ROBERT P. KLEIMAN, On Behalf of Himself and All Others Similarly Situated vs. CITY OF WATERLOO, IOWA
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IN THE SUPREME COURT OF IOWA
No. 07–1855
Filed June 4, 2010
ROBERT P. KLEIMAN, On Behalf of
Himself and All Others Similarly Situated,
Appellee,
vs.
CITY OF WATERLOO, IOWA,
Appellant.
Appeal from the Iowa District Court for Black Hawk County, Jon C.
Fister, Judge.
The city appeals from a district court ruling denying its motion for
summary judgment.
DISTRICT COURT DECISION REVERSED AND
CASE REMANDED.
Ivan T. Webber and James R. Wainwright of Ahlers & Cooney, P.C.,
Des Moines, for appellant.
Terry M. Giebelstein, Thomas D. Waterman, and Richard A.
Davidson of Lane & Waterman LLP, Davenport, for appellee Kleiman.
Terrence L. Timmins, Des Moines, for amicus curiae Iowa League
of Cities.
Bruce H. Stoltze of Stoltze & Updegraff, P.C., Des Moines, and
Brad A. Schroeder of Hartung & Schroeder LLP, Des Moines, for amicus
curiae Iowa Trial Lawyers Association.
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PER CURIAM.
Appellee, Robert Kleiman, filed this class action against the
appellant, City of Waterloo, for refunds of franchise fees paid on cable
television services, claiming these fees were illegally exacted by the city.
He sought certification of the class, judgment against the city in an
amount sufficient to compensate him and the other class members for
the illegal tax and interest, attorney fees, a declaration that the franchise
fees are illegal and void, an injunction stopping the city from enforcing
the franchise fees in the future, and other proper relief.
The district
court certified the class.
The city filed a motion for summary judgment claiming Iowa Code
section 477A.7(5) (Supp. 2007) relieved it of any liability.
Kleiman
acknowledged that section 477A.7(5) prospectively legalized the city’s
franchise fees, but resisted the retroactive application of the law,
claiming it was unconstitutional under the Due Process Clauses of the
Federal and State Constitutions.
The district court concluded section
477A.7(5) was not a curative act, and held this provision violated the
plaintiffs’ due process rights because it impaired their vested rights.
Therefore, the court denied the city’s motion for summary judgment. The
city filed an application for interlocutory appeal, which we granted. 1
On appeal, the parties raise the identical issues addressed in Zaber
v. City of Dubuque, ___ N.W.2d ___ (Iowa 2010), a decision we also file
today. Upon our consideration of these issues and for the reasons set
forth in our opinion in Zaber, we hold that section 477A.7(5) does not
violate the Due Process Clause of the Fifth Amendment to the United
case was combined for appeal with Curtis v. City of Bettendorf, No. 07–
1856; Lindstrom v. City of Des Moines, No. 07–1641; and Zaber v. City of Dubuque, No.
07–1819. The clerk docketed the combined appeals under No. 07–1641.
1This
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States Constitution or the due process clause of article I, section 9 of the
Iowa Constitution.
Because the legislature has ratified the city’s past
assessment and collection of franchise fees, the plaintiffs are not entitled
to a refund of those fees.
Therefore, we reverse the decision of the
district court and remand this case to the district court for entry of
summary judgment in favor of the city.
DISTRICT
COURT
DECISION
REVERSED
AND
CASE
REMANDED.
All justices concur except Wiggins and Hecht, JJ., who dissent.
This opinion shall not be published.
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#07–1855, Kleiman v. City of Waterloo
WIGGINS, Justice (dissenting).
I dissent for the reasons stated in my dissent in Zaber v. City of
Dubuque, ___ N.W.2d ___, ___ (Iowa 2010) (Wiggins, J., dissenting).
Hecht, J., joins this dissent.
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