REUVEN WEIZBERG, DAVID PETER VENG-PEDERSEN, JACOB PATRICK DAGEL, Appellees,
CITY OF DES MOINES, IOWA, Appellant, and GATSO USA, INC., Appellee.
from the Iowa District Court for Polk County, Lawrence P.
city appeals district court's grant of plaintiffs'
motion for summary judgment, and plaintiffs cross-appeal
grant of defendant city's motion to dismiss, defendant
company's motion for summary judgment, and the district
court's class certification.
Michelle Mackel-Wiederanders, Assistant City Attorney, Des
Moines, for appellant.
C. Larew of Larew Law Office, Iowa City, for appellees Reuven
Weizberg, David Peter Veng-Pedersen, and Jacob Patrick Dagel.
D. Burns and Laura M. Hyer of Bradley & Riley, PC, Iowa
City, for appellee Gatso USA, Inc.
companion case to Behm v. City of Cedar Rapids,
N.W.2d (Iowa 2018), and Leaf v. City of Cedar
Rapids, N.W.2d (Iowa 2018), decided today, we consider
challenges to an automated traffic enforcement (ATE) program
implemented by the City of Des Moines (the City) and its
private contractor, Gatso USA, Inc. (Gatso).
plaintiffs challenged the Des Moines ATE program on a number
of grounds. The plaintiffs claimed that the ATE program
violated equal protection, due process, and privileges and
immunities clauses of the Iowa Constitution. The plaintiffs
further argued that the ATE system was invalid because of
preemption by state and local law and unlawful delegation of
governmental duties. Because of the legal defects in the ATE
system, the plaintiffs asserted the defendants were unjustly
enriched. The plaintiffs sought class-action certification.
The plaintiffs asked for declaratory and injunctive relief as
well as damages.
City's motion to dismiss, the district court dismissed
the plaintiffs' claims based upon preemption; unlawful
delegation of governmental powers; equal protection,
substantive due process, privileges and immunities under the
Iowa Constitution; and unjust enrichment. The court refused
to grant the motion to dismiss the plaintiffs' procedural
due process claim. The court at the same time granted
Gatso's motion for summary judgment on all of the
the district court considered the remaining procedural due
process claim in the case on cross-motions for summary
judgment. The court ruled that the City's ATE system as
implemented violated procedural due process. The court also
resurrected the previously dismissed unjust enrichment claim
and ruled the City was unjustly enriched. The court certified
a class of vehicle owners who were cited for violating the
ATE ordinance, pursued an administrative challenge, but did
not request the City file a municipal infraction proceeding
in district court.
City appealed and the plaintiffs cross-appealed.
reasons stated below, on the City's appeal, we reverse
the district court's determination that the ATE system as
implemented by the City violated procedural due process.
plaintiffs' cross-appeal, we affirm the district
court's grant of the motion to dismiss on grounds of
preemption. We also affirm the district court's grant of
summary judgment to Gatso on the plaintiff's unjust
reverse, however, the district court's dismissal of the
plaintiffs' equal protection, substantive due process,
and privileges and immunities claims. We reverse the district
court's holding that there is no action for damages under
the Iowa Constitution.
light of our rulings, we vacate the district court's
order on unjust enrichment against the City and the district
court's order on class certification.
remand the case for further proceedings consistent with this
Factual and Procedural Summary.
The ATE Ordinance.
2011, the City enacted an ATE ordinance (the ordinance). Des
Moines, Iowa, Mun. Code § 114-243 (2015). The ordinance
generally recites the power of municipalities to implement
ATE systems and to hire private contractors to implement
them. Id. § 114-243(a). The ordinance provides
that although the private contractor will provide video
images to the police department for review, the police
department will determine which vehicle owners are in
violation of the City's traffic control ordinances and
therefore who will receive a notice of violation for the
to the ordinance, the City entered into a contract with
Gatso. Under the contract, Gatso agreed to install, operate,
and maintain fixed speed systems in accordance with standard
installation practices at locations the City desired. Gatso
agreed to perform maintenance of the ATE system, including
testing the camera settings and operation. The contract
further provided that Gatso prepare violation packages and
forward them to the police department for review. After
approval, Gatso agreed to send citations by mail to vehicle
owners and agreed to establish a toll-free help desk
telephone number for vehicle owners to discuss citations and
ordinance establishes civil penalties for speeding
violations. Id. § 114-243(c). The vehicle owner
is liable for the civil penalty unless the vehicle owner
shows that a stolen vehicle report was made on the vehicle
encompassing the time period in question. Id. §
person receives a traffic citation, the ordinance establishes
a procedure for disputing the citation by requesting that the
City issue a municipal infraction citation and proceed to
have the matter determined in district court. Id.
§ 114-243(d). Specifically, the ordinance provided,
(d) Penalty and appeal.
. . . .
(2) A recipient of an automated traffic citation may dispute
the citation by requesting an issuance of a municipal
infraction citation by the police department. Such request
will result in a required court appearance by the recipient
and in the scheduling of a trial before a judge or magistrate
at the Polk County Courthouse. The issuance of a municipal
infraction citation will cause the imposition of state
mandated court costs to be added to the amount of the
violation in the event of a guilty finding by the court.
(3) If a recipient of an automated traffic citation does not
pay the civil penalty by the stated due date or request a
trial before a judge or magistrate, a municipal infraction
citation will be issued to the recipient by certified mail
from the police department. Said municipal infraction
citation will result in a mandatory court appearance by the
recipient as well as imposition of state mandated court costs
if a finding of guilty is made by the court.
Id. § 114-243(d)(2)-(3).
Iowa Department of Transportation Evaluation and
utilization of ATE systems by Iowa municipalities caused the
Iowa Department of Transportation (IDOT) to promulgate rules
related to their use. Iowa Admin. Code ch. 761-144. Pursuant
to the rules, municipalities utilizing ATE systems were
required to file reports on each location with the IDOT.
Id. r. 761-144.5(1). The IDOT then analyzed the
reports to determine whether to approve the ATE systems at
the locations. Id. r. 761-144.5(3). Further,
municipalities were also required to file annual reports
evaluating the effectiveness of the ATE system on improving
traffic safety. Id. r. 761-144.7.
IDOT's 2015 evaluation of the use of equipment by the
City's ATE system at the I-235 location concluded that
the City should remove the equipment. According to the
evaluation, the location "experiences a low crash
rate" while the number of speed citations were
"extremely high." The evaluation order noted that
under the IDOT's administrative rules, 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."
Id. r. 761-144.4(1)(c).
City appealed the evaluation. On appeal, the IDOT held that
"the data does not provide convincing evidence that this
location is unsafe for motorists and law enforcement
conducting routine police work." The City continued the
operation of the ATE equipment on I-235 and along with two
other cities, filed an action challenging the authority of
IDOT to promulgate the rules. In City of Des Moines v.
Iowa Department of Transportation, we recently held that
the IDOT lacked authority to promulgate its ATE rules. 911
N.W.2d 431, 434 (Iowa 2018).
Plaintiffs Alleged ATE Violations.
Weizberg. Reuven Weizberg is a resident of New York
State. Weizberg is a musician who was in Des Moines for a
performance. Weizberg received three notices of violation
arising from events generated at the ATE system location on
I-235 in May 2015.
front page of the notices of violation received by Weizberg
provided photos of the offending vehicle and license plate
along with information regarding the date and time of the
alleged violation. The front page declares that the motor
vehicle owner is liable for payment of any penalty. The
notice of violation declares that
[f]ailure to pay the penalty or contest liability by the due
date is an admission of liability and will result in this
penalty being forwarded to collections and to the Iowa Income
Tax Offset Program or for filing in state district court.
date is provided on the front page. A box is presented
outlining options for payment online, by mail, or by phone.
There is no mention on the front page of the citation
regarding the right to request the filing of a municipal
back of the notices of violation the heading "TO CONTEST
THIS VIOLATION" appears. Under the heading, the first
sentence declares, "You have the right to contest this
violation at an administrative hearing or by mail." The
notices of violation further state, "Before contesting
your violation it is recommended that you review the local
ordinance, images and the actual recorded video of the
infraction to determine if you have a valid defense
supporting dismissal of this citation." Then, the
following language appears:
Note: If the administrative hearing does not resolve the
issue, a civil infraction (lawsuit) may be requested to be
filed in state district court and a court hearing date will
be scheduled. Additional costs including an $85.00 filing
fee, and other court costs will be assessed if you are found
liable or you pay the civil penalty before the court hearing
date. If you fail to appear for the court hearing, you will
be responsible for paying the fine and court costs. If you
are found not liable, the fees will be paid by the city.
Alternatively, you may request a civil infraction (lawsuit)
in lieu of an administrative hearing.
the section describing how to contest violations, two boxes
appear describing how to obtain an in-person administrative
hearing or, in the case of nonresidents, how to contest the
violation by mail. Inside the box describing how to obtain an
administrative hearing, it again states, "You must
request such a hearing prior to the due date specified,"
and "[f]ailure to appear at this hearing will result in
an automatic final determination of liability."
asked for and received administrative hearings by mail. In
all cases, he received a document indicating that an
administrative hearing had been held and stating, "IT IS
ORDERED" that Weizberg was liable for the civil penalty
and that a "JUDGMENT TOTAL" of $65 had been
imposed. Further, the document declares, "Failure to pay
the total amount specified . . . will result in the possible
imposition of the Iowa Income Tax Offset Program, collection
efforts and legal action."
backside of the document provides payment information. In the
lower portion of the page is a section entitled "RIGHT
OF APPEAL." Here, the document reads, "If you want
to appeal the Hearing Officer's decision, within 10 days
of the date of this ruling you may request that a civil
infraction (lawsuit) be filed against you in Polk County
District Court." Further, the document declares,
"An $85.00 filing fee and other court costs plus the
fine amount will become a judgment against you if the Court
finds you liable for the violation."
document entitled "2nd and Final Notice" that
Weizberg received for one of the events, some text on the
As you have failed to pay or contest the Notice of Violation
previously issued, the fine is now due. Failure to pay the
civil fine may subject you to formal collection procedures
and to the Iowa Income Tax Offset Program. Failure to appear
for court hearings will result in judgment being issued
against you and liens registered in Polk or Warren County.
back of the document, other text reads,
Please be advised that you have exhausted all challenge
options and this is a debt due and owing to the City of Des
Moines. Failure to pay the fine immediately will subject you
to formal collection procedures and the Iowa Income Tax
the reference to "court hearings" on the front,
this second notice contains no information about any ability
to challenge the fine, whether by administrative process or
by municipal infraction.
did not pay. No municipal infraction was filed.
Veng-Pedersen. Waukee resident David Veng-Pedersen
received one citation in May of 2015. Like Weizberg, he
received a notice of violation, requested an administrative
hearing, and was found liable. He did not pay the amount.
Dagel. Jacob Patrick Dagel was not an original
plaintiff to this proceeding, but the district court added
him as a party when it certified the class in this case. He
received a notice of violation in September 2016, requested
an administrative hearing, and was found liable. Unlike
Weizberg and Veng-Pedersen, he paid the amount.
District Court Proceedings.
Petition. Weizberg and Veng-Pedersen filed their
petition in district court on December 11, 2015. The petition
named the City and Gatso as defendants.
article I, count I of the petition, the plaintiffs sought a
declaratory judgment against the City. The plaintiffs asked
the court to declare that the ATE program "as
implemented" by the City and Gatso violated Iowa Code
section 602.6101, which provides for "exclusive,
general, and original jurisdiction" in district court of
all actions. The plaintiffs further claimed that the ATE
program, "through its use of an administrative
process," is irreconcilable with and preempted by Iowa
Code section 364.22(6), which relates to the procedures for
processing municipal infractions, and Iowa Code section
364.22(4), which requires police officers, and not a private
entity, issue civil citations.
I, count I further asked the district court to declare that
"the ATE program described herein" violated the
equal protection clause and the privileges and immunities
clause of the Iowa Constitution, article I, section 6,
because it infringed upon the fundamental right to travel.
Even if a fundamental right to travel was not involved, the
plaintiffs claimed there was no rational basis to have the
cameras where they were located. Further, the ATE program
violated equal protection and privileges and immunities
because it treated out-of-state residents differently than
petition further sought a declaratory judgment that the ATE
program "utilized by" and "as applied"
violated equal protection and privileges and immunities
through the City's use of a database, Nlets,
which excludes certain classes of license
plate numbers from the database, therefore effectively
immunizing those vehicle owners from ticketing by the system.
Further, the plaintiffs sought a declaration that the
exclusion of government-owned vehicles from the database
violated state law provisions that narrowly limit the
circumstances in which government employees are exempt from
prosecution under state traffic laws. Additionally, the
plaintiffs requested a declaratory judgment that the use of
certain technology that makes arbitrary distinctions for
vehicles without rear license plates is illegal.
petition asked for a declaration that the ATE program
utilized by the City "violates the Constitution of
Iowa" by violating IDOT's administrative rules and
regulations and the corresponding 2015 evaluation ordering
the City to remove its equipment.
petition prayed for a declaration that the ATE program
violated the due process clause of the Iowa Constitution
"due to the scheme's many failures." The
alleged due process failures included placement of cameras
without sufficient advertising to the public, placement of
cameras and radar at sites not correlated with significant
public safety issues, insufficient actual notice to cited
vehicle owners of all applicable defenses, and failure to
direct cited vehicle owners to the district court as opposed
to administrative proceedings that are neither created or
described in the City's ATE ordinance and are convened by
untrained hearing officers hired by and allied with the City.
the plaintiffs sought a declaration that the ATE program
amounted to an unlawful delegation of police power from the
City to Gatso, a privately held for-profit corporation.
article II, count I of the petition brought against the City
and Gatso, the plaintiffs requested class certification.
count II, the plaintiffs asserted an action for damages for
violations of the Iowa Constitution against both the City and
Gatso. With respect to Gatso, the plaintiffs alleged that it
"acted under the color of law" in carrying out its
responsibilities and perhaps even "help[ed] to
orchestrate" the unconstitutional ATE program. The
damages sought were the amount of penalties paid, plus
interest as allowed by law. Plaintiffs further sought costs
and attorney's fees.
count III, the plaintiffs alleged that the City and Gatso
were unjustly enriched. The plaintiffs claimed that the City
and Gatso had collected millions of dollars based upon an
unlawful ordinance. In particular, the plaintiffs alleged the
scheme was "decisively unconstitutional" since
March 17, 2015, when the IDOT determined that there was no
legitimate state interest in placing the camera at the I-235
location. Plaintiffs sought to recover fines actually paid,
plus interest, costs, and attorney's fees.
count IV, the plaintiffs sought a temporary and permanent
injunctive order preventing the operation of the ATE program.
The plaintiffs again repeated their request for damages.
City's motion to dismiss; Gatso's motion for
City quickly filed a motion to dismiss the petition. Gatso
also quickly sought dismissal but framed its ...