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Behm v. City of Cedar Rapids

Supreme Court of Iowa

January 25, 2019

MYRON DENNIS BEHM, BURTON J. BROOKS, ROBBY LEE LANGSTON, DAVID LEON BRODSKY, JEFFREY R. OLSON, and GEOFF TATE SMITH, Appellants,
v.
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.

          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.

          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. In our original opinion, we vacated the decision of the court of appeals and affirmed in part and reversed in part the judgment of the district court.

         The City filed a petition for rehearing, asserting that we relied on an incorrect version of the City's ATE ordinance in discussing the issue of preemption. We granted the City's petition and vacated our earlier opinion.

         Upon review, we find that the City's petition for rehearing is well taken. We did not rely upon the ordinance in effect at the time of the motion for summary judgment in this case but on a later version of the ordinance. We therefore decided to grant rehearing. On rehearing, we consider only those aspects of our prior opinion affected by the error.

         Upon rehearing, for the reasons below, we conclude that the district court properly granted summary judgment in this case.

         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). 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 records a speeding vehicle violation, the contractor mails a notice of violation 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)(1)-(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 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)(2); 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, 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 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-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 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)- (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 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 1st 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 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 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.

         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 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 Law Enforcement Telecommunications System database (Nlets), [1] 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 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 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');">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.

         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.

         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 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 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 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 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 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.

         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 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." 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[2]RACI II for the proposition that "the claimed state interest must be 'realistically conceivable'" and have a "basis in fact."[3] 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)).

         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 ...


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