J. Thomas Zaber, On Behalf Of Himself And All Others Similarly Situated Vs. City Of Dubuque, Iowa

IN THE SUPREME COURT OF IOWA
No. 07–1819

Filed June 4, 2010

J. THOMAS ZABER, On Behalf of Himself
and All Others Similarly Situated,

Appellant,

vs.

CITY OF DUBUQUE, IOWA,

Appellee.

Appeal from the Iowa District Court for Dubuque County, Alan L.

Pearson, Judge.

City resident appeals from a district court ruling granting the city’s

motion for partial summary judgment on plaintiff’s refund claim.

AFFIRMED AND CASE REMANDED.

Terry M. Giebelstein, Thomas D. Waterman, and Richard A.

Davidson of Lane & Waterman LLP, Davenport, for appellant.

Ivan T. Webber and James R. Wainwright of Ahlers & Cooney, P.C.,

Des Moines, for appellee.

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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TERNUS, Chief Justice.

The appellant, J. Thomas Zaber, appeals the district court’s

dismissal by summary judgment of his claim for a refund of cable

television franchise fees imposed by the appellee, City of Dubuque, in

excess of the city’s cost of regulation. The district court ruled Iowa Code

section 477A.7(5) (Supp. 2007) retroactively authorized these fees,

rejecting the plaintiff’s contention section 477A.7(5) violated his due

process rights. We affirm the district court’s judgment in favor of the

city.

I. Scope of Review.

Because this appeal arises from a ruling on a motion for summary

judgment, we preface our discussion of the facts and issues with a review

of the principles governing our examination of the district court’s ruling.

“ ‘To obtain a grant of summary judgment on some issue in an action,

the moving party must affirmatively establish the existence of

undisputed facts entitling that party to a particular result under

controlling law.’ ” Baker v. City of Iowa City, 750 N.W.2d 93, 97 (Iowa

2008) (quoting Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751,

756 (Iowa 1999)); see Iowa R. Civ. P. 1.981(3) (authorizing summary

judgment 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”). Neither

party points to any issue of material fact with respect to the application

of section 477A.7(5). Thus, the disposition of this case rests on a

determination whether the city is entitled to judgment as a matter of law

under the undisputed facts.

Whether the city is entitled to judgment as a matter of law turns

on whether section 477A.7(5), which ratifies fees imposed and collected

prior to its enactment, is a proper and constitutional exercise of
 3

legislative power. The plaintiff does not dispute that the legislature’s

intent in enacting this provision was to retroactively authorize illegal

franchise fees already assessed by municipalities and paid by their

residents. Rather, he claims the legislature’s action violates his due

process rights. We consider the plaintiff’s constitutional claim de novo.

Varnum v. Brien, 763 N.W.2d 862, 874 (Iowa 2009).

II. Background Facts and Proceedings.

The plaintiff, Thomas Zaber, sued the City of Dubuque on

September 5, 2006, claiming the city had collected an illegal tax from

him and others similarly situated in the form of franchise fees for gas

and electric utilities and for cable television services in excess of the

reasonable cost of regulating these industries. 1 Zaber sought a refund of

the illegal taxes based on this court’s decision in Kragnes v. City of

Des Moines, 714 N.W.2d 632 (Iowa 2006). In that case, we held franchise

fees assessed by the City of Des Moines on gas and electric power

services constituted an illegal tax to the extent such fees exceeded the

reasonable costs of regulating the franchised activity. Kragnes, 714

N.W.2d at 642–43.

The City of Dubuque filed a motion for partial summary judgment,
requesting dismissal of the plaintiff’s claim for the refund of franchise

fees paid for cable television services. This motion rested on the General

Assembly’s enactment of Iowa Code section 477A.7, which authorized

franchise fees on cable television services in excess of the cost of

regulation, including fees “assessed by and paid to a municipality prior

to May 29, 2007[, the effective date of the act].” Iowa Code § 477A.7(4),

1This case was certified as a class action pursuant to Iowa Rule of Civil
Procedure 1.262(1). Nonetheless, we will refer to the plaintiff in his individual capacity
for the sake of simplicity.
 4

(5); see 2007 Iowa Acts ch. 201, § 15 (providing the act, “being deemed of

immediate importance, takes effect upon enactment,” May 29, 2007).

The plaintiff resisted this motion on the ground the retroactive aspect of

the statute violated his due process rights in two ways: (1) it deprived

the plaintiff of an accrued refund claim, and (2) the period of retroactivity

exceeded the “modest” period constitutionally permitted.

The district court granted the city’s motion for partial summary

judgment on the plaintiff’s refund claim for cable television fees. It

concluded the retroactive provision in the statute was curative legislation

that bore a rational relationship to a legitimate governmental purpose,

namely, preserving “the revenue cities need to carry out their lawful

functions.” The district court rejected the plaintiff’s due process

challenge, ruling retroactive authorization of taxes already collected or

assessed was constitutionally permissible and “need not be limited to one

year or the previous legislative session,” as the plaintiff contended.

The plaintiff filed an application for interlocutory appeal, which

this court granted. 2 On appeal, the plaintiff claims the legislature’s

retroactive authorization of franchise fees in excess of the cost of

regulation violates his rights to substantive due process for two reasons.
First, it takes away his accrued right to a refund of illegal taxes assessed

and collected by the city. Second, the period of retroactivity exceeds the

modest period that is constitutionally allowed. To put these issues in

context, we first review the events leading up to the enactment of section

477A.7(5).

2This case was consolidated for appeal with Curtis v. City of Bettendorf, No. 07–

1856; Kleiman v. City of Waterloo, No. 07-1855; and Lindstrom v. City of Des Moines, No.
07–1641. The clerk docketed the combined appeal under No. 07–1641. We have issued
separate opinions in these cases.
 5

III. Enactment of Iowa Code Section 477A.7(5).

As noted above, in Kragnes, this court examined a municipality’s

power to charge fees for gas and electric services in excess of the cost of

regulating those activities. 714 N.W.2d at 637–43. We held:

Our decisions reveal that even after the adoption of the
home-rule amendment and the enactment of the Home Rule
for Cities bill, we have continued to adhere to the position
that a fee imposed by a city needs to be related to the
reasonable costs of inspecting, licensing, supervising, or
otherwise regulating the activity in order to be permitted
under a city's home-rule authority. If a fee charged by a city
exceeds the amount necessary to inspect, license, supervise,
or otherwise regulate the activity, it is nothing more than a
tax levy, which the legislature has strictly prohibited.

Id. at 641. We concluded that, to the extent the franchise fees charged

by the defendant city exceeded its cost of regulation, the fees constituted

an illegal tax. Id. at 642–43. In the wake of this decision, several

lawsuits, including the present case, were filed by residents of various

Iowa cities, claiming a five percent franchise fee for cable television

services charged by the defendant cities was an illegal tax and should be

refunded. See Lindstrom v. City of Des Moines, 470 F. Supp. 2d 1002,

1004–05 (S.D. Iowa 2007). 3
While these actions were pending, the Iowa General Assembly

enacted a law relating to franchise fees for cable television services. See

2007 Iowa Acts ch. 201. The following provisions of this act are

pertinent to our discussion:

4. A franchise fee may be assessed or imposed by a
municipality without regard to the municipality’s cost of
inspecting, supervising, or otherwise regulating the
franchise, and the fees collected may be credited to the

3Seven cases filed in state court seeking refunds of illegal “franchise fees” were

removed to federal court, where they were consolidated. See Lindstrom, 470
F. Supp. 2d at 1004 n.1. Eventually, all seven cases, including the present case, were
remanded back to state court for lack of federal court jurisdiction. Id. at 1013.
 6
municipality’s general fund and used for municipal general
fund purposes.
5. To the extent that any amount of franchise fees
assessed by and paid to a municipality prior to the effective
date of this Act, pursuant to a franchise agreement between
a municipality and any person to erect, maintain, and
operate plants and systems for cable television, exceeds the
municipality’s reasonable costs of inspecting, supervising or
otherwise regulating the franchise, such amount is deemed
and declared to be authorized and legally assessed by and
paid to the municipality.

Id. ch. 201, § 8(4), (5) (emphasis added) (codified at Iowa Code

§ 477A.7(4), (5)). It is clear from the timing of the enactment and the

language used in the statute that the legislature intended section

477A.7(5) to validate any municipality’s collection of fees on cable

television services in excess of the reasonable costs of inspecting,

supervising, or otherwise regulating the franchise, regardless of when the

fees were assessed and paid.

The district court relied on the legislature’s authorization of past

fees in subsection (5) in granting the city’s motion for partial summary

judgment. It is the constitutionality of this retroactivity provision that

lies at the heart of this appeal.

IV. Nature of Issue Presented.

Before we address the constitutionality of section 477A.7(5), we

emphasize the issue presented involves taxes that were not authorized at

the time they were exacted by the municipalities, 4 but which could have

been authorized by the state. See Iowa Const. art. III, § 38A (“Municipal

corporations are granted home rule power and authority . . . except that

they shall not have power to levy any tax unless expressly authorized by

4As this case is before the court on interlocutory appeal, there has yet to be a
final determination on the validity of the franchise fees assessed and collected by the
municipality. For purposes of our review of the city’s motion for partial summary
judgment, however, we assume the five percent franchise fee exceeded the cost of
regulation and so, as to such excess, was not authorized.
 7

the general assembly.” (Emphasis added.)). Therefore, we are not faced

with a situation in which the legislature attempted to ratify or cure a tax

that it lacked the underlying power to authorize. As we held in Kragnes,

the defect in the city’s imposition of a tax on cable television services was

simply its lack of legislative authority to do so. See Kragnes, 714 N.W.2d

at 641 (declaring similar charge on gas and electric services to be an

unauthorized and illegal tax). Consequently, this case involves not the

collection of taxes that government for constitutional reasons lacks the

power to impose in some or all instances, but instead involves local taxes

that the state has the power to authorize. In other words, this case and

others like it do not involve battles between taxpayers and municipalities

regarding the inherent power of government to tax. Instead, the real

conflict in this case is between the city and state government as reflected

in legislation regarding the authority of municipalities to impose certain

fees.

In the end, the fundamental issue presented is whether the state

as principal could exercise its power to ratify the unauthorized, but

otherwise constitutional, acts of its political subdivisions. We turn now

to a review of the principles that control our resolution of this issue.
V. General Principles Governing Substantive Due Process
Claims.
To the extent that legislation is made retroactive, it is not

inherently unconstitutional. As this court has noted with respect to

retroactive laws in general, “ ‘In the absence of an express constitutional

inhibition retrospective laws are not prohibited as such.’ ” State ex rel.

Turner v. Limbrecht, 246 N.W.2d 330, 334 (Iowa 1976) (quoting 73

Am. Jur. 2d Statutes § 347, at 485–86), overruled on other grounds by

State ex rel. Miller v. Hydro Mag, Ltd., 436 N.W.2d 617, 622 (Iowa 1989);
 8

accord 2 Norman J. Singer & J.D. Shambie Singer, Statutes and

Statutory Construction § 41:3, at 398 (7th ed. 2009) [hereinafter Singer on

Statutory Construction] (“The fact that a statute is retroactive is not

sufficient by itself to invalidate it.”). The “express constitutional

inhibition” claimed by the plaintiff in this case is the Due Process Clause.

The plaintiff asserts the Due Process Clause is violated because the

legislature’s ratification of the franchise fee deprives cable subscribers of

a vested right to a refund of the illegally imposed fees, and the five-and-

one-half-year period of retroactivity exceeds that which is constitutionally

permitted. 5 These arguments implicate substantive due process. 6 See

State ex rel. Miller v. Smokers Warehouse Corp., 737 N.W.2d 107, 111

(Iowa 2007) (concluding defendants asserted substantive due process

claim because “they do not discuss any notice or hearing deficiencies”).

Generally speaking, “[s]ubstantive due process principles preclude

the government ‘from engaging in conduct that “shocks the conscience,”

or interferes with rights “implicit in the concept of ordered liberty.” ’ ”

Atwood v. Vilsack, 725 N.W.2d 641, 647 (Iowa 2006) (considering state

due process claim) (quoting United States v. Salerno, 481 U.S. 739, 746,

107 S. Ct. 2095, 2101, 95 L. Ed. 2d 697, 708 (1987)); see also
Blumenthal Inv. Trusts v. City of W. Des Moines, 636 N.W.2d 255, 265

(Iowa 2001) (noting it “is not easy to prove” a substantive due process

5The parties agree the plaintiff’s refund claims are governed by a five-year

statute of limitations. See Iowa Code § 614.1(4) (2005).
6The plaintiff relies on both the Federal Constitution and our state constitution.

See U.S. Const. amend. V; Iowa Const. art. I, § 9. The plaintiff does not suggest we
should employ a different standard under the Iowa Constitution than we use for its
federal counterpart. Although we make no distinction in our discussion of the plaintiff’s
due process argument between the state and federal constitutional claims, we preserve
our exclusive prerogative to determine the constitutionality of an Iowa statute
challenged under the Iowa Constitution. Callender v. Skiles, 591 N.W.2d 182, 187
(Iowa 1999).
 9

violation because “ ‘substantive due process is reserved for the most

egregious governmental abuses against liberty or property rights’ ”

(quoting Rivkin v. Dover Twp. Rent Leveling Bd., 671 A.2d 567, 574–75

(N.J. 1996))).

A substantive due process analysis begins with an
identification of the nature of the right at issue, as that
determines the test to be applied. . . . When . . . a
fundamental right is not involved, the Due Process Clause
“demands no more than a ‘reasonable fit’ between
government[al] purpose . . . and the means chosen to
advance that purpose.”

Smokers Warehouse Corp., 737 N.W.2d at 111 (citation omitted) (quoting

Reno v. Flores, 507 U.S. 292, 305, 113 S. Ct. 1439, 1448–49, 123

L. Ed. 2d 1, 18 (1993)).

As noted earlier, the plaintiff claims he was deprived of his right to

a refund of fees imposed in excess of the city’s authority. The plaintiff’s

right to a refund is not a fundamental right, and therefore, there need

only be a “reasonable fit” between the legislature’s purpose in ratifying

the past imposition of franchise fees and the means chosen to advance

that purpose. See Home Builders Ass’n of Greater Des Moines v. City of

W. Des Moines, 644 N.W.2d 339, 353 (Iowa 2002) (holding imposition of
unauthorized fee did not infringe on a fundamental right, so rational-

basis test applied). Additionally, we must presume the 2007 enactment

is constitutional. Smokers Warehouse Corp., 737 N.W.2d at 111. This

deferential standard is particularly appropriate when we consider the

constitutionality of economic legislation. Fed. Land Bank of Omaha v.

Arnold, 426 N.W.2d 153, 156 (Iowa 1988). Moreover, the “strong

deference” accorded economic legislation “is no less applicable when that

legislation is applied retroactively.” Pension Benefit Guar. Corp. v. R.A.

Gray & Co., 467 U.S. 717, 729, 104 S. Ct. 2709, 2717, 81 L. Ed. 2d 601,
 10

611 (1984), superseded by statute on other grounds as stated in Orrego v.

833 W. Buena Joint Venture, 943 F.2d 730, 735 n.7 (7th Cir. 1991). It is

the plaintiff’s burden to prove the legislature’s act is unconstitutional by

negating “ ‘every reasonable basis upon which the [act] may be

sustained.’ ” Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 793 (Iowa

1994) (quoting Kent v. Polk County Bd. of Supervisors, 391 N.W.2d 220,

225 (Iowa 1986)).

VI. Classification of Legislation as Curative.

As noted above, the district court decided section 477A.7(5) was a

curative act that could constitutionally be applied retroactively. The

plaintiff claims this preliminary determination by the district court was

wrong, leading the court to the erroneous conclusion that the statute

could be applied retroactively to extinguish his claim to a refund. We

think the district court correctly classified the provision at issue as a

curative act.

One type of curative act is a statute passed “to validate legal

proceedings” or “acts of public . . . administrative authorities.” Singer on

Statutory Construction § 41:11, at 503. In line with this general principle,

our court has long recognized the legislature’s power to cure defects in

acts by local government that are undertaken without authority or

without compliance with the requirements for exercising authority. See,

e.g., Schwarzkopf v. Sac County Bd. of Supervisors, 341 N.W.2d 1, 4–5, 8

(Iowa 1983); City of Muscatine v. Waters, 251 N.W.2d 544, 548–50 (Iowa

1977), superseded by statute on other grounds as stated in City of

Des Moines v. City Dev. Bd., 473 N.W.2d 197, 199 (Iowa 1991); Cook v.

Hannah, 230 Iowa 249, 253–59, 261, 297 N.W. 262, 264–67, 269, cert.

denied, 314 U.S. 691 (1941); Chicago, R.I. & P. Ry. v. Rosenbaum, 212

Iowa 227, 229–34, 238, 231 N.W. 646, 647–49, 651 (1930); Windsor v.
 11

City of Des Moines, 110 Iowa 175, 179–80, 81 N.W. 476, 477 (1900);

Chicago, R.I. & P. Ry. v. Indep. Dist. of Avoca, 99 Iowa 556, 561–62, 68

N.W. 881, 882 (1896); The Iowa R.R. Land Co. v. Soper, 39 Iowa 112,

116–24 (1874); Boardman v. Beckwith, 18 Iowa 292, 294–95 (1865).

Although the plaintiff contends the legislature can only validate a

defective exercise of power and cannot supply authority that did not exist

at the time it was exercised, he is mistaken.

One of our earliest cases dealing with curative tax legislation is

Boardman v. Beckwith, 18 Iowa 292 (1865). In Boardman, the legislature

repealed the provisions of a law that allowed a county to levy and assess

property taxes for the year of 1858. 18 Iowa at 293–94. During the next

legislative session in 1860, the legislature passed a law to enforce

delinquent taxes from 1858 that the county assessed and levied in 1858.

Id. at 294. This court held the 1860 law was a curative act legalizing the

taxes assessed and levied by the county in 1858. Id. at 294–95.

Another decision dealing with the same issue is The Iowa Railroad

Land Co. v. Soper, 39 Iowa 112 (1874). In 1873 our court held a tax

levied by Sac County for the purpose of paying a judgment rendered

against the county was illegal. Soper, 39 Iowa at 114. Shortly after this

decision, the legislature passed a bill legalizing the judgment taxes levied

by the county in 1873. Id. at 114–15. A taxpayer challenged the tax,

claiming the legislature did not have the authority to legalize the

judgment tax. Id. at 118. In response to the taxpayer’s claim, we stated:

[T]he General Assembly possesses the power to cure and
render legal and valid, by subsequent laws, defective or
irregular proceedings, wherever it would have the power to
authorize such proceedings in the first instance. Since,
therefore, it is within the proper scope of legislative authority
to pass general laws for the assessment and collection of
taxes, the passage of a general law curing and legalizing the
levy and collection of taxes irregularly or illegally levied, is
 12
also an exercise of legislative authority as essentially as is
the passage of an original act authorizing the taxation.

Id. at 124. In reaching this conclusion, our court did not make a
distinction between legislation that attempts to cure the acts of officers

void for informality or mistake and legislation that seeks to legalize

official acts void for want of authority. Such a distinction is not

recognized in this state. Id.

In cases decided after Soper, we have continued to uphold curative

acts ratifying taxes that had been imposed without authority. E.g., Cook,

230 Iowa at 261, 297 N.W. at 269; Rosenbaum, 212 Iowa at 238, 231

N.W. at 651. Therefore, under Iowa law, so long as the legislature had

the power to confer authority on the local public body to so act, it has the

power to cure or ratify the local body’s act exercised without the requisite

authority. 7 See Singer on Statutory Construction § 41:11, at 504 (stating
“a curative act may validate any past action which the legislature might

have authorized beforehand”); id. § 41:15, at 514 (stating “legislative and

administrative actions of . . . cities . . . may be validated by properly

enacted curative statutes”).

The present case clearly falls within this well-settled law. Under
the Iowa Constitution, “[m]unicipal corporations are granted home rule

power and authority . . . except that they shall not have power to levy

any tax unless expressly authorized by the general assembly.” Iowa

Const. art. III, § 38A (emphasis added). Here, the local body––the City of

Dubuque––imposed a tax on cable television services that it had no

7The legislative act considered in City of Modesto v. National Med, Inc., 27 Cal.
Rptr. 3d 215 (Ct. App. 2005), can be helpfully contrasted. In that case the court held a
municipal tax that violated due process and equal protection concepts in the state
constitution could not be cured. City of Modesto, 27 Cal. Rptr. 3d at 223. This tax is
an example of one that the government had no power to impose under any
circumstances because its flaw was its discriminatory effect, not a simple absence of
taxing authority by the taxing body.
 13

authority to impose. See Kragnes, 714 N.W.2d at 641, 643 (declaring

similar charge to be an unauthorized and illegal tax). In the next

legislative session, the legislature cured the lack of authority to collect

such a tax by enacting section 477A.7(5) and by ratifying the taxes that

had been previously assessed and paid. Because the legislature had the

power to authorize this tax prior to May 29, 2007, it also had the power

to validate unauthorized taxes imposed prior to this date. Therefore,

section 477A.7(5) is properly classified as a curative act. See State ex rel.

Van Emmerik v. Janklow, 304 N.W.2d 700, 703 (S.D. 1981) (holding

legislative act ratifying unauthorized collection of tax overcharge was a

curative act).
VII. Distinction Between Ratification of Past Tax and
Retroactive Imposition of New Tax.
Before we discuss whether section 477A.7(5) violates principles of

substantive due process, it is helpful to understand the distinction

between legislative ratification of a tax that has been previously assessed

and collected, i.e., curative legislation, and legislation that imposes a new

tax or liability on past transactions. The plaintiff relies on cases in the

latter category, which involve fundamentally different considerations

than those applicable to curative acts, as we will explain in more detail

later in our opinion.

The plaintiff claims the “leading modern case on a due process

challenge to retroactive tax legislation” is United States v. Carlton, 512

U.S. 26, 114 S. Ct. 2018, 129 L. Ed. 2d 22 (1994). While that statement

may be true, it is also true that the legislation at issue in the case before

us is not a retroactive tax statute like the one considered in Carlton. The

Iowa legislature did not impose a tax on cable television services; it

ratified a tax that cities had previously assessed. A tax statute imposing
 14

a new tax, such as the one in Carlton, is fundamentally different than

curative legislation ratifying or authorizing a tax that has already been

imposed and collected, both in purpose and in its impact on taxpayers.8

To demonstrate this distinction, we begin with an examination of the

Carlton decision.

The taxpayer’s claim in Carlton was based on changes made by

Congress to the federal estate tax statute. 512 U.S. at 27, 114 S. Ct. at

2020, 129 L. Ed. 2d at 26. In 1986, Congress adopted an estate tax

deduction for the proceeds of sales of stock to employee stock-ownership

plans. Id. In 1987, Congress amended this deduction to close a

loophole, limiting its availability to decedents who directly owned the

securities that were sold immediately before death. Id. at 29, 114 S. Ct.

at 2021, 129 L. Ed. 2d at 27. Congress made this amendment

retroactive, as if the limitation had been included in the original 1986

8Notwithstanding the distinctions between curative legislation and retroactive
tax legislation, the test applied to retroactive tax legislation is the same as that applied
to curative legislation, i.e., the test “generally applicable to retroactive economic
legislation”:
The due process standard to be applied to tax statutes with retroactive
effect, therefore, is the same as that generally applicable to retroactive
economic legislation:
“Provided that the retroactive application of a statute is supported
by a legitimate legislative purpose furthered by a rational means,
judgments about the wisdom of such legislation remain within the
exclusive province of the legislative and executive branches. . . .
“To be sure, . . . retroactive legislation does have to meet a burden
not faced by legislation that has only future effects. . . . ‘The retroactive
aspects of legislation, as well as the prospective aspects, must meet the
test of due process, and the justifications for the latter may not suffice
for the former’ . . . . But that burden is met simply by showing that the
retroactive application of the legislation is itself justified by a rational
legislative purpose.”
Carlton, 512 U.S. at 30–31, 114 S. Ct. at 2022, 129 L. Ed. 2d at 28 (emphasis added)
(quoting Pension Benefit Guar. Corp., 467 U.S. at 729–30, 104 S. Ct. at 2717–18, 81
L. Ed. 2d at 611).
 15

provision. Id. The impact of this law was that past transactions were

now subjected to a greater tax than they were at the time the

transactions occurred. In determining whether the retroactive aspect of

the 1987 estate tax amendment met the requirements of due process, the

Carlton Court noted the purpose of Congress was reasonable––to avoid “a

significant and unanticipated revenue loss . . . by denying the deduction

to those who had made purely tax-motivated stock transfers”––and the

one-year period of retroactivity was “modest.” Id. at 32, 114 S. Ct. at

2023, 129 L. Ed. 2d at 29. The Court concluded the retroactive

application of the tax statute was “rationally related to a legitimate

legislative purpose” and, therefore, was “consistent with the Due Process

Clause.” Id. at 35, 114 S. Ct. at 2024, 129 L. Ed. 2d at 31.

Contrary to the plaintiff’s assertion in his brief, the statute

considered in Carlton was not a curative act. The plaintiff cites to the

Court’s statement that the statute challenged in that case “was adopted

as a curative measure.” Id. at 31, 114 S. Ct. at 2022, 129 L. Ed. 2d at

28. It would be inaccurate to construe this comment as an indication

that the tax statute considered in Carlton was considered a “curative act”

as that term is specially defined under the law. In concluding its

discussion of the nature of the statute at issue in Carlton, the Court

observed that “Congress acted to correct what it reasonably viewed as a

mistake in the original 1986 provision that would have created a

significant and unanticipated revenue loss.” Id. at 31–32, 114 S. Ct. at

2022–23, 129 L. Ed. 2d at 29. Justice O’Connor, in her concurring

opinion, noted the majority’s discussion of Congress’s “subjective

motivation,” and observed:

Every law touching on an area in which Congress has
previously legislated can be said to serve the legislative
purpose of fixing a perceived problem with the prior state of
 16
affairs––there is no reason to pass a new law, after all, if the
legislators are satisfied with the old one.

Id. at 36, 114 S. Ct. at 2025, 129 L. Ed. 2d at 32 (O’Connor, J.,
concurring). Thus, the comment in Carlton with respect to the curative

nature of the statute was really a reference to Congress’s purpose in

enacting the statute––the correction of an unanticipated problem in the

original legislation, not whether the statute was classified as a curative

act for purposes of retroactivity analysis. See Mont. Rail Link, Inc. v.

United States, 873 F. Supp. 1415, 1421 (D. Mont. 1994) (stating, in

reference to this discussion in Carlton, “the real issue identified by the

Court and addressed in that discussion is whether the retroactive effect

is supported by a legitimate purpose and furthered by rational means”),

aff’d, 76 F.3d 991 (9th Cir. 1996).

A review of legal authorities considering when an act is curative

confirms the conclusion that the tax statute at issue in Carlton was not a

curative act. The question of when an act is “curative” for purposes of

retroactivity analysis is addressed in Singers’ noted treatise on statutes

and statutory construction, which states in its discussion of retroactivity:

A curative act is a statute passed to cure defects in
prior law, or to validate legal proceedings, instruments, or
acts of public or private administrative authorities. In the
absence of such an act the statute would be void for want of
conformity with existing legal requirements.

Singer on Statutory Construction § 41:11, at 503 (emphasis added); accord

Schwarzkopf, 341 N.W.2d at 4; Waters, 251 N.W.2d at 548. In Carlton,

there was no defect in the original statute that would render it void.

Congress simply realized in retrospect that the deduction it enacted in

1986 was too broad.

Our court recently recognized such a distinction––between the

purpose of a legislative act and its classification for purposes of
 17

considering its retroactivity––in Anderson Financial Services, LLC v.

Miller, 769 N.W.2d 575 (Iowa 2009). In Anderson Financial, the attorney

general claimed an amendment to a credit statute was remedial in nature

and, therefore, applied retroactively under the presumption that remedial

statutes are presumed to have retrospective operation. 769 N.W.2d at

579–80. We rejected this argument, stating:

While the purpose of the law may be characterized as an
effort to “remedy” an unintended gap in the statutory
prohibition of usurious interest rates, the statute is not
remedial in the sense contemplated by the rule that remedial
statutes are presumed to apply retroactively. . . .
....
. . . It would not be an exaggeration to suggest that the
legislature nearly always has in mind some problem that it
seeks to address in a legislative enactment. So, if a mere
legislative purpose to remedy a perceived defect in the law
made a statute remedial, very few statutes would not fall
within this classification.

Id. at 580 & n.4.

The same distinction is appropriate when considering the

applicability of Carlton and similar cases cited by the plaintiff. Clearly,

Congress’s purpose in enacting the 1987 amendment to the estate tax

deduction at issue in Carlton was to remedy a perceived defect in the

breadth of the deduction, but that is not the type of defect that is

contemplated in classifying legislation as “curative” for purposes of

retroactivity analysis. The type of defect addressed by a curative act, as

defined for purposes of retroactivity analysis, is a failure of the prior

legislation to conform to existing legal requirements. That was not the

type of legislation involved in Carlton. In Carlton, Congress changed the

law that applied to past transactions; it did not ratify a law that had

already been applied to transactions when they occurred, as is the case
 18

here. Thus, the amendment at issue in Carlton was not a “curative” act,

as that term of art is used in the context of retroactivity.

In summary, Carlton and like cases cited by the plaintiff address

the retroactivity of a new tax––one that is being assessed and collected

after enactment of the new statute, i.e., the tax is imposed after the event

being taxed has occurred. 9 That is not what we have in the present case.

Here the legislature did not enact a new tax; it ratified a prior tax that

had been assessed and collected for many years before the legislature’s

authorization of the tax. This distinction is one that makes a difference in

retroactivity analysis. As our later discussion will illustrate, the purpose

of curative, ratifying legislation is sufficient to justify longer periods of

retroactivity in contrast to the so-called modest period of retroactivity

accorded the imposition of a new tax.

VIII. Application of Substantive Due Process Test.

We turn now to the application of the substantive due process test

identified earlier in our opinion. As we have observed, due process

9The cases cited by the plaintiff in support of his position, including the Iowa

cases, involve tax statutes (statutes imposing a new tax), not curative acts (acts
authorizing a previously imposed tax). See, e.g., United States v. Hemme, 476 U.S. 558,
106 S. Ct. 2071, 90 L. Ed. 2d 538 (1986) (considering application of law that
established unified credit for lifetime and testamentary gifts to gifts made prior to
enactment); United States v. Hudson, 299 U.S. 498, 57 S. Ct. 309, 81 L. Ed. 370 (1937)
(considering application of tax on transfers of interest in silver bullion to transfers made
before the adoption of the tax); Nichols v. Coolidge, 274 U.S. 531, 47 S. Ct. 710, 71 L.
Ed. 1184 (1927) (considering imposition of an estate tax on transfers that predated
imposition of tax); Shell Oil Co. v. Bair, 417 N.W.2d 425 (Iowa 1987) (considering
application of statute disallowing a deduction to transaction occurring prior to adoption
of statute, citing another tax statute case, Welch v. Henry, 305 U.S. 134, 59 S. Ct. 121,
83 L. Ed. 87 (1938), which considered statute imposing an income tax on corporate
dividends that had been received prior to adoption of tax); City Nat’l Bank of Clinton v.
Iowa State Tax Comm’n, 251 Iowa 603, 102 N.W.2d 381 (1960) (considering application
of tax law to transaction that occurred prior to enactment of law, citing Welch, 305 U.S.
134, 59 S. Ct. 121, 83 L. Ed. 87). Therefore, these cases are distinguishable from the
present case, just as Carlton is, because the purpose of the tax statute considered in
these cases is not the same as the purpose of curative legislation, such as that at issue
in the case before us.
 19

requirements are satisfied “simply by showing that the retroactive

application of the legislation is itself justified by a rational legislative

purpose.” Pension Benefit Guar. Corp., 467 U.S. at 729, 104 S. Ct. at

2718, 81 L. Ed. 2d at 611. Here, the legislature’s purpose in ratifying

cities’ past imposition and collection of franchise fees in excess of their

regulatory costs was protection of the cities’ financial condition. The

legislature wanted to ensure cities could retain the franchise fees/illegal

taxes they had previously collected, thereby avoiding economic hardship

to the cities, their taxpayers, and the public who rely on city services if

the cities were required to refund these fees. Given that cities had used

the fees they had already collected for public expenditures, the

legislature acted to avoid a situation in which cities would have to refund

monies they had already spent.

This purpose––to protect the financial stability of local

municipalities––is entirely consistent with “the positive policy . . . served

by curative legislation, to sustain the reliability of official actions and

secure expectations formed in reliance thereon.” Singer on Statutory

Construction § 41:11, at 506; see also id. § 41:17, at 521 (noting curative

legislation as to tax matters is necessary “in order to safeguard the

public treasury against erosion of revenues”). As one court has noted in

denying a refund to taxpayers who had paid unauthorized county fees,

later validated by the legislature, “If there are ‘settled expectations’ in

this case, they are the County’s, not the taxpayers.” King v. Campbell

County, 217 S.W.3d 862, 870 (Ky. Ct. App. 2006), review denied, (Ky.

2007).

Having identified the purpose of this act––protection of the public

fisc, we now must consider whether this purpose justifies the retroactive

aspect of the legislation––ratification of past franchise fees. It is at this
 20

juncture that the distinction between tax statutes and curative acts

becomes most important. Unlike the revenue-raising tax statutes at

issue in Carlton and like cases, which were designed to ensure tax

collections remained at the same level or increased in the future, the

curative act at issue here was designed to avoid the refund of monies

already collected and spent. We agree with the district court that these

purposes (maintaining revenue at the same or a higher level and avoiding

refunds of past receipts) are fundamentally different. One need only put

oneself in the position of the city to appreciate the distinction between

the retroactivity of tax statutes versus the retroactivity of curative

legislation. It is one thing to learn you will not be getting a raise as large

as you anticipated and will have to adjust future expenditures

accordingly (similar to allowing tax statutes limited retroactivity resulting

in decreased future revenues); it is quite another matter to learn that you

will have to return a portion of the income you have already received and

spent (similar to the situation of denying retroactive authorization of

taxes already collected and spent by the city). Clearly, the latter

situation provides a more compelling justification for retroactivity than

does the former.

Moreover, the fairness of retroactivity vis-à-vis the taxpayer is

fundamentally different in these situations. In the context of retroactive

tax legislation, the taxpayer has conducted himself in accordance with

the laws in effect at the time of a particular transaction and then

subsequently, due to the retroactivity of a new tax statute, is taxed on

the past transaction. In contrast, when curative legislation is at issue,

the taxpayer has entered into the transaction knowing the transaction is

burdened with a particular fee or tax. Ratification of the tax or fee does

not change the rules of the game after the taxpayer has placed his bet, as
 21

is the case with retroactive tax legislation. See Charles B. Hochman, The

Supreme Court and the Constitutionality of Retroactive Legislation, 73

Harv. L. Rev. 692, 704, 705–06 (1960) [hereinafter The Constitutionality

of Retroactive Legislation] (noting “the interest in the retroactive curing of

. . . a defect in the administration of government outweighs the

individual’s interest in benefiting from the defect”); cf. Miller v. Johnson

Controls, Inc., 296 S.W.3d 392, 401 (Ky. 2009) (allowing retroactive

“clarification” of tax statute to conform to interpretation made by taxing

authority, noting “the clear and lengthy notice, the lack of settled

expectations and lack of detrimental reliance”), cert. denied, ___ U.S. ___

(2010).

The period of retroactivity justified by the purpose and effect of

these clearly different statutes has been recognized by courts and

scholarly authors alike. In a Kentucky case, the court noted the

situation in Carlton was “significantly different” from the facts presented

in the Kentucky case in which the taxpayers sought refunds of fees the

municipality had already collected. King, 217 S.W.3d at 870 (concluding

nineteen-year period of retroactivity did not violate taxpayers’ due

process rights). In his treatise, Singer also recognizes the singular

nature of curative acts when he discusses the constitutionality of such

legislation: “[T]he very reason for curative legislation is to fulfill and

secure expectations rather than to frustrate and defeat them. The

principles governing decisions about the validity of retroactive legislation

do not work to render curative acts invalid.” Singer on Statutory

Construction § 41:12, at 509 (emphasis added). Another author notes,

“[c]ases involving the retroactive imposition of taxes must be treated

separately” from curative statutes “which ratify prior official conduct of

government officers who have acted without the requisite authority.” The
 22

Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. at 704, 706.

Thus, it is inaccurate to suggest curative statutes are subject to the same

retroactivity concerns and limitations as tax statutes.

The justification for allowing curative acts to operate retroactively

has been explained as follows:

Non-substantive laws that operate retroactively help to
rectify or prevent injustices that may have been caused by
the previous law. For example, so-called “curative
legislation” will be upheld when the legislation: (1) ratifies
prior official conduct of government officials who acted
without the requisite authority, or (2) retroactively cures
defects in an administrative system. Retroactive curative
rules are acceptable because of the strong public interest in
a fair government system, and because they merely produce
the same result that would have occurred had the lawmaker
(usually an agency) promulgated the original rule correctly.

Jan G. Laitos, Legislative Retroactivity, 52 Wash. U. J. Urb. & Contemp.

L. 81, 95 (1997) (footnotes omitted); accord Stephen R. Munzer, A Theory

of Retroactive Legislation, 61 Tex. L. Rev. 425, 470 (1982) (suggesting

retroactivity of curative legislation is justifiable because “[i]t tends to

confirm expectations and to protect those who rely on the underlying

merits of a claim rather than those who grasp at legal technicalities”);

Laura Ricciardi & Michael B.W. Sinclair, Retroactive Civil Legislation, 27

U. Tol. L. Rev. 301, 338 (1996) (“Such curative legislation affirms as

proper what everyone had taken to be the law anyway: it ‘restores a

situation that was affirmatively anticipated and provided for.’ ”). Thus,

“[w]here legislation is curative, retroactive application may be

constitutional despite a long period of retroactivity.” Wiggins v. Comm’r

of Internal Revenue, 904 F.2d 311, 316 (5th Cir. 1990).

The United States Supreme Court long ago recognized the very

distinction we note. In United States v. Heinszen, 206 U.S. 370, 27 S. Ct.

742, 51 L. Ed. 1098 (1907), the Court reversed a judgment refunding
 23

duties illegally collected on imports to the Philippine Islands under

executive branch authority, relying on curative legislation passed by

Congress. In 1898, the President imposed tariff duties on imports to the

Philippine Islands. Heinszen, 206 U.S. at 378, 27 S. Ct. at 743, 51

L. Ed. at 1100. In 1899, a treaty of peace was ratified, which had the

effect of taking away the President’s power to impose these duties; yet the

President continued the duties in force. Id. Three years later, in 1902,

Congress expressly authorized the imposition of duties. Id. at 378, 27

S. Ct. at 743, 51 L. Ed. at 1100–01. In 1905, the Supreme Court heard

two appeals from parties who had been denied refunds of duties paid

between 1899 and 1902, before the duties were authorized. Id. at 380–

82, 27 S. Ct. at 744–45, 51 L. Ed. at 1101–02. The Court reversed the

judgments in favor of the government and held the President was without

power to impose the duties after the treaty of peace was ratified in 1899.

Id. Thereafter, in 1906, Congress passed an act legalizing and ratifying

the collection of the unauthorized duties between 1899 and 1902. Id.

A year later the Heinszen appeal reached the Court. The district

court in Heinszen had held duties paid by the claimants between 1899

and 1902 were illegal and had refused to give effect to the 1906

ratification of the unauthorized duties. Id. at 382, 27 S. Ct. at 745, 51

L. Ed. at 1102. The claimants asserted on appeal that application of the

ratifying act would deprive them of their property without due process of

law, arguing they had a vested right in the monies illegally exacted from

them. Id. at 386, 27 S. Ct. at 746, 51 L. Ed. at 1104. The Supreme

Court noted the general principle that Congress “had [the] power to ratify

the acts which it might have authorized.” Id. at 384, 27 S. Ct. at 745, 51

L. Ed. at 1103. Of particular significance to the present case is the

Court’s refusal to consider the legalizing act as a taxing statute:
 24
As to [the claim] the duties collected were illegal, it is
insisted that, for the purpose of testing the validity of the act
of Congress, the fact of such collection must be put out of
view, and the act ratifying the exaction must be treated as if
it were solely an original exercise by Congress of the taxing
power. This being done, it is said, reduces the case to the
inquiry, had Congress power, years after goods which were
entitled to free entry had been brought into the Philippine
Islands, to retroactively impose tariff duties upon the
consummated act of bringing the goods into that country?
But the proposition begs the question for decision, by
shutting out from view the potential fact that when the goods
were brought into the Philippine Islands there was a tariff in
existence under which duties were exacted in the name of
the United States. . . . Moreover, the fallacy which the
proposition involves becomes yet more obvious when it is
observed that the contention cannot even be formulated
without misstating the nature of the act of Congress; in other
words, without treating that act as retrospective legislation
enacting a tariff, when, on its very face, the act is but an
exercise of the conceded power dependent upon the law of
agency to ratify an act done on behalf of the United States,
which the United States could have originally authorized.

Id. at 385–86, 27 S. Ct. at 746, 51 L. Ed. at 1103–04. The Court went on

to reject the claimants’ due process claim, noting any right to a refund

held by the claimants “was subject to the exercise by Congress of its

undoubted power to ratify.” Id. at 386, 27 S. Ct. at 746, 51 L. Ed. at

1104. The Court stated the fact that the instant suit was pending at the

time Congress ratified the illegal duties did not “cause the statute to be

repugnant to the Constitution,” as “[t]he mere commencement of the suit

did not change the nature of the right.” Id. at 387, 27 S. Ct. at 747, 51

L. Ed. at 1104.

Heinszen was followed by the Court’s 1937 decision in Swayne &

Hoyt, Ltd. v. United States, 300 U.S. 297, 57 S. Ct. 478, 81 L. Ed. 659

(1937). In Swayne & Hoyt, steamship corporations challenged an order

of the Secretary of Commerce canceling higher rates the corporations

had been charging shippers through the Panama Canal. 300 U.S. at

299–300, 57 S. Ct. at 478–79, 81 L. Ed. at 661–62. The corporations
 25

claimed, correctly, that the Secretary acted without authority, but the

Court found Congress had subsequently validated the Secretary’s action

through various legislative acts. Id. at 300–01, 57 S. Ct. at 479–80, 81

L. Ed. at 662–63. As in Heinszen, the Court pointed out “a distinction

must be taken ‘between a bare attempt of the Legislature retroactively to

create liabilities for transactions . . . fully consummated in the past . . .

and the case of a curative statute aptly designed to remedy mistakes and

defects in the administration of government where the remedy can be

applied without injustice.’ ” Id. at 302, 57 S. Ct. at 480, 81 L. Ed. at 663

(quoting Graham v. Goodcell, 282 U.S. 409, 429, 51 S. Ct. 186, 194, 75

L. Ed. 415, 440 (1931)). The Court held “the retroactive application of

the curative act impair[ed] no substantial right or equity of [the

corporations]” and was not “unreasonable and arbitrary.” Id. at 302, 57

S. Ct. at 480, 81 L. Ed. at 663–64.

A review of the Van Emmerik case cited above is also helpful

because it relies on Heinszen and has facts strikingly similar to the case

before us. See Van Emmerik, 304 N.W.2d at 701–05, 707. In

Van Emmerik, the state of South Dakota had collected a four percent

sales tax on the sale of utility services beginning in 1969, even though

the tax statute applicable to utilities imposed only a three percent tax.

Id. at 701–02. In 1979, a class action seeking refunds of the one percent

illegal tax was brought against the utilities and the state on behalf of all

South Dakota residents who had paid the excessive sales taxes on their

utility bills. Id. at 701. Thereafter, in 1981, the South Dakota legislature

enacted a law imposing a four percent tax on utilities and making it

retroactive to 1969. Id. at 702. The class action petitioner challenged

the constitutionality of this legislation, claiming it constituted “a taking
 26

of property without just compensation in violation of the Due Process

Clauses of the Fifth and Fourteenth Amendments.” 10 Id. at 703.

In addressing this claim, the South Dakota Supreme Court first

noted that the act “purports to ratify the unauthorized collection by state

officials of sales tax overcharges and to that extent, the law is a curative

act.” Id. It rejected the petitioner’s argument that the utility customers

had a right to a refund, stating:

The unauthorized tax had been mistakenly collected without
interruption since 1969 and petitioner presumably shared in
whatever public benefits the tax funded. Where an asserted
vested right that is not linked to any substantial equity
arises from the mistake of officers purporting to administer
the law in the name of the State, the Legislature is not
prevented from curing the defect in administration simply
because the effect may be to destroy claims that would
otherwise exist. . . . Petitioner (having shared in the benefits

10At the time of this decision, the test of reasonableness for purposes of
determining whether a taking had occurred was substantially the same as the test for a
substantive due process claim. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 541–
42, 125 S. Ct. 2074, 2083, 161 L. Ed. 2d 876, 889–90 (2005) (discussing evolution of
takings analysis, noting its “reliance on due process precedents”). This court has also
equated the two tests. In Home Builders, this court considered a claim that an illegal
tax in the form of a park dedication fee constituted a Fifth Amendment taking. Home
Builders Ass’n, 644 N.W.2d at 351. We concluded it did not because “the fees were
‘reasonably related to a substantial public purpose.’ ” Id. (quoting Swisher Int’l, Inc. v.
United States, 178 F. Supp. 2d 1354, 1362 (Ct. Int’l Trade 2001), aff’d, Arbon Steel &
Serv. Co. v. United States, 315 F.3d 1332 (Fed. Cir. 2003)). See generally Penn Cent.
Transp. Co. v. City of New York, 438 U.S. 104, 127, 98 S. Ct. 2646, 2660, 57 L. Ed. 2d
631, 650 (noting “a use restriction on real property may constitute a ‘taking’ if not
reasonably necessary to the effectuation of a substantial public purpose”), reh’g denied,
439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 198 (1978), modification recognized by Palm
Beach Isles Assocs. v. United States, 231 F.3d 1354 (Fed. Cir. 2000). In considering the
plaintiff’s substantive due process claim, we noted there must merely be “ ‘ a
“reasonable fit” between governmental purpose . . . and the means chosen to advance
that purpose.’ ” Home Builders Ass’n, 644 N.W.2d at 353 (quoting ACCO Unlimited
Corp. v. City of Johnston, 611 N.W.2d 506, 510 (Iowa 2000)). We concluded this test
was met, stating, “[w]e have already determined in connection with our takings analysis
that the parks fee is reasonably related to the City’s goal of establishing neighborhood
parks. This conclusion also disposes of the plaintiff’s substantive due process claim.”
Id. at 354. Thus, even though Van Emmerik involved a takings claim, the court applied
substantially the same test we must employ in the present case for substantive due
process.
 27
funded by the tax) effectively seeks a windfall in claiming
that a vested right has arisen here since, had the official
action in question had the effect it was intended to and could
have had, no such right would have arisen.

Id. at 705; cf. Johnson Controls, 296 S.W.3d at 397 (holding taxpayers

had no “vested right in the Kentucky Revenue Code”). The court also

held the petitioner’s claim that the law “is invalid due to its eleven and

one-half year period of retroactivity . . . lack[ed] merit.” Van Emmerik,

304 N.W.2d at 706. The court noted the temporal element of

retroactivity is relevant to the fairness of applying the legislation

retroactively. Id. (“The obvious reason for this concern is rooted in the

principle that a person should be able to plan his conduct with

reasonable certainty of the legal consequences.”). Although this

consideration is “[a]n important element” in cases involving “retroactive

taxation,” the court noted, this principle of fairness was “not threatened

here.” Id. Accordingly, the court gave full effect to the legislature’s

ratification of eleven and one-half years of unauthorized taxation. Id.

The petitioner’s subsequent appeal to the United States Supreme Court

was dismissed “for want of a substantial federal question.” Van Emmerik

v. Janklow, 454 U.S. 1131, 102 S. Ct. 986, 71 L. Ed. 2d 285 (1982).

A more recent decision of the United States Court of Appeals for

the District of Columbia Circuit is also factually on point. See Thomas v.

Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999), cert. denied, 528

U.S. 1115 (2000). In this case, the National Science Foundation (NFS),

an agency of the federal government, contracted with Network Solutions,

Inc., a private corporation, to provide domain registration services for the

Internet. Id. at 504. Pursuant to the contract, Network Solutions

charged domain name registrants a yearly registration fee, with seventy

percent of the fees kept by Network Solutions and the remaining thirty
 28

percent deposited in an account on NFS’s behalf “for preserving and

enhancing the ‘Intellectual Infrastructure of the Internet.’ ” Id. at 505.

Plaintiffs, registrants who paid the annual registration fees, brought suit,

seeking refunds of the so-called preservation assessment. Id. The

district court held the preservation assessment “was an above-cost tax

Congress had not authorized and hence was unconstitutional.” Id.

Congress immediately enacted a law that “legalized and ratified” the

preservation assessment that had been illegally collected for over two

years. Id. The district court then dismissed the plaintiffs’ claims as

moot. Id. at 506.

On appeal, the court of appeals considered the effect of

Congressional ratification of the illegal tax. Id. Quoting Heinszen, it

noted “that Congress ‘has the power to ratify the acts which it might

have authorized’ in the first place, so long as the ratification ‘does not

interfere with intervening rights.’ ” Id. (quoting Heinszen, 206 U.S. at

384, 27 S. Ct. at 745–46, 51 L. Ed. at 1103). The court affirmed the

district court’s denial of the plaintiffs’ claim. Id. at 512.

An analogous case involving an act characterized as clarifying prior

law is also enlightening. In Robert Morris College v. United States, 11 Cl.

Ct. 546, 547 (Cl. Ct. 1987), a taxpayer sought a refund of FICA taxes

paid for the years 1979–1983. These taxes were calculated pursuant to a

1965 revenue ruling issued by the Department of Treasury interpreting

the governing statute. Robert Morris Coll., 11 Cl. Ct. at 547. The

taxpayer claimed the Department’s interpretation was inconsistent with a

decision of the United States Supreme Court, Rowan Cos. v. United

States, 452 U.S. 247, 101 S. Ct. 2288, 68 L. Ed. 2d 814 (1981), and

therefore, it was entitled to a refund of the erroneously paid taxes. Id. at

547–48. In 1983, Congress, concerned about the impact of Rowan on
 29

taxes already collected, passed a law that in effect amended the

governing statute to make it consistent with the revenue ruling. Id. at

549, 551. In 1984, Congress made the 1983 statute effective for years

prior to 1983 “to preclude the possibility of refunds of FICA taxes paid in

conformity with [the revenue ruling].” Id. at 551.

The taxpayer challenged the retroactive application of the new law,

claiming it deprived the taxpayer “of its right to recover an overpayment.”

Id. at 553. The taxpayer also claimed “that since the 1984 Act covers

retroactively such a long period of time, it violates due process.” Id. The

court rejected this claim, stating:

Plaintiff was not deprived of any amounts to which it was
entitled, nor did the legislation change its status by requiring
plaintiff to pay additional amounts. Instead, Congress in
pursuit of rational purposes––protection of the Social
Security base and prevention of the potential disruption
Rowan could cause––codified a revenue ruling which had
been in force during the period in question. Plaintiff
complied with [this revenue ruling] throughout, and it
should not be considered arbitrary or unfair that it cannot
reclaim amounts paid to Social Security which it never
expected to be refunded.

Id. at 553–54; accord Canisius Coll. v. United States, 799 F.2d 18, 26–27

(2d Cir. 1986), cert. denied, 481 U.S. 1014 (1987); Temple Univ. v. United

States, 769 F.2d 126, 135 (3d Cir. 1985), cert. denied, 476 U.S. 1182

(1986); Johnson Controls, 296 S.W.3d at 401.

A final case that is factually similar, and therefore helpful, is the

Kentucky Court of Appeals’ King decision previously mentioned. In King,

two counties had for many years imposed a “fee” on individual incomes

and business net profits without giving those paying the fees a credit for

similar city fees paid by the taxpayers. 217 S.W.3d at 865–66. In 2001,

taxpayers challenged the county fees, and the Kentucky Supreme Court

held in 2004 that the counties should have been giving the taxpayers a
 30

credit for city fees the taxpayers had paid. Id. Based on this decision,

the taxpayers filed an action on their own behalf and on behalf of all

other persons who had paid the county fees seeking refunds of the

excessive fees charged by the counties since 1986. Id. In response to

the same decision, the legislature enacted a law providing that no

taxpayer was entitled to a refund for any overpayment and making the

statute retroactive. Id. at 866–67. The district court ruled the statute

was not unconstitutional and dismissed the taxpayers’ suit for refunds.

Id. at 865.

On appeal, the appellate court held the statute precluding refunds

of all excessive fees did not violate due process notwithstanding its long

period of retroactivity, noting the legislature had enacted this provision

“to shield [the counties] from what it believed could be the devastating

[financial] consequences of the Supreme Court’s decision.” Id. at 870

(distinguishing Carlton as dealing with a situation “significantly

different”). The court noted, “If there are ‘settled expectations’ in this

case, they are the County’s, not the taxpayers.” Id.; see also Jasinski v.

City of Miami, 269 F. Supp. 2d 1341, 1347 (S.D. Fla. 2003) (“When a

legislative body, in good faith, enacts a curative law to ratify, validate and

confirm any act that it could have authorized in the first place, . . . it

would contravene public policy to award plaintiffs a windfall for asserting

a cause of action that the legislative body may constitutionally eliminate

by curing any defects in the law.”), aff’d, 99 Fed. App’x 887 (11th Cir.

2004); Johnson Controls, 296 S.W.3d at 401 (upholding retroactive

“clarifying” legislation denying taxpayer refunds, noting taxpayers’ “lack

of settled expectations and lack of detrimental reliance”).

The plaintiff claims the cases we have discussed are not good law

in light of the United States Supreme Court’s decision in McKesson Corp.
 31

v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 110 S. Ct.

2238, 110 L. Ed. 2d 17 (1990). In McKesson, the Florida Supreme Court

had ruled that a Florida “tax scheme unconstitutionally discriminated

against interstate commerce,” but the court had refused to provide the

taxpayer a refund for taxes it had already paid. 497 U.S. at 22, 110

S. Ct. at 2242, 110 L. Ed. 2d at 26. On certiorari to the United States

Supreme Court, the Court held “the Due Process Clause requires the

State to afford taxpayers a meaningful opportunity to secure

postpayment relief for taxes already paid pursuant to a tax scheme

ultimately found unconstitutional.” Id. at 22, 110 S. Ct. at 2242, 110

L. Ed. 2d at 26–27.

Clearly, McKesson addressed the taxpayer’s procedural due process

rights; it did not consider the validity of curative legislation under the

doctrine of substantive due process. Moreover, the tax at issue in

McKesson was one that was inherently unconstitutional or illegal, one

that the state had no power to authorize under any circumstances. As

we have already noted, the tax at issue here was not one that was

inherently unconstitutional; it had simply not been authorized by the

legislature at the time it was assessed and paid. McKesson plainly does

not stand for the proposition that principles of substantive due process

are violated by the enactment of a curative statute that retroactively

ratifies a taxing authority’s imposition of an otherwise permissible tax.

See Atchison, Topeka & Santa Fe Ry. v. United States, 61 Fed. Cl. 501,

508 (Fed. Cl. 2004) (rejecting due process challenge to retroactivity of

statute, distinguishing McKesson from cases involving curative

legislation); Johnson Controls, 296 S.W.3d at 402–03 (rejecting

applicability of McKesson to due process challenge to legislature’s

retroactive confirmance of state taxing authority’s interpretation of tax
 32

statute). Therefore, McKesson does not undermine the validity of the

cases upon which we rely.

In summary, then, the cases and legal authorities addressing the

retroactive application of curative legislation establish: (1) ratification of

a tax already imposed and collected cannot be equated with the

retroactive imposition of a new tax for purposes of determining the

constitutionality of retroactive application of a curative act, (2) curative

acts do not impair any vested right of the taxpayer, 11 (3) there is no

litmus test for a reasonable period of retroactivity for curative acts, and

(4) ratification of a tax collected without authority is given full

retroactivity so long as the retroactivity furthers a legitimate purpose.

The legislative purpose behind the curative act in this case was

clearly to allocate the burdens of government and to avoid financial

disruption to the finances of the cities involved. Importantly, this

situation in not one in which taxpayers have reasonably relied upon tax

11We note that Iowa law regarding the impairment of vested rights is consistent
with the authorities we have discussed. In fact, the precise argument plaintiff makes
here––that he has a vested right to a refund––was made and rejected in our early Soper
case. 39 Iowa at 117–18. In that case, the plaintiff argued “that before the passage of
the curative act, the plaintiff had a right of action to recover back the illegal taxes paid,
and that this is a vested right.” Id. at 121. We rejected the plaintiff’s argument there
and have continued to hold in subsequent cases that curative legislation ratifying an
invalid exercise of governmental power, including previously imposed taxes, does not
interfere with vested rights. Id. at 124; see Schwarzkopf, 341 N.W.2d at 8; Iowa Elec.
Light & Power Co. v. Inc. Town of Grand Junction, 221 Iowa 441, 452–53, 264 N.W. 84,
90 (1935); Rosenbaum, 212 Iowa at 232–34, 231 N.W. at 648–49; Chicago, R.I. & P. Ry.
v. Streepy, 211 Iowa 1334, 1338, 236 N.W. 24, 26 (1931); Indep. Dist. of Avoca, 99 Iowa
at 561–62, 68 N.W. at 882; Boardman, 18 Iowa at 294–95.
The plaintiff places great reliance on our decision in Thorp v. Casey’s General
Stores, Inc., 446 N.W.2d 457 (Iowa 1989), in which this court held the retroactive
application of an amendment to Iowa’s dramshop law that eliminated a plaintiff’s
accrued tort claim deprived her of a vested right in violation of due process. Thorp, 446
N.W.2d at 462. We specifically noted in our decision, however, that a similar
conclusion does not prevail when the retroactive legislation is a curative act. Id. Such
statutes, we stated, survive constitutional scrutiny even if they deprive a plaintiff of a
vested cause of action. Id.
 33

law and structured their affairs in a fashion that is prejudiced by the

retroactive legislation. The fee payers in this case paid unauthorized

franchise fees that were later ratified by the state. If the taxpayers in

these municipalities had known that ratification would be forthcoming,

they would not have altered their conduct in any material way.

Certainly the legislature could have refused to ratify the acts of the

cities, requiring the burden of tax refunds resulting from the unlawfully

collected taxes to be borne by current city taxpayers, either in the form of

increased taxes or reduced services. Instead, however, the legislature

decided to avoid these disruptions by retroactively ratifying the taxes

already paid. 12 One may, of course, question the wisdom of these

ratifying decisions on the ground that cities should be left to their own

devices after pushing the tax envelope too far. The issue of the degree to

which municipalities must be held on a short leash through a refusal to

ratify unauthorized tax collections is generally a political question for the

legislature to decide. In this case, the legislature’s determination that

the interest in stable municipal finances trumps the need to discipline

city management does not amount to an arbitrary or irrational choice

under the facts and circumstances.
IX. Period of Retroactivity.

As a backup argument, the plaintiff contends that, if we hold the

legislature had the power to retroactively authorize the illegal taxes

imposed by cities on cable television services, the retroactive application

12Notably, no taxpayer has been arbitrarily or irrationally singled out for special

treatment. See Commonwealth Edison Co. v. Will County Collector, 749 N.E.2d 964, 975
(Ill. 2001) (upholding legislative act validating taxes predating effective date of
legislation, noting the general assembly was not targeting any particular group of
taxpayers “for retribution or other illegitimate purpose”); cf. Carlton, 512 U.S. at 32, 114
S. Ct. at 2023, 129 L. Ed. 2d at 29 (concluding retroactive amendment to tax statute
did not violate due process, in part, because “Congress’ purpose in enacting the
amendment was neither illegitimate or arbitrary”).
 34

of this authorization should be limited to “one year or the adjournment of

the previous legislative session, May 3, 2006.” He claims courts applying

Carlton use a “bright line one year rule as the constitutionally

permissible period of retroactivity for state tax legislation.” The plaintiff’s

suggestion that a one-year retroactive period approaches the due process

limit is based on dicta in Justice O’Connor’s concurring opinion in

Carlton. See Carlton, 512 U.S. at 38, 114 S. Ct. at 2026, 129 L. Ed. 2d at

33 (“A period of retroactivity longer than the year preceding the legislative

session in which the law was enacted would raise, in my view, serious

constitutional questions.”) (O’Connor, J., concurring).

In our view, however, Justice O’Connor’s comments were not

meant to amount to a per se rule in all cases of every variety involving

taxes. Moreover, a majority of the Supreme Court in Carlton did not

embrace a one-year rule, but instead provided a more flexible framework

for deciding the due process question. See Montana Rail Link, Inc., 873

F. Supp. at 1421 (rejecting plaintiff’s argument that all retroactive

legislation must have a “short and limited period” of retroactivity, stating

“in Carlton the Court did not establish a specific time frame for the

validity of retroactive legislation”); Enter. Leasing Co. of Phoenix v. Ariz.

Dep’t of Revenue, 211 P.3d 1, 5–6 (Ariz. Ct. App. 2008) (rejecting

interpretation of Carlton as standing for proposition that “retroactivity in

excess of one year . . . creates a due process issue” and holding six-year

period of retroactivity did not violate due process), review denied, (Ariz.

2009); Johnson Controls, 296 S.W.3d at 399 (rejecting “a specified

modesty period,” noting eight of the nine justices in Carlton did not

subscribe to a one–year limit on retroactivity); see also Canisius Coll.,

799 F.2d at 26–27 (rejecting “a one-year bench mark as the

constitutional limit of retroactivity,” and holding four–year retroactive
 35

application of curative statute was not violative of due process); cf. Licari

v. Comm’r of Internal Revenue, 946 F.2d 690, 695 (9th Cir. 1991)

(rejecting due process challenge to statute retroactively increasing tax

penalty, noting a four-year period of retroactivity was not, by itself,

sufficient to violate due process), aff’d, 946 F.2d 898 (9th Cir. 1991);

Temple Univ., 769 F.2d at 135 (in case involving clarifying legislation

applied retroactively to plaintiff’s tax returns going back six years, court

stated, “no federal court of appeals has yet adopted an absolute temporal

limitation on retroactivity,” citing case allowing a nine-year period of

retroactivity). Moreover, to the extent Carlton stands for the proposition

that tax statutes must have a certain period of retroactivity, that

proposition is inapplicable here because the legislation authorizing the

city’s franchise fees is a curative act.

It is, of course, possible under the Iowa due process clause to

adopt a different approach from the federal model. Our recent cases

emphasize that we jealously protect our right to engage in independent

analysis of state constitutional claims, both with respect to the standards

to be utilized and the application of those standards to the facts and

circumstances of a given case. See, e.g., State v. Bruegger, 773 N.W.2d

862, 883 (Iowa 2009); Racing Ass’n of Cent. Iowa v. Fitzgerald, 675

N.W.2d 1, 6–7 (Iowa 2004). Here, however, the plaintiff does not propose

a wholesale abandonment of established federal doctrine under the Iowa

Constitution, but instead implies that the dicta in Justice O’Connor’s

concurring opinion in Carlton should provide the basis for a decision in

his favor under the Iowa Constitution. This dicta does not present a

basis for decision under the Iowa Constitution in light of the nature of

the dispute presented here and the lack of detrimental reliance by the

taxpayers. While there are Iowa cases that suggest a short period of
 36

retroactivity for tax legislation, these cases do not involve ratification of

prior acts of municipalities by the state. See, e.g., Shell Oil Co. v. Bair,

417 N.W.2d 425, 431–32 (Iowa 1987); City Nat’l Bank of Clinton v. Iowa

State Tax Comm’n, 251 Iowa 603, 608–09, 102 N.W.2d 381, 384 (1960).

Having rejected a rigid limit on the allowable period of retroactivity

for curative legislation, we will consider the plaintiff’s argument that only

a modest period of retroactivity can satisfy due process using the

substantive due process principles outlined above. As we have

discussed, the purpose of the 2007 act passed by the Iowa legislature

was to safeguard the financial stability of municipalities by ensuring they

would not be required to refund substantial sums that they had already

collected––and spent. Clearly, the validation of past collections was a

reasonable fit with this legislative purpose. The plaintiff has not

demonstrated why this purpose––to safeguard the public fisc––is

advanced by allowing the city to retain the past one or two years of taxes,

but not the past five and one-half years of taxes. See The

Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. at 704

(“[W]hen dealing with curative statutes, the Court has consistently held

that the legislative purpose is of itself sufficient to justify the concomitant

retroactivity.”); cf. Rocanova v. United States, 955 F. Supp. 27, 30

(S.D.N.Y. 1996) (holding six-year period of retroactivity for lengthened

statute of limitations governing government claims for back taxes did not

violate due process as “[t]he very purpose of the Amendment required its

application to all existing tax liabilities”), aff’d, 109 F.3d 127 (2d Cir.),

cert. denied, 522 U.S. 821 (1997); Johnson Controls, 296 S.W.3d at 401

(rejecting due process challenge to 2000 statute that gave effect to taxing

authority’s interpretation of tax statute from 1988 to 1994, an

interpretation that was held erroneous by the Kentucky Supreme Court
 37

in 1994). See generally Waters, 251 N.W.2d at 548 (stating a curative act

“ ‘is necessarily retrospective in character’ ” (quoting McSurely v. McGrew,

140 Iowa 163, 172, 118 N.W. 415, 419 (1908))). Therefore, the plaintiff

has not carried his burden to establish the unconstitutionality of the

legislature’s action.

X. Summary and Disposition.

We recognize the result in this case makes litigation challenging

municipal taxes that have not been authorized by the state less attractive

as recovery of potential refunds may be cut off by the legislature. Yet,

any municipality that imposes unauthorized taxes runs the risk of fiscal

disruption in the event the legislature declines to ratify its actions. 13 If

the legislature wishes to provide taxpayers with a mandatory recovery

when unauthorized taxes are levied by local governments, it may do so

through appropriate legislation. As even the Carlton Court stated with

respect to the retroactive imposition of a new tax:

“Provided that the retroactive application of a statute is
supported by a legitimate legislative purpose furthered by a
rational means, judgments about the wisdom of such
legislation remain within the exclusive province of the
legislative and executive branches. . . .”

Carlton, 512 U.S. at 30–31, 114 S. Ct. at 2022, 129 L. Ed. 2d at 28

(quoting Pension Benefit Guar. Corp., 467 U.S. at 729, 104 S. Ct. at 2718,

81 L. Ed. 2d at 611); accord Usery v. Turner Elkhorn Mining Co., 428 U.S.

1, 19, 96 S. Ct. 2882, 2894, 49 L. Ed. 2d 752, 768–69 (1976) (noting

wisdom of retroactive application of statute imposing liability on coal

mine operators for disabilities of former employees was “not a question of

13We note the fees determined to constitute illegal taxes in Kragnes were

imposed on gas and utility services. The legislation at issue here does not ratify such
fees, and in fact, the plaintiff in this case has a pending claim for refund of gas and
utility fees.
 38

constitutional dimension,” and holding retroactivity was not a due

process violation). This court made a similar observation in State v.

Miner, 331 N.W.2d 683 (Iowa 1983), in considering a substantive due

process challenge to economic regulation: “Our function is not that of a

super-legislature which weighs the wisdom of legislation; we look only to

whether the means chosen by the State are rational and reasonably

necessary to the accomplishment of the State’s purpose.” 331 N.W.2d at

689 (citation omitted). For the present, our legislature has reserved to

itself the power to determine whether to ratify unauthorized local taxes

on a case-by-case basis. We must defer to a constitutional exercise of

that judgment.

In summary, the legislature’s ratification of the city’s unauthorized

tax is a curative statute whose purpose––to safeguard the public fisc and

the financial stability of local municipalities––is rationally related to its

retroactivity. Therefore, this statute does not violate the plaintiff’s

substantive due process rights. We affirm the district court’s summary

judgment for the city on the plaintiff’s claim for a refund of fees paid on

cable television services. We remand this case for further proceedings on

the plaintiff’s claim for a refund of gas and utility fees.

AFFIRMED AND CASE REMANDED.

All justices concur except Wiggins and Hecht, JJ., who dissent.
 39

#07–1819, Zaber v. City of Dubuque

WIGGINS, Justice (dissenting).

The facts of this case illustrate why many ordinary citizens distrust

their elected officials. In 2002 this court’s decision in Home Builders

Ass’n of Greater Des Moines, established the proposition that any fees a

city collects is an illegal tax when it charges franchise fees not

reasonably related to the reasonable costs of inspecting, licensing,

supervising, or otherwise regulating a franchised activity. Home Builders

Ass’n of Greater Des Moines v. City of W. Des Moines, 644 N.W.2d 339,

347–48 (Iowa 2002).

On May 2, 2005, the elected officials of the City of Dubuque

enacted a cable franchise fee. Dubuque Mun. Code ch. 11, § 3A-7(1).

Under existing Iowa law, the city should have known that such a fee is

an illegal tax to the extent it exceeds the reasonable administrative costs

of regulating the cable provider. The fee as enacted was due not to the

city, but to cable providers who would disconnect a subscriber’s cable

service if he or she refused to pay the illegal tax. Once the citizens of

Dubuque realized the franchise fee was nothing more than an illegal tax,

they brought this action to seek a refund.

On May 26, 2006, this court issued the Kragnes decision. Kragnes

v. City of Des Moines, 714 N.W.2d 632 (Iowa 2006). In Kragnes, this

court held the citizens of a municipality could bring an action against the

municipality for a refund of that part of a franchise fee paid by the

citizens that exceeded the reasonable administrative costs related to gas

and electric utility franchises. Id. at 643–44. In response to Kragnes,

the 82nd General Assembly passed a law authorizing franchise fees in

excess of a city’s administrative costs and giving municipalities the right

to retain the revenues it collected from the illegal tax. Iowa Code
 40

§ 477A.7(5) (Supp. 2007). This law became effective May 29, 2007. 2007

Iowa Acts ch. 201, § 15.

I assume that in 2005, when the Dubuque City Council passed its

franchise fee, the 81st General Assembly had neither the votes nor the

political will to authorize the city to collect franchise fees on cable

services in excess of the reasonable costs of inspecting, licensing,

supervising, or otherwise regulating such services. Subsequently, the

82nd General Assembly, a legislative body not elected by the people at

the time the Dubuque City Council levied and collected the illegal tax,

decided the city could retain the revenues generated by the tax. The

actions of the 82nd General Assembly, authorizing the collection of the

illegal tax retrospectively, compounded the unfairness of the actions of

the Dubuque City Council when it enacted the tax without legislative

authority. Such conduct by these elected officials completely disregarded

the political will of the general assembly at the time the Dubuque City

Council imposed the franchise fee on cable services. These actions are

as repugnant to the American system of taxation as the concept of

taxation without representation.

The majority decision holds, a curative statute may, consistent

with due process principles, authorize the unfettered retroactive

application of an illegal tax so long as the purpose of the curative statute

is to protect the public fisc. Of course, any time a city must pay out

funds the public fisc is at risk. Thus, under the majority’s decision, a

curative statute authorizing the imposition and retention of an illegal tax

can never be subject to a due process challenge.

Taking the holding of the majority to its logical conclusion leads to

the result that any act a legislative body had the power to enact, but did

not authorize by formal legislative enactment, could be the subject of a
 41

curative act and evade the requirements of the Due Process Clauses of

the United States and Iowa Constitutions. This reasoning is illogical,

and its flaw is illustrated by the following example.

The general assembly has the power to enact a fee on hunters.

However, such a fee is nothing more than an illegal tax until a bill

enacting such a fee is introduced in the general assembly, passed by a

constitutional majority of the house and senate, and signed by the

governor. Suppose the department of natural resources decides the

state’s financial situation requires more revenues and on its own, enacts

a rule to collect an additional ten percent fee on hunting licenses without

the authorization of a law enacting such an increase. Because the

legislature has not authorized this fee, it is an illegal tax. Under the logic

of the majority, the department may collect and retain this tax without

legislative authority so long as a subsequent general assembly enacts a

curative act allowing the state to retain the illegal tax it previously

collected.

Moreover, a retroactive tax is a new tax whether the legislature

enacts it as a curative statute or by other legislation. The effect is the

same, the legislature is authorizing a governmental entity to collect and

retain the revenues of a tax that the entity previously was not authorized

to collect. The manner in which the legislature enacts a retroactive tax is

a distinction without a difference.

This does not mean, however, retroactive taxes necessarily violate

the Due Process Clauses of the Federal or State Constitutions. See, e.g.,

United States v. Carlton, 512 U.S. 26, 35, 114 S. Ct. 2018, 2024, 129 L.

Ed. 2d 22, 31 (1994) (applying federal due process); United States v.

Hemme, 476 U.S. 558, 571, 106 S. Ct. 2071, 2079, 90 L. Ed. 2d 538,

550 (1986) (same); United States v. Darusmont, 449 U.S. 292, 297–99,
 42

101 S. Ct. 549, 552–53, 66 L. Ed. 2d 513, 517–19 (1981) (same); Welch v.

Henry, 305 U.S. 134, 149–51, 59 S. Ct. 121, 126–27, 83 L. Ed. 87, 94–95

(1938) (same); United States v. Hudson, 299 U.S. 498, 500–01, 57 S. Ct.

309, 310, 81 L. Ed. 370, 372 (1937) (same); Shell Oil Co. v. Bair, 417

N.W.2d 425, 431–32 (Iowa 1987) (same); City Nat’l Bank of Clinton v.

Iowa State Tax Comm’n, 251 Iowa 603, 608–09, 102 N.W.2d 381, 384

(1960) (applying state and federal due process principles).

The most recent Supreme Court decision to address the

retroactivity of a tax is Carlton. In Carlton, a taxpayer relied on the Tax

Reform Act of 1986 to exclude from federal estate taxation one-half of the

proceeds from the sale of securities to an Employee Stock Ownership

Plan. Carlton, 512 U.S. at 28, 114 S. Ct. at 2020–21, 129 L. Ed. 2d at

26–27. In January 1987, after the taxpayer made the sale, the Internal

Revenue Service (IRS) issued a notice stating it would not recognize such

a deduction unless the decedent directly owned the stock immediately

prior to his or her death. Id. at 29, 114 S. Ct. at 2021, 129 L. Ed. 2d at

27. In December 1987 Congress enacted a statute codifying the

substance of the IRS notice. Id. The IRS then disallowed the deduction

because the decedent did not own the stock immediately before her

death. Id. The taxpayer paid the deficiency, filed a claim for a refund,

and instituted a suit for refund arguing the government’s retroactive use

of the December 1987 law to deny a deduction available to the taxpayer

when the taxpayer made the sale violated the Due Process Clause of the

Fifth Amendment to the United States Constitution. Id.

Prior to Carlton, the Supreme Court determined the validity of a

retroactive tax statute under the Due Process Clause by determining

whether its “ ‘retroactive application is so harsh and oppressive as to

transgress the constitutional limitation.’ ” Id. at 30, 114 S. Ct. at 2022,
 43

129 L. Ed. 2d at 28 (quoting Welch, 305 U.S. at 147, 59 S. Ct. at 126, 83

L. Ed. at 93). In applying the harsh and oppressive test, the Ninth

Circuit in Carlton, considered two factors. Carlton v. United States, 972

F.2d 1051, 1059 (9th Cir. 1992), rev’d, 512 U.S. 26 (1994). These factors

are “[f]irst, did the taxpayer have actual or constructive notice that the

tax statute would be retroactively amended? Second, did the taxpayer

rely to his detriment on the pre-amendment tax statute, and was such

reliance reasonable?” Id. A third factor used by courts prior to the

Supreme Court’s decision in Carlton in determining whether a retroactive

application of a tax meets due process requirements was whether

Congress acted promptly and established a modest period of

retroactivity. Darusmont, 449 U.S. at 296–97, 101 S. Ct. at 551–52, 66

L. Ed. 2d at 517.

After applying the factors of the harsh and oppressive test, the

Ninth Circuit found the retroactive application of the tax

unconstitutional. Carlton, 972 F.2d at 1062. In reversing the Ninth

Circuit, the Supreme Court abandoned the factors of reliance and notice

previously used by the Court in applying the harsh and oppressive test.

Carlton, 512 U.S. at 30–34, 114 S. Ct. at 2022–24, 129 L. Ed. 2d at 28–

31. In place of the factors the Supreme Court previously applied under

the harsh and oppressive test, the Court held, when dealing with

economic policy, the harsh and oppressive test should not differ from the

prohibition against arbitrary and irrational legislation. Id. at 30, 114

S. Ct. at 2022, 129 L. Ed. 2d at 28. Thus, the Court held as long as a

retroactive tax is supported by a legitimate legislative purpose furthered

by rational means, the retroactive application will not violate the Federal

Due Process Clause. Id. at 30–31, 114 S. Ct. at 2022, 129 L. Ed. 2d at

28.
 44

In Carlton, when deciding whether the retroactive application of a

tax is supported by a legitimate legislative purpose furthered by rational

means, the Supreme Court considered two factors. First, the Supreme

Court determined whether the legislative body’s purpose in enacting the

retroactive application of the statute was illegitimate or arbitrary. Id. at

32, 114 S. Ct. at 2023, 129 L. Ed. 2d at 29. It is sufficient “if there exists

some legitimate purpose underlying the retroactivity provision.” Id. at

37, 114 S. Ct. at 2025, 129 L. Ed. 2d at 32 (O’Connor, J., concurring).

The Supreme Court concluded the retroactive application of the tax was

neither illegitimate nor arbitrary. Id. at 32, 114 S. Ct. at 2023, 129 L.

Ed. 2d at 29. The Court determined Congress had a legitimate purpose

in correcting a mistake it made when it enacted the Tax Reform Act of

1986. Id. A failure to rectify the mistake would lead to billions of dollars

in lost revenue for the government, and innocent taxpayers would have

to help replenish the federal coffers if the mistake was not rectified

retroactively. Id. at 31–32, 114 S. Ct. at 2022–23, 129 L. Ed. 2d at 29.

Second, the Supreme Court determined whether the legislature

“acted promptly and established only a modest period of retroactivity.”

Id. at 32, 114 S. Ct. at 2023, 129 L. Ed. 2d at 29. If the legislature acted

promptly and established only a modest period of retroactivity, the

statute would comport with due process. Id. The Supreme Court

determined the retroactivity of the tax in question extended for a modest

period of slightly greater than one year. Id. at 33, 114 S. Ct. at 2023,

129 L. Ed. 2d at 30. Therefore, the Supreme Court upheld the

retroactive application of the tax against a due process challenge. Id. at

35, 114 S. Ct. at 2024, 129 L. Ed. 2d at 31.

Following the Carlton decision, legal scholars agreed that, in order

for the retroactive application of a tax to pass constitutional muster
 45

under the Due Process Clause, a legislative body’s purpose in enacting

the retroactive application of a tax statute can be neither illegitimate nor

arbitrary, and the statute must possess a modest period of retroactivity.

See, e.g., Charles H. Koch, Jr., 3 Administrative Law & Practice

§ 12.34[11] (2d ed. 1997); Pat Castellano, Retroactively Taxing Done

Deals: Are There Limits?, 43 U. Kan. L. Rev. 417, 438 (1995); Lynn A.

Gandhi, Taxation, 53 Wayne L. Rev. 599, 607 n.70 (2007); Robert R.

Gunning, Back From the Dead: The Resurgence of Due Process Challenges

to Retroactive Tax Legislation, 47 Duq. L. Rev. 291, 293–94 (2009); Leo P.

Martinez, Of Fairness and Might: The Limits of Sovereign Power to Tax

After Winstar, 28 Ariz. St. L.J. 1193, 1208–09 (1996); Kaiponanea T.

Matsumura, Reaching Backward While Looking Forward: The Retroactive

Effect of California’s Domestic Partner Rights and Responsibilities Act, 54

UCLA L. Rev. 185, 203 (2006); Michael J. Phillips, The Slow Return of

Economic Substantive Due Process, 49 Syracuse L. Rev. 917, 964 n.306

(1999); Monica Risam, Retroactive Reinstatement of Top Federal Estate

Tax Rates Is Constitutional: Kane v. United States, 51 Tax Law. 481, 485

(1998).

Other courts have passed on the constitutionality of a retroactive

tax statute since the Supreme Court’s decision in Carlton. These courts

have applied the two-part Carlton test. See, e.g., Quarty v. United States,

170 F.3d 961, 965–68 (9th Cir. 1999) (upholding a retroactive tax by

finding an eight-month period of retroactivity to be a modest period of

retroactivity); Kitt v. United States, 277 F.3d 1330, 1334–35 (Fed. Cir.

2002) (upholding a retroactive tax by finding a seven-month period of

retroactivity to be a modest period of retroactivity); Kane v. United States,

942 F. Supp. 233, 234 (E.D. Pa. 1996) (upholding a retroactive tax by

finding an eight-month period of retroactivity to be a modest period of
 46

retroactivity); Enter. Leasing Co. of Phoenix v. Ariz. Dep’t of Revenue, 211

P.3d 1, 5–7 (Ariz. Ct. App. 2008) (upholding a retroactive tax by finding a

one-month period of retroactivity to be a modest period of retroactivity);

Gardens at W. Maui Vacation Club v. County of Maui, 978 P.2d 772, 782–

83 (Haw. 1999) (upholding a retroactive tax by finding a six-month period

of retroactivity to be a modest period of retroactivity); Rivers v. State, 490

S.E.2d 261, 264–65 (S.C. 1997) (holding a retroactive tax of at least two

to three years is not a modest period of retroactivity; therefore, the

statute’s retroactivity violates state and federal due process).

Prior to the Supreme Court’s decision in Carlton, this court had

two occasions to look at the retroactivity of a tax statute. The first was

City National Bank of Clinton. There, a taxpayer asked this court to

determine the constitutionality of the retroactive application of a tax law

regarding capital gains. City Nat’l Bank of Clinton, 251 Iowa at 605, 102

N.W.2d at 382. The taxpayer claimed the retroactive application of the

statute violated the Due Process Clauses of both the United States and

Iowa Constitutions. Id. at 607, 102 N.W.2d at 383. In deciding

otherwise, this court applied a two-factor test under both Constitutions.

Id. at 608–09, 102 N.W.2d at 383–84. The first factor considered by this

court in determining if the retroactive application of the statute violated

due process was whether its retroactivity would be “harsh and

oppressive.” Id. at 608, 102 N.W.2d at 384. In using this factor, this

court applied the federal due process standard used by the Supreme

Court at the time. See, e.g., Welch, 305 U.S. at 147, 59 S. Ct. at 125–26,

83 L. Ed. at 93.

The second factor this court considered in City National Bank of

Clinton, when determining if the retroactive application of the statute

violated due process, was the period of retroactivity. City Nat’l Bank of
 47

Clinton, 251 Iowa at 608–09, 102 N.W.2d at 384. Consideration of the

period of retroactivity is the same as the second factor used by the

Supreme Court in Carlton. Carlton, 512 U.S. at 32–33, 114 S. Ct. at

2023, 129 L. Ed. 2d at 29–30. In applying this factor under the Iowa

Constitution, this court stated the period of retroactivity should extend

“no further than two years, or up to the adjournment of the last previous

legislative session.” City Nat’l Bank of Clinton, 251 Iowa at 608–09, 102

N.W.2d at 384. This limitation on retroactivity prevents the legislature

from enacting a tax that a prior legislature did not have the political will

to enact. See Iowa Code § 2.2 (2007) (stating a regular session of the

general assembly lasts for two years with the session beginning in the

odd-numbered year).

The other case decided by this court dealing with the retroactivity

of a tax statute was Shell Oil Co. There, a taxpayer claimed the

retroactive application of a tax law dealing with the deductibility of a

windfall profit tax violated the Federal Constitution’s Due Process

Clause. Shell Oil Co., 417 N.W.2d at 430. In Shell Oil Co., this court

reaffirmed the two-factor test it applied in City National Bank of Clinton

and held the retroactive application of the tax did not violate due

process. Id. at 431–32.

I believe the proper test to determine if a retroactive tax meets the

due process requirements of the Federal and State Constitutions is

whether the retroactive application of the tax statute is supported by a

legitimate legislative purpose furthered by rational means. I also believe

the two factors used by the Supreme Court in Carlton is the proper

analysis to determine if the retroactive application of the statute is

supported by a legitimate legislative purpose furthered by rational

means. The first factor requires the court to determine whether the
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legislative body’s purpose in enacting the retroactive application of the

statute was illegitimate or arbitrary. The second factor requires the court

to determine whether the legislature enacted only a modest period of

retroactivity. Labeling the tax as a tax enacted by a curative statute does

not change this analysis.

I agree with the majority’s analysis that the enactment of Iowa

Code section 477A.7(5) is supported by a legitimate legislative purpose

furthered by rational means. The majority, however, stops its analysis of

the constitutionality of the statute at this point by labeling the tax as a

tax authorized by a curative statute. Here, the majority and I part ways.

In determining the constitutionality of section 477A.7(5), the court must

also examine the period of retroactivity to determine if the tax violates

substantive due process under the Federal and State Constitutions.

Under a federal constitutional analysis, the modest period of

retroactivity does not have a bright-line rule. Justice O’Connor

suggested in her concurring opinion that “[a] period of retroactivity longer

than the year preceding the legislative session in which the law was

enacted would raise, in [her] view, serious constitutional questions.”

Carlton, 512 U.S. at 38, 114 S. Ct. at 2026, 129 L. Ed. 2d at 33

(O’Connor, J., concurring). Justice Scalia, in his concurring opinion with

Justice Thomas joining, urged abandonment of the modest-period-of-

retroactivity factor and proposed the Court should consider the

taxpayer’s reliance on the existing law as the second factor. Id. at 40,

114 S. Ct. at 2026–27, 129 L. Ed. 2d at 34 (Scalia, J., concurring).

However, the majority of the Court applied the modest-period-of-

retroactivity factor, but did not specify a certain period of retroactivity

that would comport with due process under the Federal Constitution. Id.

at 32–33, 114 S. Ct. at 2023, 129 L. Ed. 2d at 29–30. Rather than
 49

specifying a specific period of retroactivity, the majority cited its prior

decisions holding that a modest retroactivity period is “ ‘customary

congressional practice’ ” and that a retroactive application of slightly

greater than one year will not violate the Federal Due Process Clause. Id.

(quoting Darusmont, 449 U.S. at 296–97, 101 S. Ct. at 552, 66 L. Ed. 2d

at 517).

The Supreme Court has upheld retroactive federal tax laws against

federal due process challenges when the period of retroactivity was less

than fourteen months. See id. at 28–29, 114 S. Ct. at 2021, 129

L. Ed. 2d at 26–27 (upholding a fourteen-month retroactive federal tax

law against a due process challenge); Hemme, 476 U.S. at 562, 106 S. Ct.

at 2074–75, 90 L. Ed. 2d at 544–45 (upholding a four-month retroactive

federal tax law against a due process challenge); Darusmont, 449 U.S. at

294–95, 101 S. Ct. at 550–51, 66 L. Ed. 2d at 516 (upholding a ten-

month retroactive federal tax law against a due process challenge);

Hudson, 299 U.S. at 501, 57 S. Ct. at 310, 81 L. Ed. at 372 (upholding a

one-month retroactive federal tax law against a due process challenge).

The Supreme Court has also upheld a retroactive state tax law against a

due process challenge that reached back two years. Welch, 305 U.S. at

141–42, 59 S. Ct. at 123, 83 L. Ed. at 90. There, the Supreme Court

emphasized that the Wisconsin legislature met biannually and passed its

curative act “at the first opportunity after the tax year in which the

income was received.” Id. at 150–51, 59 S. Ct. at 127, 83 L. Ed. at 95.

Under the Iowa Constitution, this court has developed a bright-line

rule, consistent with Justice O’Connor’s concurring opinion in Carlton,

for the modest period a legislature can apply a retroactive tax. In City

National Bank of Clinton, this court applied a state due process analysis

and held that for a retroactive tax to be valid, the period of retroactivity
 50

should extend “no further than two years, or up to the adjournment of

the last previous legislative session.” City Nat’l Bank of Clinton, 251 Iowa

at 608, 102 N.W.2d at 384. I believe under an Iowa constitutional due

process analysis, this court should continue to apply this bright-line rule

because this limitation on retroactivity prevents the legislature from

enacting a tax that a prior legislature did not have the political will to

enact.

Because this court has held the Iowa Constitution’s due process

clause has a bright-line rule as to what constitutes a modest period of

retroactivity, I would analyze the constitutionality of section 477A.7(5)

under the due process clause of the Iowa Constitution. Although the

legislature acted promptly in enacting section 477A.7(5) after this court

announced its decision in Kragnes, the legislature did not include a

period of retroactivity within the bright-line rule established in City

National Bank of Clinton. In fact, the legislature chose to give section

477A.7(5) an unfettered period of retroactivity. See Iowa Code

§ 477A.7(5). This unlimited period of retroactivity far exceeds the bright-

line rule that the period of retroactivity should extend “no further than

two years, or up to the adjournment of the last previous legislative

session.” City Nat’l Bank of Clinton, 251 Iowa at 608, 102 N.W.2d at 384.

Therefore, I would hold, separately and independently from a federal due

process analysis and in the exercise of this court’s exclusive prerogative

to determine the constitutionality of an Iowa statute under the Iowa

Constitution, that section 477A.7(5)’s unlimited period of retroactivity

violates the due process clause contained in article I, section 9, of the

Iowa Constitution.

However, I would not end the inquiry here. In construing a statute

the court’s ultimate goal is to ascertain and, if possible, give effect to the
 51

intention of the legislature. Janson v. Fulton, 162 N.W.2d 438, 442 (Iowa

1968). Additionally, it is the court’s duty in construing a statute to

preserve it and render it consistent with the state constitution, if

possible. Hines v. Ill. Cent. Gulf R.R., 330 N.W.2d 284, 290 (Iowa 1983).

It is clear that when the legislature enacted section 477A.7(5), it

intended to retroactively authorize the collection and retention of a cable

franchise tax, including the fees collected in excess of the municipality’s

reasonable costs of inspecting, supervising, or otherwise regulating the

franchise. Accordingly, if I were to hold section 477A.7(5)

unconstitutional because of its unlimited period of retroactivity, I would

be defeating the legislature’s clear intent. Therefore, rather than holding

the statute entirely unconstitutional, I believe the proper remedy would

be to hold unconstitutional only that part of the retroactive period that is

inconsistent with the due process principles contained in this dissent.

See Peterson v. Comm’r of Revenue, 825 N.E.2d 1029, 1037–41 (Mass.

2005) (giving a statute limited retroactivity after the court held it could

not allow the period of retroactivity as enacted by the legislature).

Consequently, I would hold section 477A.7(5) can be applied

retroactively, but its period of retroactivity shall not extend further than

two years, or up to the adjournment of the last legislative session.

The last legislative session prior to the enactment of section

477A.7(5), ended May 3, 2006. See Iowa Sen. J., 81st G.A., Reg. Sess.,

at 1090 (2006); Iowa H.J., 81st G.A., Reg. Sess., at 1755 (2006). Thus,

under my analysis, the city could collect cable franchise taxes beginning

on May 3, 2006. However, I believe any retention of cable franchise taxes

prior to that date violates the due process clause contained in article I,

section 9 of the Iowa Constitution.
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The substantive component of the Due Process Clause “bars

certain arbitrary, wrongful government actions ‘regardless of the fairness

of the procedures used to implement them.’ ” Zinermon v. Burch, 494

U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100, 113 (1990)

(quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88

L. Ed. 2d 662, 668 (1986)). By not applying the proper due process

analysis, the majority permits municipalities to collect unauthorized

taxes and legitimize them later, without temporal limitation. The

majority’s holding under this factual situation gives credence to Justice

Scalia’s notion that substantive due process is an oxymoron. Carlton,

512 U.S. at 39, 114 S. Ct. at 2026, 129 L. Ed. 2d at 33 (Scalia, J.,

concurring).

Hecht, J., joins this dissent.