrow criteria developed for placement of ATE equipment.
It is, of course, true that the ATE system generates revenues for
Cedar Rapids. That fact alone does not invalidate the ordinance on
substantive due process grounds in this case. Just as a tax on tobacco
has the potential of deterring youth smoking, Cedar Rapids may
rationally believe that the impositions of fines for speeding violations
generally deters speeding. See Gardner, 656 F. Supp. 2d at 761 (stating
while ATE ordinance “no doubt raise revenue,” it also “serves to promote
safe driving practices”); cf. Randolph Kline et al., Beyond Advertising
Controls: Influencing Junk-Food Marketing and Consumption with Policy
Innovations Developed in Tobacco Control, 39 Loy. L.A. L. Rev. 603, 622 &
n.93 (2006) (“[T]axes help deter smoking by raising the cost of tobacco,
which has been shown to be the most effective approach to lowering
smoking rates, especially among youth, who are generally sensitive to
price increases.”). The fact that speeding violations at locations may not
have declined over certain time periods does not establish a lack of
relationship to public safety, but may be due to increased traffic or other
factors. Further, Cedar Rapids may rationally conclude that the
incidence of speeding would have been even larger in the absence of ATE
enforcement.
The plaintiffs raise a series of technical arguments regarding the
accuracy and reliability of the ATE system. While they might conceivably
provide the basis for a defense in a particular case, they do not provide
the basis for a facial challenge to the ATE system on substantive due
process grounds. For instance, while plaintiffs assert an error rate of two
percent, that is actually pretty good and, in any event, a driver has an
41
opportunity to challenge the accuracy of any citation through the
administrative and/or judicial process established by the ATE ordinance.
Yet, we are troubled by other facts in this record. Cedar Rapids
reaps large amounts of money from the ATE system—millions of dollars
per year. If promoting safety were Cedar Rapids’ real goal, why does the
ordinance penalize vehicle owners and not the drivers where the
deterrence function would be much greater? The idea that vehicle
owners will be more careful allowing others to drive their vehicles seems
tenuous at best. One might also wonder why the City maintains a
system generating 35,000 tickets per year at the end of the hazardous
“S” curve when, according to IDOT, most of the danger has passed. This
suggests that the placement of the ATE equipment is concerned with the
generation of money rather than safety. And, the notice of violation
seems primarily designed to getting money quickly from cited owners by
not candidly advising the owners of their right to a district court
proceeding and by threatening them with the prospect of adverse impact
on their credit rating.
Yet, on balance, we conclude that the record in this case shows as
a matter of law that the issue is fairly debatable. Enforcing speed limits
on busy roads is not inherently irrational. Making unlawful behavior
costly is also not irrational, and there is a fair likelihood that the owner
of the vehicle was either the driver or the driver was a family member of
the owner. It may be that Cedar Rapids and Gatso did not undertake
preimplementation studies that the plaintiffs’ expert would have
preferred, but there is no requirement that the government act in an
optimum manner in order to satisfy substantive due process. Further,
while the continued high number of violations over time at some ATE
locations is interesting, it does not make it irrational or arbitrary to
42
continue to maintain the systems at those locations. After all, without
the ATE system to deter violations, the number of speeders might have
been even higher. We are not engaged in strict scrutiny review; rather,
we are engaged in a careful but deferential review, even if applied with
greater bite than federal precedent.
We next consider whether the ATE ordinance runs afoul of
substantive due process under a shocks-the-conscience test. Under
federal precedent following Rochin, 342 U.S. 165, 72 S. Ct. 205, the
shocks-the-conscience test has become extremely difficult to meet. As
noted in United States v. Duvall, the shocks-the-conscience test is
reserved for “the rarest and most outrageous circumstances.” 846 F.2d
966, 973 (5th Cir. 1988) (quoting United States v. Arteaga, 807 F.2d 424,
426 (5th Cir. 1986)). We observed in Blumenthal that in order to meet
the test, government action must be, among other things, “offensive to
human dignity.” 636 N.W.2d at 265 (quoting Rivkin v. Dover Twp. Rent
Leveling Bd., 671 A.2d 567, 575 (N.J. 1996)). Further, we observed that
“the collective conscience of the United States Supreme Court is not
easily shocked.” Id. (quoting Rivkin, 671 A.2d at 575).
Some states have departed from the narrow federal shocks-the-
conscience precedent in some contexts. For instance, several state
supreme courts have found that certain types of police misconduct in the
context of entrapment might shock the conscience even if the defendant
was predisposed to commit crime and therefore not entitled to an
entrapment defense. See State v. Glosson, 462 So. 2d 1082, 1085 (Fla.
1985) (involving use of contingent fee for informant testimony); State v.
Hohensee, 650 S.W.2d 268, 268–69, 274 (Mo. Ct. App. 1982) (reversing
conviction based on burglary sponsored and operated by police as
violating due process); People v. Isaacson, 378 N.E.2d 78, 84–85 (N.Y.
43
1978) (holding conviction based on police misconduct and trickery to
secure drug sales violates due process).
Yet, even if we were to adopt a somewhat less restrictive approach
to the shocks-the-conscience test, we would not apply the doctrine under
the facts presented here. There is no doubt that many citizens regard
ATE systems as “speed traps.” ATE systems are unforgiving and
nondiscriminatory. The ATE systems deprive citizens of the opportunity
to plead their case to a local police officer who pulls them to the side of
the road, in the hope of obtaining a warning instead of a citation through
the exercise of the officer’s discretion. Further, ATE systems
dramatically increase the chances of receiving a citation for a speeding
violation compared to the traditional enforcement technique of chase and
capture. To persons with a penchant to speed, the increased efficiency of
detection is undesirable. Finally, many see ATE systems with their
combination of cameras and radar as Orwellian invasions of privacy.
The Cedar Rapids ATE system, with its various notices, seeks to
encourage payment of fines rather than to force the City to bring a
municipal infraction in small claims court.
While we respectfully acknowledge these concerns, this case
involves traffic citations with small fines, not the pumping of a resisting
person’s stomach. See Rochin, 342 U.S. at 166, 72 S. Ct. at 206. There
is no outrageous utilization of physical force; state-sponsored imposition
of uncalled-for embarrassment or ridicule; or intolerable, disreputable,
and underhanded tactics that may arise from government action
deliberately designed to penetrate attorney–client privilege. Cedar Rapids
publicly enacted the ATE ordinance, and the ATE system is no secret.
The City announces the presence of the cameras on the road. The
invasion of privacy associated with a system based upon rear license
44
plate photographs is minimal. Based on the record in this case, the ATE
system does not shock the conscience for purposes of substantive due
process under the due process clause of article I, section 9 of the Iowa
Constitution.
It is important to emphasize again that under substantive due
process analysis, the state is given great leeway in achieving its
legitimate goals, particularly those related to public safety. Mackey v.
Montrym, 443 U.S. 1, 17–19, 99 S. Ct. 2612, 2620–21 (1979). The
question before us is not whether Cedar Rapids has made an optimum
policy choice, or whether it could have made a better policy choice, but
whether it has made a permissible policy choice in implementing the ATE
system based on the factual record before us.
That said, the mere incantation of the abracadabra of public safety
does not end the analysis. It is possible to imagine a scenario in which
the challenger develops a factual record that demonstrates an ATE
system as implemented is so attenuated and remote from public safety
concerns and is simply designed to raise revenues for the city that it
violates rationale basis analysis. 6 But we conclude that the plaintiffs
have not made such a showing in this case.
D. Equal Protection, Privileges and Immunities Claims.
1. Introduction. We now consider the plaintiffs’ equal protection
and privileges and immunities claims under article I, section 6 of the
Iowa Constitution. Here, the focus is not on the rationality of the ATE
system in general, as was the case with the substantive due process
6The plaintiffs have not claimed that the ATE system is an illegal tax not
authorized by the legislature. See Brennan, 470 S.W.3d at 384 (Draper, J., concurring);
Ballard, 419 S.W.3d at 122; cf. Homebuilders Ass’n of Greater Des Moines v. City of West
Des Moines, 644 N.W.2d 339, 350 (Iowa 2002) (holding park fees were taxes rather than
regulatory fees). We express no view on this issue.
45
argument, but is instead on the rationality of classifications utilized by
the ATE system.
We note the ATE ordinance itself does not establish, on its face,
some of the classifications that the plaintiffs challenge. For instance, the
ATE ordinance does not distinguish between privately owned vehicles,
semi-trailer trucks, and government-owned vehicles. These distinctions
arise only in the context of the ordinance’s implementation through the
use of a system and a database that does not permit enforcement of the
ATE system against semi-trailer truck owners or government-owned
vehicles.
Nonetheless, we think equal protection principles are applicable to
the classifications that arise as a result of the manner of implementation
of the ATE ordinance. When a statute is facially neutral and does not
contain a classification, the plaintiff must prove a classification is used
in practice. If the plaintiff meets that burden, the court proceeds with an
equal protection analysis. Sylvia Dev. Corp. v. Calvert County, 48 F.3d
810, 818–19 (4th Cir. 1995); cf. Hy-Vee Food Stores, Inc. v. Iowa Civil
Rights Comm’n, 453 N.W.2d 512, 516 (Iowa 1990) (distinguishing
between disparate treatment and disparate impact in employment
discrimination case and noting that “[t]he latter involves employment
practices that are facially neutral in their treatment of different groups
but that in fact fall more harshly on one group than another and cannot
be justified by business necessity”).
2. Positions of the parties. Plaintiffs assert that as implemented,
the ordinance gives rise to three separate classifications that offend Iowa
concepts of equal protection. First, plaintiffs note that unlike ordinary
vehicle owners who are exposed to Cedar Rapids’ ATE system, semi-
trailer truck owners, whose rear license plates are not included in the
46
database used by the ATE system to identify vehicle owners, are not, as a
practical matter, subject to enforcement under the ordinance. Plaintiffs
make a similar as-applied equal protection argument with respect to
government-owned vehicles, whose plate numbers also are not found in
the database used by the ATE system. Finally, the plaintiffs cite the fact
that out-of-state vehicle owners may submit written appeals, while the
same procedure is not extended to in-state vehicle owners, as evidence
the ordinance, as applied, violates equal protection.
Plaintiffs identify safety as the ATE ordinance’s ostensible purpose,
which provides the context for evaluating the classification. See Gartner
v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 350–51 (Iowa 2013).
Plaintiffs proceed to argue that the asserted state interest of safety must
be “realistically conceivable” and must have “a basis in fact.” See RACI
II, 675 N.W.2d at 7–8 (emphasis omitted) (first quoting Miller, 394 N.W.2d
at 779). According to the plaintiffs, the classifications in the ordinance
must be evaluated to determine whether the classifications bear any
relationship to the purpose of the ordinance, namely, promoting public
safety. Plaintiffs suggest that Cedar Rapids is not entitled to deference in
the evaluation of the classifications because the decision to create the
classifications was not made by the Cedar Rapids City Council, but by
Cedar Rapids employees and Gatso in implementing the ordinance.
Plaintiffs argue that from a safety viewpoint, it is irrational to
exclude semi-trailer trucks and government-owned vehicles from the ATE
system. Plaintiffs claim that semi-trailer trucks and government-owned
vehicles do not pose any less of a safety risk on interstate highways than
vehicles identified in the database used by the City. In the vernacular of
our caselaw, plaintiffs assert that the relationship between the
classification and safety is “so attenuated as to render the distinction
47
arbitrary or irrational.” RACI II, 675 N.W.2d at 8 (quoting Fitzgerald, 539
U.S. at 107, 123 S. Ct. at 2159). According to plaintiffs, distinguishing
ordinary vehicles from semi-trailer trucks and government-owned
vehicles is as irrational as distinguishing between racetracks and
riverboats in RACI II.
The plaintiffs also challenge the fact that out-of-state vehicle
owners are allowed to submit written appeals while the same privilege is
not extended to vehicle owners who are Iowa residents. The plaintiffs
point out that some in-state residents live further from Cedar Rapids
than do some out-of-state residents.
Cedar Rapids responds by citing federal precedent for the
proposition that we have generally followed federal equal protection
analysis when construing article I, section 6. See Johnson v. Univ. of
Iowa, 408 F. Supp. 2d 728, 749 (S.D. Iowa 2004) (citing the pre-RACI II
case of In re Det. of Morrow, 616 N.W.2d 544 (Iowa 2000)), aff’d, 431 F.3d
325 (8th Cir. 2005). Applying the traditional caselaw, Cedar Rapids
asserts that plaintiffs’ arguments fail.
Cedar Rapids recognizes that an equal protection challenge may be
launched based upon classifications established by the practical
application of a statute or ordinance. Nonetheless, classifications
created by practical applications still must generally be reviewed by a
court through application of the rational basis test. In the application of
the rational basis test, the City argues we should accept “generalized
reasons to support the legislation, even if the fit between the means and
end is far from perfect.” Varnum, 763 N.W.2d at 879 n.7. A
classification or practice is not invalid, Cedar Rapids urges, “because the
classification ‘is not made with mathematical nicety or because in
practice it results in some inequality.’ ” U.S. R.R. Ret. Bd. v. Fritz, 449
48
U.S. 166, 175, 101 S. Ct. 453, 459 (1980) (quoting Dandridge v. Williams,
397 U.S. 471, 485, 90 S. Ct. 1153, 1161 (1970)). Cedar Rapids asserts
that the legislature “may select one phase of one field and apply a
remedy there, neglecting the others.” Hawkeye Commodity Promotions,
Inc. v. Miller, 432 F. Supp. 2d 822, 859 (N.D. Iowa 2006) (quoting
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S. Ct. 461,
465 (1955)).
Under the above principles, Cedar Rapids argues, the fact that the
ATE system does not capture every vehicle does not make it legally
infirm. Quoting the federal district court decision in Hughes, Cedar
Rapids argues that it is rational to conclude a system that “only
photographs rear license plates is less expensive and that it is more cost-
effective to capture fewer people who violate the Ordinance with a less
expensive system.” Hughes, 112 F. Supp. 3d at 842. The use of the
Nlets database may be the most cost-effective way to enforce the
ordinance. See id. at 842–43. Further, Cedar Rapids asserts that a front
license plate system would be more invasive of privacy as passengers in
the vehicle may be identifiable, as well as more costly, technically more
difficult, largely redundant, and burdensome.
With respect to the classification in the ordinance allowing out-of-
state recipients to respond by mail rather than appearing in person,
Cedar Rapids argues such a classification is rational. The classification,
according to Cedar Rapids, might not use mathematical niceties, but it is
rational to assume, generally, that the burden of responding to a citation
in person is greater on out-of-state vehicle owners than it is on in-state
vehicle owners.
3. Discussion. We first consider the question of whether the
exclusion of government-owned vehicles and semi-trailer trucks from the
49
Nlets database and the resulting inability of the Cedar Rapids ATE
system to cite these vehicles for speeding violate equal protection under
the Iowa Constitution. See RACI II, 675 N.W.2d at 10. Certainly, from a
pure safety viewpoint, there is no reason to think that government-owned
vehicles and semi-trailer trucks are less dangerous than privately owned
vehicles generally, and Cedar Rapids has not made such a claim.
Cedar Rapids, however, argues that use of the Nlets system is cost-
effective. While other systems might be available, they would be more
expensive, according to Cedar Rapids. The summary judgment record,
however, contains no direct evidence regarding the cost of implementing
a front camera system that captured the license plates of vehicles
hauling semi-trailers. It might be inferred, perhaps, that the cost of
radar and camera technology capturing front plates should be no
different from the cost of capturing back plates. All that changes is the
direction of the equipment. But the record does not contain any actual
dollar figures comparing the costs of the two systems.
At the outset, we think that a government may rationally decide to
confront part of a problem rather than the whole problem for reasons of
cost. Providing law enforcement in a cost-effective manner is a legitimate
government interest. Cf. Thomas v. Fellows, 456 N.W.2d 170, 173 (Iowa
1990) (holding statute requiring disclosure of expert witness in medical
malpractice case did not violate plaintiffs’ equal protection rights on
ground that it abridged access to the courts, noting “the problems
surrounding medical liability, liability insurance, and the attendant
availability and cost of medical services to the pubic are . . . rational
reasons for the enactment”); State v. Nat’l Advert. Co., 387 A.2d 745, 750
(Me. 1978) (holding classification scheme adopted by state to keep the
cost of its control of highway advertising to a minimum did not violate
50
equal protection under a rational basis analysis “because all sign owners
affected by the legislation were not treated alike”); Menefee v. Queen City
Metro, 550 N.E.2d 181, 183 (Ohio 1990) (holding statute that prohibited
subrogation claims against political subdivisions by insurers was
rationally related to state’s interest in preserving financial soundness of
subdivision and not violative of equal protection). But see Graham v.
Richardson, 403 U.S. 365, 374–75, 91 S. Ct. 1848, 1853 (1971) (holding
that while state may legitimately attempt to limit its spending, it cannot
do so by invidious distinction between “person” for equal protection
purposes); Bruns v. Mayhew, 750 F.3d 61, 66 (1st Cir. 2014) (“Though
states traditionally enjoy broad power to regulate economics and social
welfare, even the otherwise ‘valid interest in preserving the fiscal integrity
of [state] programs’ is generally insufficient grounds for a state-imposed
burden on alienage to survive an equal protection challenge.” (quoting
Graham, 403 U.S. at 374, 91 S. Ct. at 1853)). Law enforcement makes
decisions to limit law enforcement all the time based upon resource
limitations. The fact that a local government has police resources for
road radar at two out of ten locations with comparable speeding
problems and safety concerns does not mean there is an equal protection
problem because not all similar locations in the city have been covered.
The question is whether Cedar Rapids has shown, as a matter of
law on the summary judgment record, that no reasonable fact finder
could conclude that the City’s purported cost justification was not
“realistically conceivable” and had no “basis in fact.” RACI II, 675
N.W.2d at 7–8 (emphasis omitted) (first quoting Miller, 394 N.W.2d at
779); see also Residential & Agric. Advisory Comm., LLC v. Dyersville City
Council, 888 N.W.2d 24, 50 (Iowa 2016) (emphasizing that the legitimate
government interest must have a basis in fact).
51
While the record does not concretely establish the cost of front-
and back-plate systems, it does establish that Cedar Rapids generates
millions of dollars from the back-plate ATE system that prevents
inclusion of semi-trailer trucks. If the City employed front- and back-
plate license technology, one can fairly infer that fines paid by speeding
semi-trailer truck owners would increase revenues by some amount. Is
it realistically conceivable that the cost of front- and back-plate cameras
would exceed the revenues generated by the additional fines paid by
semi-trailer truck owners?
If the evidence in this case demonstrated that the cost difference
between front- and back-plate and back-plate technology were minimal—
or even nonexistent—Cedar Rapids’ asserted cost justification might be
questioned. Facts matter. But is there enough, on the present record, to
allow a fact finder to conclude that the issue is fairly debatable?
This court is not comprised of experts on ATE systems. While the
front- and back-plate technology might be available, the record does not
give us any idea what the problems might be in implementing such a
system. Is it more difficult or more costly to implement a front- and
back-plate system that captures semi-trailer trucks? Is there something
about the size and configuration of semi-trailer trucks that requires more
costly systems? Do the same systems that capture speeding semi-trailer
trucks capture ordinary speeding passenger vehicles? The record does
not tell us in any concrete way what the costs of implementing a front-
plate system would be or what additional revenues would be generated
by the inclusion of semi-trailer trucks in the ATE system. The bottom
line is that, on the present record, we conclude the City’s asserted cost
rationale is realistically conceivable and has a basis in fact.
52
With respect to the noninclusion of government-owned vehicles, we
also reject the plaintiffs’ equal protection claim. Cedar Rapids notes that
government-owned vehicles are not part of the Nlets database. The
record in this case, however, does not establish whether there are other
databases that include government-owned vehicles that Cedar Rapids
can access in a cost-effective manner. Here, there are no inferences from
facts in the record that would show that the cost would be insignificant
compared to the revenue generated, and there is no evidence that the
cost rational is not realistically conceivable and supported “in fact.” On
the summary judgment record, Cedar Rapids’ position on the exclusion
of government-owned vehicles is plausible and fairly debatable as a
matter of law. The district court properly granted summary judgment on
this claim.
We now turn to whether allowing out-of-state vehicle owners to
participate in administrative hearings through written submission while
not extending the same opportunity to in-state vehicle owners violates
equal protection. We think it does not. It is rational to allow vehicle
owners that live at great distances from Cedar Rapids to respond by mail
rather than requiring them to appear at a hearing to contest a citation.
See RACI II, 675 N.W.2d at 7. A more exact method might be to allow
written submissions by persons who live a certain number of miles
outside Cedar Rapids, but this could pose substantial administrative
problems determining who lives within the mileage radius. The use of
state residency provides a less complex approach than a mileage
approach. See State v. Mitchell, 757 N.W.2d 431, 436 (Iowa 2008) (noting
that under rational basis review, a classification need not be narrowly
tailored). It is rational to assume that vehicle owners who live out of
state, in general, live further from Cedar Rapids than Iowa residents.
53
V. Procedural Challenges Based on Preemption and Procedural
Due Process.
A. Challenges Based Upon Preemption.
1. Introduction. Municipalities have home rule authority to enact
legislation “not inconsistent with the laws of the general assembly.” Iowa
Const. art. III, § 38A. This means that the general assembly has the
power to preempt municipalities from enacting otherwise lawful
legislation.
There are two types of preemption. Madden v. City of Iowa City,
848 N.W.2d 40, 49 (Iowa 2014). The legislature may expressly preempt
certain kinds of local legislation. Id. In addition to express preemption,
we have recognized under certain circumstances that the legislature may
impliedly preempt local legislation. Id. Implied preemption occurs when
“an ordinance prohibits an act permitted by statute, or permits an act
prohibited by statute.” Seymour, 755 N.W.2d at 538.
The standard for concluding that a local ordinance is impliedly
preempted is demanding. Id. at 539. In order to conclude that an
ordinance is impliedly preempted, “local law must be ‘irreconcilable’ with
state law.” Id.
We have already considered whether municipal ATE systems that
impose civil penalties for violation of statewide traffic regulations were
impliedly preempted. Id. at 537. We held that the municipal ATE
systems were not impliedly preempted because they were not
irreconcilable with state law. Id. at 542–43; cf. Hensler, 790 N.W.2d at
585–86 (holding city’s parental responsibility ordinance was not
impliedly preempted by Iowa’s comprehensive juvenile justice code).
In Rhoden v. City of Davenport, we considered whether the
Davenport ATE ordinance was inconsistent with Iowa Code section
54
364.22(7). 757 N.W.2d 239, 241 (Iowa 2008). The court noted that
section provides in relevant part, “All penalties or forfeitures collected by
the court for municipal infractions shall be remitted to the city in the
same manner as fines and forfeitures are remitted for criminal violations
under section 602.8106.” Id. (emphasis in original) (quoting Iowa Code
§ 364.22(6) (2008) (now § 364.22(7) (2018))). In Rhoden, we found that
the procedure for remitting fines in the Davenport ATE ordinance was
not inconsistent with the statute where there was no court involvement
in the process. Id. We noted that Iowa Code section 364.22(6) applied
only to forfeitures “collected by the court.” Id. (emphasis omitted).
Under the Davenport ordinance, only “payments for unchallenged
violations” which did not involve the court were payable to Davenport’s
finance department rather than to the clerk of the district court as
required when judicial means are employed to collect fines. Id. We held
that the ordinance providing for payments to Davenport’s finance
department was not inconsistent with the procedures required by Iowa
Code section 364.22(6) when fines were “collected by the court.” Id.
In this case, plaintiffs challenge the ordinance because it allows
the City to enforce civil penalties outside the judicial process for
enforcing “municipal infractions” provided in Iowa Code section 364.22
and the jurisdictional provisions of Iowa Code section 602.6101.
2. Relevant statutes, ordinances, and notices. Before considering
further plaintiffs’ implied preemption claim, we set out the relevant
statutes and provisions of the ATE ordinance.
Iowa Code section 602.6101 relates to the jurisdiction of the
district court, which is generally exclusive, subject to certain exceptions.
This provision states, in relevant part,
55
The district court has exclusive, general, and original
jurisdiction of all actions, proceedings, and remedies, civil,
criminal, probate, and juvenile, except in cases where
exclusive or concurrent jurisdiction is conferred upon some
other court, tribunal, or administrative body.
Iowa Code § 602.6101 (2015).
Iowa Code chapter 364 deals with the powers and duties of cities.
Section 364.22 provides a detailed framework for dealing with municipal
infractions. Section 364.22(1)(a) provides that “[a] municipal infraction
is a civil offense punishable by a civil penalty of not more than seven
hundred fifty dollars for each violation” unless the infraction is a repeat
offense. For repeat offenses, the penalty may not exceed one thousand
dollars. Id.
Under section 364.22(2), a city “may provide that a violation of an
ordinance is a municipal infraction.” Section 364.22(4) states an
authorized officer of the city “may issue a civil citation to a person who
commits a municipal infraction.” A civil citation for a municipal
infraction must include, among other things, “[t]he time and place of
court appearance” and “[t]he penalty for failure to appear in court.” Id.
§ 364.22(4)(f), (g). Iowa Code section 364.22(4) further provides that
service of the civil citation may be made
by personal service as provided in rule of civil procedure
1.305, by certified mail addressed to the defendant at the
defendant’s last known mailing address, return receipt
requested, or by publication in the manner provided by the
rule[s] of civil procedure.
Id. § 364.22(4).
Iowa Code section 364.22(6)(a) provides that in municipal
infraction proceedings “[t]he matter shall be tried before a magistrate, a
district associate judge, or a district judge in the same manner as a small
claim.” At a trial on a municipal infraction, “[t]he city has the burden of
56
proof that a municipal infraction occurred and that the defendant
committed the infraction.” Id. § 364.22(6)(b). The city’s burden of proof
is “by clear, satisfactory, and convincing evidence.” Id. A defendant in a
municipal infraction proceeding is entitled to “be represented by counsel
of the defendant’s own selection and at the defendant’s own expense.”
Id. § 364.22(6)(d). Only when a judgment has been entered against the
defendant may the court “[i]mpose a civil penalty by entry of a personal
judgment against the defendant.” Id. § 364.22(10)(a)(1). The court may
also “[d]irect that payment of the civil penalty be suspended or deferred
under conditions imposed by the court” or “[g]rant appropriate
alternative relief ordering the defendant to abate or cease the violation.”
Id. § 364.22(10)(a)(2), (3).
The City’s ATE ordinance does not directly characterize a notice of
violation arising from the ATE system as a “municipal infraction,” but
simply declares that a vehicle owner is liable for “[c]ertain [t]raffic
[o]ffenses” as provided in the ordinance. Cedar Rapids, Iowa, Mun. Code
§ 61.138(c). For such “traffic offenses,” including those based on speed,
the ordinance establishes a schedule of “civil fines” ranging from $25 to
$750 per violation. Id. § 61.138(d)(3). The maximum “civil fine” is the
same as the maximum “civil penalty” authorized by Iowa Code section
364.22(1)(a) for municipal infractions. Further, the ordinance
specifically states that the fines imposed are “subject in any event to the
limit on fines sought in municipal infractions.” Id. § 61.138(d)(3).
The process for imposing liability under the ordinance is different
from that under Iowa Code section 364.22. Under the ordinance, the
notice of violation is sent by first class mail to the vehicle owner for each
recorded violation, not served personally, sent by certified mail, or served
by publication as under Iowa Code section 364.22(4). Id. § 61.138(d)(1).
 57
Like Iowa Code section 364.22, the ordinance provides a laundry list of
what must be included in the notice. Compare Iowa Code § 364.22(4),
with Cedar Rapids, Iowa, Mun. Code § 61.138(d)(1). The laundry list
under the ordinance, however, does not include the right to be
represented by counsel or the right to notice about court appearances
and penalties imposed by the court as in Iowa Code section 364.22.
The ATE ordinance provides procedures for contesting a citation in
two lengthy paragraphs that are at variance with Iowa Code section
364.22. See Cedar Rapids, Iowa, Mun. Code § 61.138(e). According to
the ordinance, a vehicle owner who has received a notice of violation may
contest it in two ways. Id. The first path is by seeking a hearing before
an administrative appeals board, a process not provided in Iowa Code
section 364.22. Compare Iowa Code § 364.22, with Cedar Rapids, Iowa,
Mun. Code § 61.138(e)(1). Specifically, the ordinance provides that a
vehicle owner may contest a citation
[b]y submitting in a form specified by the City a request for
an administrative hearing to be held at the Cedar Rapids
Police Department before an administrative appeals board
(the “Board”) consisting of one or more impartial fact finders.
Such a request must be filed within 30 days from the date
on which Notice of the violation is sent to the Vehicle Owner.
After a hearing, the Board may either uphold or dismiss the
Automated Traffic Citation, and shall mail its written
decision within 10 days after the hearing to the address
provided on the request for hearing. If the citation is upheld,
then the Board shall include in its written decision a date by
which the fine must be paid, and on or before that date, the
Vehicle Owner shall either pay the fine or submit a request
pursuant to the next paragraph . . . .
Cedar Rapids, Iowa, Mun. Code § 61.138(e)(1).
The second path for contesting an ATE citation is through
submitting a request that Cedar Rapids issue a municipal infraction
citation and proceed with enforcement of the municipal infraction in
58
small claims court. Id. § 61.138(e)(2). Specifically, the ordinance
provides that a vehicle owner may challenge an ATE citation
[b]y submitting in a form specified by the City a request that
in lieu of the Automated Traffic Citation, a municipal
infraction citation be issued and filed with the Small Claims
Division of the Iowa District Court in Linn County. Such a
request must be filed within 30 days from the date on which
Notice of the violation is sent to the Vehicle Owner.
Id. § 61.138(e)(2).
Finally, the ordinance has a provision related to the failure of a
vehicle owner to timely pay or appeal. Id. § 61.138(g). Under section
61.138(g), if a recipient of a traffic citation does not “pay the fine by the
due date stated on the original citation or contest the citation” through
either seeking an administrative hearing or requesting the filing of a
municipal infraction, “then the recipient shall be deemed to have waived
all rights to contest the citation” and “shall be liable for any fine imposed
herein plus a late penalty of 25% of the fine imposed for failure to timely
pay or appeal the citation.” Id.
In other words, under the ordinance, a recipient who does nothing
upon receipt of a citation is declared “liable” and the sums due “shall
constitute a debt due and owing to the City of Cedar Rapids.” Id.
Similarly, a vehicle owner is “deemed” to have waived all rights to contest
the citation if the owner pursues the administrative remedy provided by
the ordinance but does not timely request that the City file a municipal
infraction after an adverse result at the administrative hearing. Id.
Thus, unlike Iowa Code section 364.22, a vehicle owner who does
nothing is declared liable under the ordinance. Under Iowa Code section
364.22, no liability arises until the city takes the affirmative step of filing
an enforcement action in district court and obtains a judgment against
the defendant. See Iowa Code § 364.22(4), (5)(b), (6)(f), (10)(a) (imposing
59
a duty on the city to file the citation with the district court and the
county treasurer’s office). Iowa Code section 364.22 does provide for
entry of judgment upon default of the defendant, but only if the court
determines that defendant has been served pursuant to Iowa Code
section 364.22(4) and the defendant’s failure to respond was without
good cause. Id. § 364.22(7).
3. Positions of the parties. The plaintiffs make three separate
arguments asserting that state law preempts the ATE system.
First, the plaintiffs facially attack the ordinance as conflicting with
several provisions of state law. The plaintiffs point out that under Iowa
Code section 364.22(6)(a), municipal infractions must be tried before a
magistrate, a district associate judge, or a district court judge “in the
same manner as a small claim.” The plaintiffs argue that the ATE
ordinance, which provides the right to contest the violation at an
administrative hearing, is inconsistent with the legislative mandate that
municipal infractions must be tried as a small claim. Further, plaintiffs
argue the administrative hearing process established in the ATE
ordinance is inconsistent with the legislature’s directive that district
courts have “exclusive, general, and original jurisdiction of all actions.”
Id. § 602.6101. The plaintiffs argue that these statutes demonstrate that
the ATE ordinance permits what the legislature has prohibited.
Plaintiffs attack the administrative process established by the
ordinance. Plaintiffs note that Iowa Code section 364.22(6)(b) requires
Cedar Rapids bear the burden of proving a municipal infraction by “clear,
satisfactory, and convincing evidence.” Yet, the administrative hearing
officers in this case appear to have rendered decisions on the issues
based upon a preponderance of the evidence.
60
As part of their challenge to the administrative process established
by the ordinance, the plaintiffs point to three provisions of Iowa Code
section 364.22(4) related to municipal infractions. First, plaintiffs note
that this provision provides that “[a]n officer authorized by a city” may
issue a municipal infraction citation. Id. Further, the section states that
service of the municipal infraction may be made by personal service,
certified mail with return receipt requested, or by publication. Id.
Finally, the section requires that a copy of the citation “shall be retained”
by the issuing officer and the original citation sent to the clerk of court.
Id. The plaintiffs point out that the ATE ordinance allows Gatso, a
private entity, to issue the citation; that service is allowed by ordinary
mail; and that a copy of the citation is not filed with the district court.
Additionally, plaintiffs argue the IDOT evaluation and order
preempted the citations issued after March 2015 in this case. According
to the plaintiffs, Cedar Rapids’ continued use of the radar and cameras
after the issuance of the order is patently inconsistent and irreconcilable
with the agency’s decision. As a result, the plaintiffs argue that Cedar
Rapids’ conduct is preempted.
Finally, the plaintiffs argue the ATE system’s failure to capture
government-owned vehicles creates a preemption problem. Iowa Code
section 321.230 expressly states that the provisions of the chapter on
traffic laws, including speeding regulations, apply to the drivers of all
government vehicles. Thus, Plaintiffs claim the operation of the ATE
system, which does not capture government-owned vehicles, is
preempted.
Cedar Rapids responds by emphasizing that in order for
preemption to apply, the conflict between the statute and the local
ordinance must be irreconcilable. See Seymour, 755 N.W.2d at 539.
61
Cedar Rapids stresses that the ordinance’s administrative hearing
procedure is not irreconcilable with the cited statutory provisions
because the ATE ordinance allows the recipient to contest the violations
in small claims court either instead of or in addition to the administrative
hearing. The essence of Cedar Rapids’ argument is that there is nothing
wrong with adding an additional layer of process as long as a vehicle
owner retains the right to compel Cedar Rapids to file a municipal
infraction citation in district court.
At most, according to Cedar Rapids, the administrative board
established by the ATE ordinance has concurrent jurisdiction with the
district court. Cedar Rapids points out that Iowa Code section 602.6101
expressly provides an exception to the exclusive jurisdiction of district
courts when another tribunal has concurrent jurisdiction.
Cedar Rapids further denies that a city officer does not issue the
ATE citations. Cedar Rapids points out that an officer approves each
citation before it is issued and the officer’s electronic signature is
attached to the bottom of each citation.
4. Discussion. We first consider whether the ordinance, on its
face, is preempted by various provisions of the Iowa Code related to
municipal infractions and district court jurisdiction. In determining
whether the ordinance is preempted, we must determine whether the
ordinance is “irreconcilable” with the terms of the statutes cited by the
plaintiffs. See id.
The first question is whether the terms of the ordinance create a
“municipal infraction” under Iowa Code section 364.22. The statute
defines “municipal infraction” as “[a] civil offense punishable by a civil
penalty of not more than seven hundred fifty dollars for each violation”
unless the infraction is for a repeat offense. Iowa Code § 364.22(1)(a).
62
Consistent with the definition of “municipal infraction” in the
statute, the ordinance establishes a “civil fine” up to $750 per violation.
Cedar Rapids, Iowa, Mun. Code § 61.138(d)(3). Further, the ordinance
itself recognizes that the amount of “civil fine” under the ordinance is
“subject . . . to the limit on fines sought in municipal infractions.” Id.
We thus think it clear that an ordinance violation where a civil fine
is sought is a “municipal infraction” under the statute. A city cannot
avoid Iowa Code section 364.22 by simply declaring that an effort to
impose a civil penalty for an ordinance violation is not really a municipal
infraction. Cf. City of Vinton v. Engledow, 258 Iowa 861, 866, 140
N.W.2d 857, 861 (1966) (invalidating a municipal ordinance that
attempted to redefine “reckless driving,” a term already defined by state
statute).
Having concluded that a violation of the ordinance resulting in a
“civil fine” is a “municipal infraction” under Iowa Code section
364.22(1)(a), the next question is whether the ordinance complies with
the requirements imposed by the statute.
Iowa Code section 364.22 provides procedural and substantive
protections for those charged with municipal infractions. In order to
commence a municipal infraction proceeding, an officer of the city may
issue a citation to the defendant. Iowa Code § 364.22(4). The citation,
which “serve[s] as notification that a civil offense has been committed,” is
required to contain certain information, including “[t]he time and place of
court appearance,” and “[t]he penalty for failure to appear in court. Id.
§ 364.22(4)(f)–(g) (emphasis added).
The statute directs such enforcement actions be tried in the
district court “in the same manner as a small claim.” Id. § 364.22(6)(a).
This statutory provision assures a defendant of the right to present
63
evidence and to contest violations before a neutral magistrate. Id.
§ 364.22(6)(c). In order to assure that the defendant can effectively
defend against alleged municipal infractions, the statute provides a right
to representation by counsel at the defendant’s expense in a proceeding
involving a municipal infraction. Id. § 364.22(6)(d).
In a municipal infraction proceeding, the city bears the burden of
proof “by clear, satisfactory, and convincing evidence.” Id. § 364.22(6)(b).
After a judgment is entered against the defendant, the court may
“[i]mpose a civil money penalty by the entry of a personal judgment
against the defendant.” Id. § 364.22(10)(a)(1). The court is also
authorized to suspend or defer payment or “[g]rant appropriate alternate
relief ordering the defendant to abate or cease the violation.” Id.
§ 364.22(10)(a)(2), (3).
These procedural and substantive rules are plainly designed to
establish the ground rules that a city must follow in seeking to enforce
an ordinance through the imposition of civil monetary penalties. They
are a legislative response to the adage, “You cannot fight city hall.”
We think it plain that the requirements of Iowa Code section
364.22 apply to any effort by a city to enforce a civil penalty arising from
a municipal infraction when a defendant denies liability. When a city
seeks to enforce a municipal ordinance through imposition of a civil
penalty in the face of a protesting citizen, there can be no “shortcut
around the judicial system and its protection for the rights of the
accused.” Brennan, 470 S.W.3d at 382; see Belt, 307 S.W.3d at 652–53.
But see Walker, 39 N.E.3d at 474.
That said, we also think it clear that voluntary informal means of
attempting to resolve disputes regarding municipal infractions prior to
the filing of a municipal infraction proceeding is permitted. That is the
64
teaching of Rhoden, 757 N.W.2d 239. In Rhoden, we held that the
provision in Iowa Code section 364.22 regarding the distribution of
monies collected in municipal infractions applied only where the
penalties were “collected by the court.” Id. at 241. If the city and a
citizen wish to negotiate a settlement short of the filing of a municipal
infraction, they may do so without violating Iowa Code section 364.22(7).
Under these principles, we find two problems emerge with respect
to the ordinance. First, it provides that a person who does not respond
to a notice of citation served by first-class mail pursuant to the ordinance
“waives all defenses” and is liable the civil fine under the ordinance.
Second, the ordinance purports to impose liability if a person who has
proceeded through the administrative process fails to timely request that
the City file a municipal infraction. Id. But, as seen above, liability for a
municipal infraction can only be determined through the municipal
infraction process and upon the entry of a judgment by the court. See
Iowa Code § 364.22(4), (5)(b) (requiring city to file municipal infraction
citations with the district court and with the county treasurer’s office); id.
§ 364.22(10)(a)(1) (civil penalty may be imposed by court after entry of
judgment).
The statute does provide for a default mechanism if the defendant
fails to respond. See id. § 364.22(7). But the default provision kicks in
only when the court determines that a person has been served as
provided in Iowa Code section 364.22(4) (providing for service of a notice
by personal service, certified mail, or publication and requiring that the
notice, among other things, clearly indicate the time and place of a court
appearance and the penalty for failure to appear in court) and the court
further determines that the failure to respond was without good cause.
65
Id. § 364.22(7). If these requirements are met, the statute provides that
the court shall enter judgment against the defendant. Id.
Under the statute, it is clear that any liability that might arise from
the failure of a defendant to respond to a municipal infraction is subject
to judicial supervision under the standards elaborated in Iowa Code
section 364.22. Such liability does not arise automatically as a result of
a failure of a defendant to meet the procedural requirements of a local
ordinance.
We conclude the provisions of the ordinance that purportedly
impose liability on a protesting vehicle owner who does not respond to a
notice of violation or who does not timely file a request with the City to
institute a municipal infraction proceeding at the conclusion of the
administrative process are irreconcilable with the provisions of Iowa Code
section 364.22. Upholding these provisions of the ordinance would be
tantamount to choosing the City’s enactment over the legislature’s
enactment, contrary to Seymour, 755 N.W.2d at 541. If the City wishes
to enforce liability under its ordinance upon a vehicle owner who does
not voluntarily agree to pay, it must institute a municipal infraction
action under Iowa Code section 364.22. As a result, we conclude that
the district court erred in granting summary judgment to the defendant
on the question of whether Iowa Code section 364.22 preempted the
ordinance.
The plaintiffs’ second preemption challenge arises out of their
argument that the ATE program is irreconcilable with the rules
established by the IDOT related to ATE systems. Because we have ruled
that the IDOT rules are invalid in City of Des Moines, 911 N.W.2d at 434,
the plaintiffs’ second preemption claim is without merit.
66
The plaintiffs’ final preemption claim relates to the fact that
government-owned vehicles are not included in the Nlets database and
therefore are not subject to ATE enforcement. The plaintiffs claim that
this reality is irreconcilable with Iowa Code section 321.230. We do not
agree. Cedar Rapids has not enacted a statute or rule that is
inconsistent with the notion that government-owned vehicles are
generally subject to the rules of the road. Instead, Cedar Rapids had
implemented an ATE program that does not capture government-owned
vehicles that may be speeding. That does not mean that the law does not
apply to government-owned vehicles, but only that government-owned
vehicles may evade a method of detection. We do not see a clash of
irreconcilable legal provisions here.
B. Procedural Due Process.
1. Introduction. In addition to substantive due process, plaintiffs
launch a series of claims based on notions of procedural due process
under the Iowa Constitution, article I, section 9. The plaintiffs have not
suggested that we should follow different substantive standards under
the Iowa Constitution than would be applied to procedural due process
claims under the Federal Constitution. As a result, we apply the
substantive federal standards, reserving the right to apply these
standards in a more stringent fashion than under federal caselaw. See
State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013); RACI II, 675 N.W.2d
at 5–7.
A party claiming a violation of procedural due process must first
show an impairment of an interest in life, liberty, or property by
government action. State v. Russell, 897 N.W.2d 717, 732–33 (Iowa
2017); State v. Seering, 701 N.W.2d 655, 665 (Iowa 2005). Once a
protected interest has been established, the next question is what
67
procedural minima must be provided before the government may deprive
the complaining party of the protected interest. In re C.M., 652 N.W.2d
204, 212 (Iowa 2002); Bowers v. Polk Cty. Bd. of Supervisors, 638 N.W.2d
682, 691 (Iowa 2002). Ordinarily, the procedural minima include two
components—notice and an opportunity to be heard on the issue.
Bowers, 638 N.W.2d at 690–91.
In considering procedural due process claims, it is important to
distinguish civil from criminal cases. See Shavitz, 270 F. Supp. 2d at
712. The due process standards for criminal cases are more stringent.
See Comm. on Prof’l Ethics & Conduct v. Durham, 279 N.W.2d 280, 284
(Iowa 1979). Here, the plaintiffs make no claim that the ATE ordinance
is criminal in nature. We therefore evaluate the ATE ordinance under
the procedural due process standard for civil matters.
2. Positions of the parties. At the outset, plaintiffs seek to merge
their preemption argument with procedural due process. 7 With respect
to their due process argument, the Plaintiffs assert that because the
remedies under the ATE ordinance are inconsistent with the procedural
requirements related to municipal infractions provided in Iowa Code
section 364.22(6), a violation of due process is present.
According to plaintiffs, the procedures outlined in Iowa Code
section 364.22 provide “the legislative measure” of due process
protection. Plaintiffs thus assert there is no need to engage in further
substantive analysis of the constitutionally required notice and
opportunity to be heard because the legislature has provided it for us.
7Procedural due process consists of two elements: (1) notice and (2) an
opportunity to be heard. Lewis v. Jaeger, 818 N.W.2d 165, 181 (Iowa 2012). The
plaintiffs attack the opportunity-to-be-heard prong of due process, but they do not
attack the notice prong. We thus do not consider whether alleged misrepresentations in
the various notices sent out by the City as part of the ATE program violate the notice
requirements of procedural due process.
68
The plaintiffs next attack the opportunity to be heard provided by
Cedar Rapids. The plaintiffs assert that the process provided by the City
does not meet procedural due process requirements under the balancing
test announced by the United States Supreme Court in Mathews, 424
U.S. at 335, 96 S. Ct. at 903. Under the familiar tripartite Mathews test,
the court considers (1) the nature of the interest involved; (2) “the risk of
an erroneous deprivation of such interests through the procedures used”;
and (3) “the [g]overnment’s interest, including the function involved, and
the fiscal and administrative burdens that the additional or substitute
procedural requirements would entail.” Id.
Plaintiffs argue that they have a property interest in “not being
subject to irrational monetary fines.” Jacobsma, 862 N.W.2d at 345.
Their property interest is heightened, according to plaintiffs, by the time
lost in the administrative process and by the possibility of being subject
to collection procedures, including reporting to a credit-reporting agency
and a civil lawsuit.
With respect to the erroneous deprivation prong of the Mathews
test, plaintiffs highlight that Gatso employees, not police officers, make
the initial determination of who is subject to enforcement using
unidentified standards. In addition, the notice of violation sent to vehicle
owners threatens collection actions for unpaid civil fines, which plaintiffs
assert seeks to deter vehicle owners from asserting their right to contest
the citation. Finally, plaintiffs note that at the administrative hearings,
no evidence is produced related to the calibration of the Gatso
equipment; the hearing officers use a preponderance-of-evidence
standard rather than a clear, satisfactory, and convincing standard
required by Iowa Code section 364.22; and no meaningful opportunity to
present evidence is provided.
69
On the governmental interest prong of the Mathews test, plaintiffs
characterize the government’s interest as not significant. Plaintiffs cite
the IDOT findings, claiming there was no support for the placement of
the ATE equipment at two locations and with respect to the other two
locations, the ATE systems were outside the perceived point of danger
along I-380. Plaintiffs argue that the costs of following the legislature’s
processes for municipal infractions cannot be considered unduly
burdensome and cannot be used to deprive the plaintiffs of
constitutionally required due process.
These defects, according to the plaintiffs, are not cured by later
providing adequate legal process. The plaintiffs cite Ward v. Village of
Monroeville, 409 U.S. 57, 93 S. Ct. 80 (1972). In Ward, the United States
Supreme Court noted that “the State’s trial court procedure [could not]
be deemed constitutionally acceptable simply because the State
eventually offers a defendant an impartial adjudication.” 8 Id. at 61, 93
S. Ct. at 84.
Cedar Rapids asserts that the notice of violation used by the ATE
system does not amount to a notice of a municipal infraction. In effect,
Cedar Rapids argues that an ATE citation only ripens into a municipal
infraction when the vehicle owner requests the City to file a municipal
8In their appellate brief, Plaintiffs raise two additional due process arguments.
First, plaintiffs assert that the administrative hearing officers provided by Cedar Rapids
are not impartial. Fact-bound challenges to the impartiality of hearing officers in ATE
systems have been made in a number of cases. See, e.g., Bevis, 686 F.3d at 281 & n.2
(finding that hearing officer employed by municipal executive alone does not offend due
process); Gardner, 656 F. Supp. 2d at 762 (noting plaintiff submitted no evidence of
actual bias or prejudgment); Shavitz, 270 F. Supp. 2d at 720 (finding no evidence of
partiality sufficient to override “presumption of honesty and integrity” (quoting Withrow
v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464 (1975))). Second, plaintiffs argue that
the enforcement of Cedar Rapids’ ordinance relies upon an “irrebuttable presumption”
that the vehicle owner is responsible for the infraction. Because the district court did
not rule upon either of these issues, they are waived on appeal. Meier v. Senecaut, 641
N.W.2d 532, 541 (Iowa 2002).
70
infraction in small claims court. As a result, the administrative process
is not contrary to Iowa Code section 364.22.
Cedar Rapids agrees with the plaintiffs that the proper test for
determining a procedural due process violation is the Mathews test.
Cedar Rapids does not dispute that plaintiffs have a property interest in
avoiding a fine, but that interest, according to the City, is not particularly
strong when the fine is $75. See Hughes, 112 F. Supp. 3d at 846.
On the risk-of-erroneous-deprivation prong of the Mathews test,
Cedar Rapids asserts that the plaintiffs overlook the fact that use of the
administrative process is optional and not mandatory. According to
Cedar Rapids, the plain language of the ordinance makes clear the
optional nature of the administrative process. See Cedar Rapids, Iowa,
Mun. Code § 61.138(e)(1)–(2).
In any event, Cedar Rapids argues that the administrative process
provides due process. Cedar Rapids challenges the plaintiffs’ assertion
that Gatso makes the initial determination of whether to issue a citation,
noting that under the ordinance a police officer makes the initial
decision. See id. § 61.138(a). Cedar Rapids further asserts that the fact
that Gatso filters out a substantial number of events for enforcement due
to difficulties in reading the license plate, the lack of vehicle identification
from the Nlets database search, or the presence of an emergency vehicle
with lights on, does not create a risk of erroneous deprivation for those
events actually forwarded to Cedar Rapids law enforcement for
evaluation.
Cedar Rapids concedes that the administrative hearings are
informal, but emphasizes that due to the availability of a small claims
court action an individual is no worse off as a result of participating in
such a hearing. In any event, Cedar Rapids asserts that there is a
71
governmental interest in out-of-court resolution of traffic charges. See
City of Des Moines v. Iowa Dist. Ct., 431 N.W.2d 764, 767 (Iowa 1988).
3. Discussion. We begin with a brief discussion of the interplay
between Iowa Code section 364.22 and due process. A mere violation of
a statute does not give rise to a due process violation as the statute may
provide more process than is constitutionally required. Sevin, 621
F. Supp. 2d at 387. Thus, violation of Iowa Code section 364.22 may
give rise to a claim of a statutory violation, but it does not automatically
translate into a claim of a constitutional violation. We therefore reject
plaintiff’s first contention that violation of the statute ends the
procedural due process constitutional analysis. 9
The question of whether the process outlined in the ATE ordinance
complies with due process under Mathews really raises two questions.
First, does the process in the ATE ordinance satisfy due process?
Second, does the ATE ordinance as actually implemented, with the notice
provided in the Notice of Violation and other documents, violate due
process?
On the question of whether the ATE ordinance on its face satisfies
due process, we think it generally does. The ATE ordinance provides for
an administrative hearing, but further provides that in lieu of an
administrative hearing, a vehicle owner may request the City issue a
municipal infraction and the vehicle owner receive a hearing in small
claims court. See Cedar Rapids, Iowa, Mun. Code § 61.138(e)(1)–(2).
9Nothing in Ghost Player, L.L.C. v. State, 880 N.W.2d 323 (Iowa 2015), is to the
contrary. In Ghost Player, the court recognized that if the legislature established a
higher standard than required by constitutional notions of due process, a party was
entitled to receive the higher legislative standard. Id. at 330 (observing that the
“legislature did not mandate a contested hearing process to review and award the tax
credits”). Such a party is entitled to the more elaborate process not because of
application of procedural due process, but because of the terms of the statute itself.
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There is no question that a hearing in small claims court satisfied due
process on the question of a minor traffic fine. The procedural due
process claim cannot focus on only a part of the process afforded under
the ordinance but must consider the entire panoply of available
procedures. See Nichols ex rel. Nichols v. DeStefano, 70 P.3d 505, 507
(Colo. App. 2002), aff’d, 84 P.3d 496 (Colo. 2004) (en banc) (per curiam);
Broadway & 67th St. Corp. v. City of New York, 475 N.Y.S.2d 1, 5 (App.
Div. 1984).
There is, however, at least one complication. The ATE ordinance
puts the burden on a vehicle owner to request a hearing in small claims
court. See Cedar Rapids, Iowa, Mun. Code § 61.138 (e)(2). Is a
requirement that a citizen take affirmative action to obtain a hearing
before a small claims court consistent with due process? We think it is.
The amount at stake is relatively small, see Sevin, 621 F. Supp. 2d at
386, and the burden of requesting a hearing is not heavy. Further, the
ordinances provide a vehicle owner with the opportunity for a prior
administrative hearing to challenge the automated traffic citation in an
informal proceeding. We do not think this combination of an
administrative hearing, with the option of a small claims hearing, violates
Mathews.
VI. Unlawful Delegation Claims.
A. Overview of Plaintiffs’ Unlawful Delegation Claims.
Plaintiffs argue that the ATE system improperly delegates governmental
authority to Gatso, a private entity. They claim that Gatso makes the
discretionary decision of which vehicle owners should be considered by
Cedar Rapids to receive potential citations. See Arem, 154 So. 3d at 365.
The plaintiffs assert that Gatso rejects up to forty percent of the images
they receive under standards that are entirely nontransparent to the
73
outside and not addressed in the ATE ordinance. The plaintiffs
characterize review of potential violations by police officers as a “cursory”
review.
Plaintiffs further assert that Cedar Rapids delegates police powers
to Gatso by authorizing the corporation to access the Nlets database to
run license plate checks on behalf of Cedar Rapids. According to the
plaintiffs, Nlets was created to serve the law enforcement community, not
private entities like Gatso.
Plaintiffs next suggest that Gatso has determined that only those
vehicles detected as traveling eleven miles per hour or more over the
speed limit by Gatso equipment should be issued citations. Plaintiffs
further claim that enforcement of this rule by Gatso requires “judgment
and discretion.”
Plaintiffs additionally attack the delegation of communications
functions from Cedar Rapids to Gatso. Gatso provides a hotline number
on each notice of violation that it issues. Gatso further operates a
website for the City that provides information related to the ordinance as
well as a payment portal. In order to contest a citation, a vehicle owner
has to send the document to Gatso’s location in Beverly, Massachusetts.
Finally, the plaintiffs attack the delegation of police powers to
hearing officers who are simply volunteers. According to the plaintiffs,
delegation of quasi-judicial functions is proscribed. See Bunger v. Iowa
High Sch. Athletic Ass’n, 197 N.W.2d 555, 560 (Iowa 1972). 10
Cedar Rapids responds by emphasizing that the activities of Gatso
are ministerial and not discretionary. For example, Cedar Rapids
10Plaintiffs also claimed that the IDOT rules and the IDOT order preempted
Cedar Rapids from engaging in its ATE program. Because we have found the IDOT
rules invalid, that claim is moot. See City of Des Moines, 911 N.W.2d at 434.
74
stresses that Cedar Rapids law enforcement officers make the final
determination regarding who is issued traffic citations. According to
Cedar Rapids, Gatso does not forward to the City images when the
license plates are not visible, when the captured image is an emergency
vehicle with lights on, and when the Nlets database search failed to
identify a vehicle owner. As a result, the screening process involves little
discretion or judgement.
With respect to the use of the Nlets database by Gatso, Cedar
Rapids points out that the only use of the database by Gatso is to match
license plates with registered vehicle owners. Such matching, according
to Cedar Rapids, does not involve a discretionary decision.
Cedar Rapids maintains that there is nothing in the record to
support plaintiffs’ claim that Gatso determined that only vehicle speeds
recorded as eleven miles per hour over the speed limit should be issued
citations. In any event, Cedar Rapids maintains there would be nothing
wrong with it implementing such a policy.
Regarding the calibration of equipment, Cedar Rapids argues that
the record shows the Cedar Rapids police department does test the
calibration at least quarterly. In any event, Cedar Rapids asserts that
the act of calibrating equipment is ministerial in nature.
Finally, with respect to the alleged delegation of power to volunteer
hearing officers, Cedar Rapids asserts that volunteer hearing officers
make no determination about whether to issue a notice of violation. And,
when the hearing officer finds in Cedar Rapids’ favor, the decision is
subject to district court review in the form of a municipal infraction.
B. Overview of Unlawful Delegation Claims. Political
accountability is at the very heart of democratic government. If
democracy is to function, it is essential that public decision-making be
75
transparent and that the public may hold officials responsible for their
actions. As a result, it is essential that governmental functions, in fact,
be executed by public officials and not an insulated private entity
undisciplined by ordinary political restraints. See Warren Cty. Bd. of
Health v. Warren Cty. Bd. of Supervisors, 654 N.W.2d 910, 913–14 (Iowa
2002) (“[A] governmental subdivision cannot delegate the right to make
decisions it has been empowered to make.”). The unlawful delegation
doctrine “expresses the fundamental concept that we are to be governed
by our duly elected representatives.” Sedlak v. Dick, 887 P.2d 1119,
1135 (Kan. 1995).
While the general nondelegation principles are clearly stated, the
law of unlawful delegation has been criticized as unprincipled. David M.
Lawrence, Private Exercise of Governmental Power, 61 Ind. L.J. 647, 694
(1986) [hereinafter Lawrence]. There is simply no consensus on the
proper approach to the question of unlawful delegation. See James M.
Rice, Note, The Private Nondelegation Doctrine: Preventing the Delegation
of Regulatory Authority to Private Parties and International Organizations,
105 Calif. L. Rev. 539, 557 (2017) [hereinafter Rice] (noting “no
consensus on a model for defining the activities that the government
must perform”).
But there are a couple principles that emerge from the caselaw.
First, it seems apparent to many observers that at least some state
courts have been more willing to closely scrutinize unlawful delegations
than federal courts. See Tex. Boll Weevil Eradication Found., Inc. v.
Lewellen, 952 S.W.2d 454, 468 (Tex. 1997) (noting that while federal
courts have generally been reluctant to use the nondelegation doctrine to
invalidate laws, state courts have not been so chary); Gary J. Greco,
Survey, Standards or Safeguards: A Survey of the Delegation Doctrine in
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the States, 8 Admin. L.J. Am. U. 567, 578 (1994) [hereinafter Greco]
(stating that “the state courts have upheld broad delegations more
reluctantly” than federal courts); Lawrence, 61 Ind. L.J. at 649 (“Private
exercise of federally delegated power is no longer a federal constitutional
issue.”).
Second, while many of the cases and authorities deal with
delegation of statutory power to administrative agencies, see, e.g., Greco,
8 Admin. L.J. Am. U. at 568; Lawrence, 61 Ind. L.J. at 664, a number of
authorities distinguish between delegation of statutory authority to an
administrative agency and delegation of authority to a private party, see
Rice, 105 Calif. L. Rev. at 545. As noted many years ago by the United
States Supreme Court in Carter v. Carter Coal Co., handing off regulatory
power to a private entity is “legislative delegation in its most obnoxious
form.” 298 U.S. 238, 311, 56 S. Ct. 855, 873 (1936). And as recently
noted by Justice Alito, “Liberty requires accountability. . . . Government
officials can wield power without owning up to the consequences. One
way the Government can regulate without accountability is by passing off
a Government operation as an independent private concern.” Dep’t of
Transp. v. Ass’n of Am. R.Rs., 575 U.S. ___, ___, 135 S. Ct. 1225, 1234
(2015) (Alito, J., concurring).
The Texas Supreme Court emphasized the distinction between
statutory delegations to administrative agencies and delegations to
private entities in Texas Boll Weevil, 952 S.W.2d at 469. As noted by the
court, delegations to private entities are particularly sensitive because
the private delegatee “may have a personal or pecuniary interest which is
inconsistent with or repugnant to the public interest to be served.” Id.
The Texas court further observed that when “public powers are
abandoned to those who are neither elected by the people, appointed by
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a public official or entity, nor employed by the government” a more
searching inquiry is required. Id. The Texas Boll Weevil court developed
an eight-factor test to determine the validity of delegations of public
authority to private agencies:
1. Are the private delegate[e]’s actions subject to
meaningful review by a state agency or other branch of state
government?
2. Are the persons affected by the private delegate[e]’s
actions adequately represented in the decisionmaking
process?
3 Is the private delegate[e]’s power limited to making
rules, or does the delegate[e] also apply the law to particular
individuals?
4. Does the private delegate[e] have a pecuniary or
other personal interest that may conflict with his or her
public functions?
5. Is the private delegate[e] empowered to define
criminal acts or impose criminal sanctions?
6. Is the delegation narrow in duration, extent, and
subject matter?
7. Does the private delegate[e] possesses special
qualifications or training for the task delegated to it?
8. Has the Legislature provided sufficient standards to
guide the private delegate[e] in its work?
Id. at 472.
Third, in addition to recognizing the potential for more aggressive
state court scrutiny of unlawful delegation than that found in the federal
courts and the distinction between delegation to other public officials
and delegation to a private entity, the cases also recognize that some
types of government functions are simply not delegable. For example,
the Secretary of Defense cannot delegate war-making authority to the
Rand Corporation, and the Attorney General cannot delegate the decision
whether to prosecute to a private attorney. See Paul R. Verkuil, Public
78
Law Limitations on Privatization of Government Functions, 84 N.C. L. Rev.
397, 425 (2006). In federal procurement, the Office of Management and
Budget’s Circular A-76 prohibits contracting of “inherently governmental”
activities, including activities that involve “[d]etermining, protecting, and
advancing economic . . . interests by . . . contract management” and
activities “[s]ignificantly affecting the life, liberty, or property of private
persons.” Id. at 438.
Our caselaw on unlawful delegation of authority is limited. Some
Iowa cases deal with the question of delegation of authority to
administrative agencies or government officials. See Gabrilson v. Flynn,
554 N.W.2d 267, 276 (Iowa 1996) (rejecting school board delegation of
authority to determine who has access to school records to school
official); Marco Dev. Corp v. City of Cedar Falls, 473 N.W.2d 41, 44 (Iowa
1991) (striking down delegation of authority to commit city to widen
street to city official); Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758,
773 (Iowa 1971) (upholding delegation of power to the Iowa Civil Rights
Commission).
However, in Bunger, we considered the delegation of rulemaking
authority by high schools to the Iowa High School Athletic Association
(IHSAA). 197 N.W.2d at 559. The IHSAA both arranged interscholastic
athletic events and had bylaws requiring schools to ban student athletes
engaging in undesirable conduct. Id. at 557–58. We held that the
delegation of authority to the IHSAA with respect to misconduct of
athletes was an unlawful delegation of school authority. Id. at 563. We
stated, “Where the act to be done involves judgment or discretion, it
cannot be delegated to an agent or committee.” Id. at 560 (quoting
Kinney v. Howard, 133 Iowa 94, 105, 110 N.W. 282, 286 (1907)); see also
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Warren Cty. Bd. of Health, 654 N.W.2d at 914 (noting “delegable acts
typically involve functions that require little judgment or discretion”).
In Bunger, we confronted the argument that a high school that did
not like the good-conduct rules of the IHSAA could simply withdraw from
the association. Id. at 561. We rejected the argument, noting that it was
important in considering unlawful delegation to look at “the realities of
the situation.” Id. We concluded that the “choice” to leave the IHSAA
was not a real choice because such departure would dramatically
undermine the competitive opportunities for high school athletes. Id.
Our approach in Bunger contrasts with the approaches of a number of
states who took a more formalistic approach to the ability of a school
district to withdraw from statewide athletic organizations. See Quimby v.
School District No. 21, 455 P.2d 1019, 1021–22 (Ariz. Ct. App. 1969);
Hebert v. Ventetuolo, 480 A.2d 403, 407 (R.I. 1984); Anderson v. S.D.
High Sch. Activities Ass’n, 247 N.W.2d 481, 484 (S.D. 1976).
We also considered an unlawful delegation problem in Gamel v.
Veterans Memorial Auditorium Commission, 272 N.W.2d 472 (Iowa 1978).
In Gamel, we considered the validity of a statute that required that the
commission members controlling the operations of the Veterans
Memorial Auditorium had to be members of certain veterans groups. Id.
at 474. We adopted the “strict rule” embraced by Justice McCormick in
his dissent in Vietnam Veterans Against the War v. Veterans Memorial
Auditorium Commission, 211 N.W.2d 333, 339 (1973) (McCormick, J.,
dissenting), namely, “that private individuals cannot be empowered to
select boards to spend public funds, no matter how well qualified they
might be.” Gamel, 272 N.W.2d at 476. We reserved the question of
whether other powers might survive scrutiny if proper safeguards or
special qualifications are present. Id. But we concluded that in light of
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the special interests involved in the power to spend public funds, those
interests require “a strict rule against any delegation of sovereign power.”
Id.
C. Caselaw Involving Unlawful Delegation Challenges and ATE
Systems. There is a small body of caselaw considering unlawful
delegation challenges to ATE systems. In Arem, a Florida appellate court
held that the delegation of initial screening of violations to a private
company was an unlawful delegation. 154 So. 3d at 365. Under the
challenged ATE system, the company first reviewed captured images and
made an initial determination of whether the image met the requirements
of the ordinance and the agreement between the contractor and the
municipality. Id. at 364–65. According to the Arem court,
For all practical purposes, it is the vendor that decides
which cases the [police officer] gets to review; it is the vendor
who initially determines who is subject to prosecution for a
red light violation; it is the vendor that obtains the
information necessary for the completion of the citation; it is
the vendor that creates the actual citation; it is the vendor
that issues the citation to the registered owner of the vehicle;
and, it is the vendor that eventually transmits the traffic
citation data to the court.
Id. at 365.
Under the circumstances, the Arem court concluded that the law
enforcement officer merely acquiesces in the vendor’s decision to issue
the citation. Id. Because Florida law only authorized law enforcement
officers, and not third party vendors, to issue traffic tickets, the court
found an unlawful delegation of authority to the third-party contractor.
Id.
A somewhat different approach was taken by another Florida
appellate court in State ex rel. City of Aventura v. Jimenez (Jimenez I),
211 So. 3d 158 (Fla. Dist. Ct. App. 2016), aff’d sub nom. Jimenez II, 246
81
So. 3d at 231. In this case, as in Arem, the plaintiff asserted that a red-
light citation generated by an ATE system was unlawful because the
vendor had unfettered discretion that exceeded the city’s statutory
authority to use an agent to review images under the applicable Florida
statute. Id. at 159–60. Unlike in Arem, the appellate court held that
there was no unlawful delegation of authority. Jimenez I, 211 So. 3d at
170.
The Jimenez I court emphasized that under Florida law, a
government entity can outsource services and use private vendors
provided the essential decisions regarding the exercise of
government power are retained by the government or
controlled by that body through the promulgation of
standards that prevent the private party from having
unfettered discretion in the exercise of government power.
Id. at 165–66. The court emphasized that the act of determining which
images established a red-light violation is a ministerial act. Id. at 166.
According to the court, “[W]hether a picture of a traffic light shows red
involves no discretionary judgment.” Id. The court went on to point out
that “the Vendor exercises no unfettered discretion when it determines
the camera misfired, the traffic light in the image displays green, or the
vehicle license plate number in the image is illegible.” Id. Further, the
court noted that the city had established guidelines related to the
determination of which images should be forwarded to the city for
potential prosecution. Id. at 167–68.
The Jimenez I court distinguished the Arem case. Id. at 168–70.
According to the court, “Arem is distinguished from the instant case
because there was a different contract, there were no standards or
guidelines promulgated by the municipality, the Vendor determined
probable cause, and the City officer merely acquiesced in the Vendor’s
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determination.” Id. at 168. The Jimenez I court proceeded to canvass
the differences between the contract in the case before it and the
contract in Arem. Id. at 168–69.
The Florida appellate court certified the question of delegation to
the Florida Supreme Court. Id. at 171; see Jimenez II, 246 So. 3d 219.
The Florida Supreme Court focused on the meaning of the term “review”
in the applicable statute. Jimenez II, 246 So. 3d at 225. According to
the court, there was no reason to believe that the Florida legislature used
the term in its most restrictive sense and that the notion of a review
necessarily involves some evaluative component. Id. at 227–28. The
court further declared that the Florida statute authorized local
government
to contract with a private third-party vendor to review and
sort information from red light cameras, in accordance with
written guidelines provided by the local government, before
sending that information to a trained traffic enforcement
officer who determines whether probable cause exists and a
citation should be issued.
Id. at 229 (emphasis added). Because the city provided the vendor with
written guidelines to use when reviewing and sorting the images, the ATE
program did not exceed the authority granted the vendor by the ATE
statute to review images. Id.
Finally, in Falkner, a federal district court found that a red-light
ATE system did not unlawfully delegate power to a private entity even
when a law enforcement officer did not approve a citation. 150
F. Supp. 3d at 982. The Falkner court noted that the relevant statutes
governing red-light enforcement provided “a thorough framework . . .,
[including] a two-layer-technician-review process, leaving no room for the
traffic compliance administrator or technicians to ‘make the law.’ ” Id.
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The court further emphasized that the private vendor had no incentives
to act on private interests in determining violations. Id. at 983.
Finally, the question of unlawful delegation was briefly addressed
in Hughes, 840 F.3d 987. In this case, the United States Court of
Appeals for the Eighth Circuit in a conclusory fashion held that the ATE
system did not involve an unlawful delegation. Id. at 997–98.
D. Factual Record on Delegation Issues. There is no dispute
that Gatso is an independent contractor providing services to the City.
Further, under its contract with the City to provide ATE services, Gatso
has earned substantial revenues. Beginning in 2010 and ending on
January 26, 2016, Gatso received over $10 million in payments from the
City.
Under the contract between the City and Gatso, Gatso was
responsible for the initial processing of “violation packages.” The
contract does not provide details regarding the processing of violation
packages by Gatso. In addition to the contract, however, the City and
Gatso agreed on business rules/processing guidelines. The business
rules/processing guidelines stated that the speed of the camera system
“will be configured 11 mph over the posted speed limit” and that
“vehicles traveling at 11 mph and over will be issued citations.”
According to Gatso, after August 29, 2014, Gatso employees
processed an event by reviewing footage from ATE camera locations and
then submitted license plate information as a query to the Nlets
database, a law enforcement tool that the City authorized Gatso to
utilize. 11 If the Nlets query generated a response of “invalid” or “private”
or returned with partial information, Gatso rejected the event and no
11Prior
to August 29, 2014, Gatso subcontracted the Nlets query services to CMA
Consulting Services, Inc., in Latham, New York.
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further action was taken. Sworn officers of the City approved or rejected
the events submitted to the City. If the City rejected an event, no notice
of violation was issued. If the City accepted an event, Gatso sent a notice
of violation to the vehicle owner.
Since August 29, 2014, 12 Gatso declared in interrogatory answers
that “the City has used the Gatso Xilium system,” which includes a
number of reasons for rejection of a potential violation. The rejection
reasons in the Gatso Xilium system cover both red-light and speed
violations. Among the Gatso Xilium rejection reasons that seem to apply
to speed violations are camera image, erroneous lane trigger, plate not
readable, dealer plate, out-of-country plate, vehicle mismatch,
owner/address information missing, vehicle information missing,
returned invalid, and weather. Although Gatso’s interrogatory answers
indicate that “the [C]ity has used the Gatso Xilium system,” the summary
judgment record does not directly establish whether the City approved
the use or whether it knew about the features of the system. All in all,
Gatso states that approximately sixty percent of the images captured at
all its ATE locations (including speed and red-light cameras) are sent to
police for potential violations.
The ATE ordinance provides that a vehicle owner can contest a
citation before a hearing officer and if the hearing officer upholds the
citation, the vehicle owner may request the City file a municipal
infraction in small claims court. Notices that are sent out by Gatso,
however, suggest that the hearing officers utilized by the City have the
power to enter orders and judgments.
12Prior to August 29, 2014, the CMA Site Violation manager system was utilized.
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E. Unlawful Delegation Challenges to Use of the Nlets
Database, Creation of a Hot Line, Assembly of Violation Packages.
We first consider whether the use of the Nlets database by Gatso as
authorized by Cedar Rapids amounts to an unlawful delegation. We
conclude that it does not. It is difficult to see how Cedar Rapids’
permission to Gatso to use the Nlets database to match drivers’ license
numbers with vehicle owners involves an exercise of judgment that might
run afoul of the nondelegation doctrine.
We come to the same conclusion regarding Gatso’s responsibility to
maintain a hotline to provide information about the ATE system. The
creation and implementation of a hotline to provide information to
persons about the ATE system does not involve an exercise of judgment
by Gatso.
We next consider the plaintiffs’ claim that the City unlawfully
delegated power to Gatso because Gatso assembled violation packages
that were forwarded to the City and Gatso was responsible for the
mailing of violation notices to vehicle owners. We conclude that Gatso’s
function in assembling violation packages is ministerial in nature. And
the sending of notices of violation occurred only after review by a City
police officer. The mere mailing of a notice approved by the City does not
involve the exercise of the kind of judgment that might amount to an
unlawful delegation. The judgment call that was involved in the
determination of who should be sent notices of violation, namely, the
decision to forward to the City only images of vehicles exceeding the
speed limit by eleven miles per hour, was approved by Cedar Rapids as
part of its business rules governing the ATE project. There was no
unlawful delegation when the City approved the specifically challenged
policy as part of its business rules governing an ATE system.
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F. Unlawful Delegation Challenge to Authority to Initiate ATE
Enforcement Action. With respect to the unlawful delegation of
authority to initiate ATE action, at least one case seems to support the
plaintiffs’ position. In Arem, a Florida appellate court decided that a
procedure similar to the one in this case in a red-light ATE system
amounted to an unlawful delegation of government power to a private
entity even though a traffic infraction enforcement officer of the city
pushed an accept button before enforcement commenced. 154 So. 3d at
361–65. The Arem court emphasized that the private vendor made an
initial determination of which photographs to forward to the city for
approval of a citation and that the city officials never received photos of
motor vehicles when the private vendor decided that an infraction did not
occur or was not supported. Id. at 365.
Yet, Jimenez I puts Arem in perspective. Jimenez I characterized
the action of identifying infractions as ministerial. 211 So. 3d at 166.
But, Jimenez I also pointed to the guidelines created by the municipality
for filtering events, called “business rules,” in which the private vendor
operated, a framework that does not appear in the summary judgment
record here. Id. at 162. While Cedar Rapids did approve “business
rules” here, they do not include any rules for filtering events.
A concerning factor is the contingency fee nature of the contract
between the City and Gatso, giving the contractor incentive to forward as
many citations as possible. Yet, here a police officer reviews each
violation package before a citation is issued.
Ultimately, we agree with Cedar Rapids. The plaintiffs claim the
ATE system automatically produces digital images of the rear of vehicles
that are detected as traveling at more than eleven miles per hour over the
speed limit. No discretion is involved in the development of these images.
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The record then shows that Gatso reviews the automatically triggered
images and filters out events where the license plate was not fully visible,
no match was generated between the license plate number and the
vehicle owner in the Nlet database, or the captured image shows an
emergency vehicle with its emergency lights on. Excluding these events
is ministerial in nature. The images sent to Cedar Rapids are then
reviewed by a Cedar Rapids law enforcement officer and approved before
Gatso sends a notice of violation to the vehicle owner. While it might
have been preferable if the initial screening decision by Gatso were
subject to a transparent regulatory framework, as in Jimenez I, 211
So. 3d 158, we do not think the lack of such a framework undermines
the ministerial character of the initial screening decisions by Gatso. We
conclude Cedar Rapids was entitled to summary judgment on the
plaintiffs’ delegation claim on this particular ground.
G. Unlawful Delegation Through Use of Volunteers. We now
turn to the question of whether Cedar Rapids’ use of recruited volunteers
as hearing officers involves an unlawful delegation of power. We
preliminarily note that while the district court in its order on summary
judgment recognized that the plaintiffs made this claim in its summary
of the plaintiffs’ claims, the district court did not enter a ruling on this
specific question. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002) (“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will
decide them on appeal.”). As a result, there is a serious question
regarding preservation.
In any event, the argument is without merit. The volunteers are
not serving in their private capacity when they act as hearing officers,
but to the extent they exercise governmental powers, they are acting on
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behalf of Cedar Rapids. Although there is no set criteria for appointment
of hearing officers, we see the situation as no different, for purposes of
unlawful delegation analysis, than when a city manager recruits citizens
to volunteer to serve on various boards and commissions of the city. In
this setting, Cedar Rapids has not delegated its powers, but has
recruited citizens to help exercise its powers. The district court did not
err in granting summary judgment to Cedar Rapids on the delegation of
power claims related to volunteer citizen hearing officers.
H. Unlawful Delegation Challenge as a Result of Calibration.
The last substantial delegation question relates to the calibration of the
ATE equipment. On this issue, the court is evenly divided. Two
members of the court (Chief Justice Cady and Justice Wiggins) join me in
concluding that the district court erred in granting summary judgment
on the unlawful delegation issue as it relates to calibration. We would
find that the moving party failed to show as a matter of law that the
calibration function did not unlawfully involve the exercise of judgment.
Three members of the court (Justices Waterman, Mansfield, and Zager)
are of the opinion that the district court properly granted summary
judgment on the issue. As a result, the district court judgment is
affirmed as a matter of law. Iowa Code § 602.4107; State v. Effler, 769
N.W.2d 880, 882–83 (Iowa 2009).
VII. Unjust Enrichment.
A. Introduction. Plaintiffs bring a claim for unjust enrichment.
Unjust enrichment is an equitable claim that arises when the plaintiff
proves that “the defendant received a benefit that in equity belongs to the
plaintiff.” Slade v. M.L.E. Inv. Co., 566 N.W.2d 503, 506 (Iowa 1997).
The elements of unjust enrichment are (1) enrichment of the defendant,
(2) at the expense of the plaintiff, (3) under circumstances that make it
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unjust for the defendant to retain the benefit. State ex. rel. Palmer v.
Unisys Corp., 637 N.W.2d 142, 154–55 (Iowa 2001).
It has often been stated that when one makes a voluntary
payment, with full knowledge of the facts, unjust enrichment will not lie.
See Lincoln Nat’l Life Ins. v. Fischer, 235 Iowa 506, 516, 17 N.W.2d 273,
278 (1945) (noting that at common law taxes voluntarily paid could not
be recovered). In jurisdictions that recognize the voluntary payment
doctrine, a mistake of fact, such as payment to a wrong party, may
prevent application of the voluntary payment doctrine, but a mistake of
law does not give rise to an unjust enrichment claim. See, e.g., Case W.
Reserve Univ. v. Friedman, 515 N.E.2d 1004, 1005 (Ohio Ct. App. 1986);
Butcher v. Ameritech Corp., 727 N.W.2d 546, 553 (Wis. Ct. App. 2006). In
addition, the voluntary payment doctrine traditionally has not applied in
cases involving fraud or duress. See, e.g., Ramirez v. Smart Corp., 863
N.E.2d 800, 808 (Ill. App. Ct. 2007); BMG Direct Mktg., Inc. v. Peake, 178
S.W.3d 763, 775 (Tex. 2005); Butcher, 727 N.W.2d at 553.
The voluntary payment doctrine has come under attack in some
quarters. See John E. Campbell & Oliver Beatty, Huch v. Charter
Communications, Inc.: Consumer Prey, Corporate Predators, and a Call
for the Death of the Voluntary Payment Doctrine Defense, 46 Val. U.
L. Rev. 501, 526–27 (2012) [hereinafter Campbell]. The Restatement
(Third) of Restitution and Unjust Enrichments cautions that it should be
applied only in the narrow circumstance of when a party pays an
obligation who knows that the ultimate risks of liability is uncertain but
elects to forgo transaction costs in the matter. See Restatement (Third)
of Restitution and Unjust Enrichment § 6, cmt. e (2011).
A number of states, while not expressly embracing abolition of the
voluntary payment rule, have sharply limited its scope. For example, the
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fraud exception to the voluntary payment doctrine has been expanded to
include “fraud or improper conduct.” See, e.g., Nat’l Enameling &
Stamping Co. v. City of St. Louis, 40 S.W.2d 593, 595 (Mo. 1931) (holding
“fraud or improper conduct” negates the voluntary payment defense);
Woodmen of the World Life Ins. Soc’y v. Am. Soc’y of Composers, Authors
& Publishers, 19 N.W.2d 540, 545 (Neb. 1945) (same); Hawkinson v.
Conniff, 334 P.2d 540, 543 (Wash. 1959) (stating jury instruction on
voluntary payment provides “improper conduct or undue advantage”
renders payment involuntary). Other cases have broadly defined duress
or coercion to include “the exploitation of a superior bargaining position
. . . when the stronger party seeks additional leverage by exploiting a
vulnerability to which the weaker party . . . is not properly subject.” City
of Scottsbluff v. Waste Connections of Neb., Inc., 809 N.W.2d 725, 744
(Neb. 2011). Such duress may even include “threats” of judicial process,
even if the defendant had a legal right to take a threatened action. Id.
Another line of cases emphasize that when transactions are unlawful, the
voluntary payment doctrine does not apply. MacDonell v. PHH Mortg.
Corp., 846 N.Y.S.2d 223, 224 (App. Div. 2007) (barring doctrine where
plaintiff asserts a statutory cause of action); Pratt v. Smart Corp., 968
S.W.2d 868, 872 (Tenn. Ct. App. 1997) (holding voluntary payment
doctrine “does not come into play in situations involving a transaction
that violates public policy”). See generally Campbell, 46 Val. U. L. Rev.
at 508; Colin E. Flora, Practitioner’s Guide to the Voluntary Payment
Doctrine, 37 S. Ill. U. L.J. 91, 107 (2012).
In State ex rel. Miller v. Vertrue, Inc., we noted that Iowa had not
embraced the voluntary payment doctrine and declined to do so in that
case. 834 N.W.2d 12, 32 (Iowa 2013). But see Meyer v. Gotsdiner, 208
Iowa 677, 681, 226 N.W. 38, 39 (1929) (describing voluntary payment
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doctrine as “well settled”). In any event, we noted in Vertrue that we
would not apply the voluntary payment doctrine in cases involving
consumer fraud. Id. at 32. We reasoned that where a violation of a
consumer fraud statute was shown, not allowing recovery for unjust
enrichment would undermine the purpose of the statute. Id. We cited
cases from other jurisdictions for the proposition that where statutory
violations were present, blocking recovery through application of the
voluntary payment doctrine would be inequitable. Id.
The question of unjust enrichment has been raised in several ATE
cases. In Hughes, the Eighth Circuit rejected the argument, apparently
on the ground that the underlying claims lacked merit and there was
therefore no reason to find unjust enrichment. 840 F.3d at 997.
Another federal court dismissed unjust enrichment as merely duplicative
of other claims. Leder, 81 F. Supp. 3d at 227–28 (rejecting unjust
enrichment as duplicative of other claims). A number of courts have
rejected unjust enrichment under the voluntary payment doctrine. Id. at
228; Ballard, 419 S.W.3d at 122; Smith, 409 S.W.3d at 420.
In two ATE cases, however, the unjust enrichment claim survived
appellate review. In Brunner v. City of Arnold, the appellate court
determined there might have been sufficient duress to avoid application
of the voluntary payment doctrine. 427 S.W.3d 201, 235–36 (Mo. Ct.
App. 2013), overruled in part on other grounds in Tupper v. City of
St. Louis, 468 S.W.3d 360, 369 n.7 (Mo. 2015) (en banc). The Brunner
court also distinguished between payment to the city and payment to the
vendor. Id. at 235. The Brunner court suggested that payment to the
vendor might be subject to unjust enrichment. Id.
Similarly, in Damon v. City of Kansas City, another Missouri
appellate court considered a case where the trial court granted a motion
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to dismiss an unjust enrichment claim in an ATE case. 419 S.W.3d 162,
194 (Mo. Ct. App. 2013). The plaintiffs alleged, among other things, that
they made payments under threat that the city would take further action
against them if they did not. Id. They alleged that the respondents knew
that their efforts were illegal. Id. Noting that the voluntary payment
doctrine was not available when the payments were made under duress,
fraud, or mistake of fact, the Missouri appellate court reversed the trial
court’s dismissal of the unjust enrichment action. Id.
B. Positions of the Parties. The plaintiffs argue that as a result
of the implementation of the unlawful ordinance, Cedar Rapids and
Gatso were unjustly enriched. The plaintiffs reject any application of the
voluntary payments doctrine, pointing out that under the facts
presented, the payments cannot be considered ”voluntary” because of
Cedar Rapids’ threats in notices to report the plaintiffs to a credit agency.
Further, the plaintiffs maintain that Iowa has never adopted the
voluntary payments doctrine.
Cedar Rapids argues that because the ATE system is not illegal, it
is not unjust for Cedar Rapids and Gatso to keep monies that they have
collected. It is also further pointed out that the monies are paid to the
City, not to Gatso. Finally, Cedar Rapids additionally points out that
plaintiffs Olson and Smith made voluntary payments and, as a result,
are not entitled to bring an unjust enrichment claim. See Meyer, 208
Iowa at 681, 226 N.W. at 39. Cedar Rapids also notes that Brooks has
not paid a fine and thus has no monetary claim against the defendants.
C. Discussion. We agree with the line of cases that provide that
when a statutory violation is alleged, the doctrine of voluntary payment
does not apply. See MacDonell, 846 N.Y.S.2d at 224; Pratt, 968 S.W.2d
at 872; see also Vertrue, 834 N.W.2d at 42–43. We have rejected all of
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the plaintiffs’ constitutional claims and the plaintiffs’ delegation
challenges except on the calibration issue upon which the court was
deadlocked. No unjust enrichment arises from these rejected claims.
However, we have reversed the district court on the issue of preemption.
Because of this changed legal landscape and because we have rejected
the voluntary payment doctrine, we vacate the district court’s judgment
on unjust enrichment and remand the matter to the district court for
further consideration in light of changed posture of the case.
VIII. Conclusion.
For the above reasons, we vacate the decision of the court of
appeals and affirm in part and reverse in part the judgment of the
district court.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF
DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Cady, C.J., and Wiggins, J., join this opinion. Zager, J., joins this
opinion except for part VI.H. Waterman, J., files a separate opinion
concurring in part and dissenting in part. Mansfield, J., files a separate
opinion concurring in part and dissenting in part in which Waterman, J.,
joins in parts I and II and Zager, J., joins in part II. Hecht, J., takes no
part.
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#16–1031, Behm v. City of Cedar Rapids
WATERMAN, Justice (concurring in part and dissenting in part).
I join most of the court’s opinion but concur only in the result for
part IV and dissent from parts V.A and VI.H. I write separately to
reiterate my call to expressly overrule Racing Ass’n of Central Iowa v.
Fitzgerald (RACI II), 675 N.W.2d 1 (Iowa 2004). 13 I dissent from the
court’s reversal of summary judgment based on preemption of the default
provision in the ordinance. In addition, I join Justice Mansfield’s dissent
concluding the City of Cedar Rapids did not unlawfully delegate to Gatso
calibration of the automated traffic enforcement (ATE) equipment.
I. RACI II Should Be Overruled.
I am unable to join part IV because it embraces RACI II, a
precedent that is plainly erroneous. The RACI II majority, purporting to
apply the federal rational basis test, held that a tax differential for land-
based and riverboat casino slot machine revenue violated the equal
protection clause of the Iowa Constitution on remand after the
unanimous United States Supreme Court held the differential did not
violate the Federal Equal Protection Clause. 675 N.W.2d at 3. The RACI
II majority thereby essentially took the position that the nine Justices of
the United States Supreme Court were irrational in applying the same
rational basis test in the same case, despite the well-settled and long-
standing tradition of judicial deference to legislative classifications.
RACI II was wrongly decided for the reasons set forth in the eloquent
separate dissents by Justices Cady and Carter. See id. at 16–17
13Icalled for overruling RACI II in Qwest Corp. v. Iowa State Board of Tax Review,
829 N.W.2d 550, 566 (Iowa 2013) (Waterman, J., concurring), and in King v. State, 818
N.W.2d 1, 43 n.28 (Iowa 2012) (Waterman, J., concurring).
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(Carter, J., dissenting); id. at 17–28 (Cady, J., dissenting); see also
Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, 110, 123 S. Ct.
2156, 2161 (2003) (reversing RACI I on federal equal protection grounds);
Racing Ass’n of Cent. Iowa v. Fitzgerald (RACI I), 648 N.W.2d 555, 563–64
(Iowa 2002) (Neuman, J., dissenting, joined by Carter and Cady, JJ.).
RACI II as a practical matter has been limited to its facts. We have
never relied on RACI II to strike down another municipal or state
legislative enactment. Yet members of this court persist in citing RACI II
for the view that courts can apply “rational basis with teeth” to declare
unconstitutional legislative enactments that do not involve fundamental
rights or a protected class. The court’s dicta today suggests that litigants
can mount evidentiary challenges to ATE ordinances or other laws and
that judges can then weigh the “evidence” to strike down a duly enacted
law as unconstitutional. In my view, that use of RACI II is
antidemocratic and contrary to basic principles of self-government. See
Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 240 (Iowa 2018)
(Waterman, J. concurring) (“We need to be cognizant of the right of
Iowans to govern themselves through laws passed by their chosen
representatives, a right recognized explicitly in article I, section 2 [of the
Iowa Constitution].”). The elected branches are accountable to voters.14
Judges, applying rational basis review to a record made by litigants,
should not override legislative policy choices and classifications as
irrational.
14The Iowa legislature is free to ban the use of ATE equipment such as speed
cameras or red-light cameras. Most Iowa cities have chosen not to implement ATE
ordinances.
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II. The Default Provision of the Ordinance Is Not in Play.
Our court errs by determining that the default provision in the
Cedar Rapids ATE ordinance requires reversal of the summary judgment
dismissing the plaintiffs’ preemption claim. That default issue was never
raised in trial court or on appeal, presumably because none of the
plaintiffs in this case were defaulted. I doubt the plaintiffs have standing
to challenge the default provision, but even assuming they do, the claim
was not preserved for appellate review. Neither the trial court nor the
court of appeals addressed the default theory, and the City was never
given the chance to respond. Our court should not be raising and
deciding the issue sua sponte. Feld v. Borkowski, 790 N.W.2d 72, 78
(Iowa 2010) (“Our obligation on appeal is to decide the case within the
framework of the issues raised by the parties. Consequently, we do no
more and no less.” (Citation omitted.)); In re S.P., 719 N.W.2d 535, 540
(Iowa 2006) (“[T]he court is prohibited from assuming the role of an
advocate.”); Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will
not speculate on the arguments [the parties] might have made and then
search for legal authority and comb the record for facts to support such
arguments.”). At a minimum, we should give the parties the opportunity
to file supplemental briefing on the default issue. This case was
submitted for argument a year ago and resubmitted this August. Our
court has had ample time to request supplemental briefing.
Why not wait for another case actually presenting claims by a
defaulted party, adversarial briefing, and a trial court ruling to review?
Our court, by freelancing without input from the parties, risks
unintended consequences and short circuits the adversary system.
The scope of today’s gratuitous decision is unclear. Will Iowa cities
now be required to go to court to collect fees and penalties routinely paid
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on demand or forwarded to collection agencies without a judgment? Will
this be an added burden on the courts and an extra cost to the citizens
who now must pay the filing fees for the court action? I do not know.
The City should have been allowed the opportunity to be heard before we
decided the issue.
Upon reaching an issue never presented to us, our court comes up
with the wrong remedy. Why invalidate the entire ordinance if only one
provision is invalid? I would apply Iowa’s well-settled law to sever and
save the rest of the ordinance. See Iowa Code § 4.12 (2018) (“If any
provision of an Act or statute or the application thereof to any person or
circumstance is held invalid, the invalidity does not affect other
provisions or applications of the Act or statute which can be given effect
without the invalid provision or application, and to this end the
provisions of the Act or statute are severable.”); Breeden v. Iowa Dep’t of
Corr., 887 N.W.2d 602, 608–09 (Iowa 2016) (reviewing severability
doctrine). Finally, the court fails to explain why these plaintiffs, who
were never defaulted, are entitled to reversal of the summary judgment
for the City on this ground.
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#16–1031, Behm v. City of Cedar Rapids
MANSFIELD, Justice (concurring in part and dissenting in part).
I generally join the court’s opinion except for parts V.A and VI.
In part V.A, I think the court’s legal analysis may have merit, but
the court is reversing summary judgment on the basis of an argument
not advanced on appeal.
I concur as to result only on part VI, except for part VI.H, where I
dissent. Because the court is equally divided as to part VI.H, it is my
understanding that the district court’s ruling here is affirmed by
operation of law.
I. The District Court’s Ruling on Preemption Should Be
Affirmed.
The district court granted summary judgment to the defendants on
the plaintiffs’ claim of state law preemption, reasoning,
The ATE [Automated Traffic Enforcement] ordinance is
not preempted because vehicle owners are merely offered an
additional forum to challenge their ATE citations. Owners
may still submit a form specified by the City to have a
municipal infraction, as opposed to ATE citation, issued and
filed with the court. Accordingly, the ATE ordinance’s
administrative hearing presents no conflict with the judicial
process. For the same reason, the ATE ordinance does not
conflict with Iowa Code section 364.22(6) and (4) because, by
providing an additional channel to challenge a traffic fine,
the ATE ordinance leaves untouched the process of
contesting a municipal infraction through a court of law.
(Citations omitted.)
On appeal, the plaintiffs challenge this ruling head-on, arguing
that every municipal infraction “must” be heard exclusively in small
claims court. Appellants’ Br. at 24 (“Using an administrative hearing
process before a volunteer citizen with no legal training is not consistent
with this language.”); id. at 25–26 (“The Ordinance permits a type of
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administrative hearing that the statute prohibits (by requiring a hearing
before a magistrate or district associate judge).”).
This argument seems to me plainly wrong. Alternative dispute
resolution mechanisms are ubiquitous these days. There is nothing
improper when a municipality supplements state law by offering another,
more efficient way for a vehicle owner to contest a traffic violation.
It is helpful to examine Rhoden v. City of Davenport, 757 N.W.2d
239 (Iowa 2008), in some detail. One of the specific preemption issues
there was whether Davenport could make civil fines for ATE violations
“payable to the City at the City’s finance department.” Id. at 241. Iowa
Code sections 364.22(6) and 602.8106 require fines for municipal
infractions to be collected by the clerk of court, who then remits ninety
percent to the city. Id. The plaintiffs argued that Davenport’s ordinance
was “inconsistent with this requirement.” Id. We held there was no
conflict between the Iowa Code sections and the Davenport ordinance,
which “require[d] only that payments for unchallenged violations, which
do not involve the court, be payable to the City’s finance department.”
Id. We emphasized that section 364.22(6) provides only that “all civil
penalties collected by the court be payable to the clerk of court and then
remitted to the city.” Id.
Thus, I read Rhoden as rejecting the plaintiffs’ exclusivity
argument. Municipalities can create other mechanisms for processing
traffic violations, even when they may deprive the State of Iowa of
revenue. Going through the court is not mandatory.
I think the majority makes a plausible showing that any such
alternative must ultimately be backstopped by a judicial municipal
infraction proceeding. That is, unless the vehicle owner has voluntarily
opted into an administrative proceeding, the municipality must file a
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municipal infraction case before it can collect from a nonpaying,
nonresponding vehicle owner. Like the majority, I question whether a
city can impose liability on a vehicle owner who does nothing.
However, while this is potentially a good argument, I don’t see it
anywhere in the plaintiffs’ briefing. See Appellants’ Br. at 23–28;
Appellants’ Reply Br. at 24–26. 15 Like my colleague Justice Waterman, I
would leave its resolution for another day. I would not reverse summary
judgment based on an argument not urged on appeal.
Perhaps this argument hasn’t been urged on appeal because it
doesn’t apply to these plaintiffs. As my colleague Justice Waterman
points out, none of these plaintiffs has been defaulted. All of them went
through the administrative process and have either paid or not paid their
fines. They have not alleged that anything happened to them after that.
In addition, even if we reach the majority’s theory in this case,
there may be defenses. If the owner didn’t pay, the owner has suffered
no damages. If the owner did pay but committed the ATE violation
anyway, how is the owner harmed? The owner paid the same fine he or
she would have had to pay anyway. These matters are open for
resolution on remand under today’s decision.
II. There Was No Unlawful Delegation.
Turning to my second area of disagreement, I do not believe it
amounts to unlawful delegation if a municipality fails to calibrate an
outside party’s ATE equipment adequately. Lack of calibration may
present other issues, but it doesn’t amount to unlawful delegation.
In my view, a municipality can use third-party contractors to
initially detect traffic violations, so long as a municipal official makes the
15I
will not quote further from the plaintiffs’ briefs, but they are available on the
www.iowacourts.gov website.
101
ultimate call whether to issue a citation or not. See Hughes v. City of
Cedar Rapids, 840 F.3d 987, 998 (8th Cir. 2016) (“[T]here is no improper
delegation (or in statutory terms, conferral) of power upon Gatso.”);
Jimenez v. State, 246 So. 3d 219, 231 (Fla. 2018) (Canady, J.,
concurring) (“[T]he critical issue is not the details of the relationship
between the local government and the vendor. Rather, the dispositive
point is that the local government conforms to the requirement that only
law enforcement officers and traffic infraction enforcement officers—
rather than employees of a vendor—may issue traffic citations.”).
A municipality “cannot delegate the right to make decisions it has
been empowered to make,” but it can “delegate its right to perform
certain acts and duties necessary to transact and carry out its powers.”
Warren Cty. Bd. of Health v. Warren Cty. Bd. of Supervisors, 654 N.W.2d
910, 914 (Iowa 2002). Put another way, so long as the municipality
makes the final decision, it can outsource “certain acts and duties.” Id.
Bunger v. Iowa High School Athletic Association, 197 N.W.2d 555
(Iowa 1972), illustrates this distinction. There the question was, “Can a
school board re-delegate its rule-making power regarding pupils to some
other organization?” Id. at 559. We said no. Id. at 560–63.
This is different. It is undisputed that Cedar Rapids set the
criteria for when Gatso should report a violation to it and then reviewed
each citation before issuing it. Cedar Rapids did not delegate authority
to issue a rule or to bring a civil or criminal charge; rather, the alleged
delegation related only to detection of potential violations.
My colleagues cite an unlawful delegation case from the Florida
Fourth District Court of Appeal pertaining to ATE enforcement. See City
of Hollywood v. Arem, 154 So. 3d 359 (Fla. Ct. App. 2014). However, that
case is no longer good law. In Jimenez, the Florida Supreme Court
102
specifically disapproved Arem while approving other Florida Court of
Appeal decisions that ruled otherwise. 246 So. 3d at 231 (majority
opinion) (“Accordingly, we answer the rephrased certified question in the
affirmative and approve the decision of the Third District in Jimenez. We
also approve the decision of the Second District in Trinh and disapprove
the decision of the Fourth District in Arem to the extent it is inconsistent
with this opinion.”). My colleagues discuss Jimenez at some length,
without ever mentioning that it expressly disapproved Arem. 16
My colleagues confuse an evidentiary issue with an unlawful
delegation issue. If Cedar Rapids did not adequately calibrate the ATE
equipment, that might be a reason not to allow a reading from that
equipment to establish a violation. However, it doesn’t present an
unlawful delegation problem. Likewise, if the police decide to use an
outside DNA testing lab for criminal investigation purposes or a K-9 to
detect drugs, that may lead to some evidentiary issues that have to be
resolved, but it isn’t an improper delegation of governmental power.
I also wonder whether our decision in City of Des Moines v. Iowa
Department of Transportation, 911 N.W.2d 431 (Iowa 2018), renders the
entire calibration issue moot. In that we case, we found the department
of transportation lacked the authority to promulgate its regulations
regarding municipal ATE systems. Id. at 449–50. This would include
the regulation requiring municipalities to calibrate ATE systems.
Plaintiffs’ argument concerning calibration is limited to a single
paragraph of its brief and is predicated on the IDOT regulation. See
Appellants’ Br. at 32.
16My colleagues give more airplay to the intermediate appellate opinion in
Jimenez (which they label Jimenez I) than to the supreme court opinion.
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For the foregoing reasons, I concur in part and dissent in part and
would affirm the entire summary judgment.
Waterman, J., joins parts I and II of this concurrence in part and
dissent in part.
Zager, J., joins part II only of this concurrence in part and dissent
in part.