               IN THE SUPREME COURT OF IOWA
                            No. 52 / 07–0172

                          Filed August 29, 2008


MONIQUE RHODEN and CURT W. CANFIELD,
on behalf of themselves and others Similarly Situated,

      Appellees,

vs.

THE CITY OF DAVENPORT, IOWA,

      Appellant.


      Appeal from the Iowa District Court for Scott County, Gary D.

McKenrick, Judge.



      Decision of the district court granting summary judgment and

certifying the class action is reversed. REVERSED.



      Craig A. Levien and Peter J. Thill of Betty, Neuman & McMahon,

P.L.C., Davenport, for appellant.


      Thomas D. Waterman and Richard A. Davidson of Lane &

Waterman, LLP, Davenport, and Catherine Z. Cartee of Cartee & Clausen

Law Firm, P.C., Davenport, for appellees.
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APPEL, Justice.

      In this case, plaintiffs brought a class action challenging the

validity   of   the   Davenport   Automated   Traffic   Enforcement   (ATE)

ordinance.      See Davenport Mun. Code § 10.16.070 (2005).       On cross

motions for summary judgment, the district court ruled that the

Davenport ATE ordinance was preempted by state traffic regulations and

therefore was invalid. The district court also held that the City was not

entitled to summary judgment on its claim that the individual plaintiffs

who paid the civil penalty voluntarily waived their right to recover against

the City. In a subsequent order, the district court certified the class and

ruled that plaintiffs who had paid the civil fine were entitled to recover

against the City.      We granted the City’s application for interlocutory

review.

      In City of Davenport v. Seymour, 755 N.W.2d 533 (2008), we

considered whether the Davenport ATE ordinance is impliedly preempted

by the same statutes cited by the plaintiffs in this case—Iowa Code

chapter 321 and sections 364.22(5)(b), 805.6, and 805.8A. In Seymour,

we held that the Davenport ATE ordinance was not preempted by the

cited state law.        Although the plaintiffs here characterize their

preemption analysis as one of express, not implied, preemption, this has

no effect on the outcome of this case.     Implied preemption analysis is

employed only where the legislature fails to expressly preempt local

action.    Nothing in either chapter 321 or sections 364.22(5)(b), 805.6,

and 805.8A expressly preempts municipalities from creating civil money

penalties for traffic infractions.   Thus the Davenport ATE ordinance is

not impliedly or expressly preempted by the cited state law.
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       In addition to the claims raised in Seymour, the plaintiffs allege

that   the   Davenport   ATE   ordinance   is   preempted   because    it   is

inconsistent with Iowa Code sections 805.9, 805.12, 602.8106(1), and

364.22(6). Sections 805.9, 805.12, and 602.8106(1) concern the proper

procedure for collecting fines for criminal traffic violations.   This court

concluded in Seymour, however, that the Davenport ATE ordinance

provides for a civil violation that is parallel to and not preempted by the

criminal scheme outlined in Iowa Code chapter 321.           Any perceived

inconsistency with sections 805.9, 805.12, and 602.8106(1), therefore,

does not defeat the Davenport ATE ordinance.

       Iowa Code section 364.22(6) concerns the proper procedure for

collecting civil penalties for municipal infractions. That section provides

in relevant part, “All penalties or forfeitures collected by the court for

municipal infractions shall be remitted to the city in the same manner as

fines and forfeitures are remitted for criminal violations under section

602.8106.” Iowa Code § 364.22(6) (emphasis added). Section 602.8106

requires fines to be collected by the clerk of court. Ninety percent of the

fine is thereafter remitted to the city which prosecuted the action. Id.

§ 364.22.    Plaintiffs contend that the Davenport ATE ordinance is

inconsistent with this requirement because it provides that civil fines

under the ordinance are payable to the City at the City’s finance

department. Davenport Mun. Code § 10.16.070(D)(1)–(2).

       Assuming that section 364.22 applies to the Davenport ATE

ordinance, we nevertheless conclude that the two provisions are not

“irreconcilable.” City of Des Moines v. Gruen, 457 N.W.2d 340, 342 (Iowa

1990). Section 364.22(6) provides that all civil penalties collected by the

court be payable to the clerk of court and then remitted to the city. The
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Davenport ATE ordinance, alternatively, requires only that payments for

unchallenged violations, which do not involve the court, be payable to

the City’s finance department. As a result, no conflict exists between the

two provisions and the Davenport ATE ordinance is not preempted by

section 364.22(6).

      For the reasons expressed above and in Seymour, the district court

order granting summary judgment to the plaintiffs on the ground that

the Davenport ATE ordinance is preempted by state traffic and

enforcement regulations is reversed. In light of this disposition, it is not

necessary to address the other issues raised in this appeal.

      REVERSED.

      All justices concur except Wiggins, J., who dissents and Baker, J.,

who takes no part.
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                              #52/07–0172, Rhoden v. City of Davenport

WIGGINS, Justice (dissenting).

      I dissent for the reasons stated in my dissent in City of Davenport

v. Seymour, 755 N.W.2d 533, 545 (Iowa 2008) (Wiggins, J., dissenting).
