                 IN THE SUPREME COURT OF IOWA
                               No. 07–1855

                             Filed June 4, 2010


ROBERT P. KLEIMAN, On Behalf of
Himself and All Others Similarly Situated,

       Appellee,

vs.

CITY OF WATERLOO, IOWA,

       Appellant.


       Appeal from the Iowa District Court for Black Hawk County, Jon C.

Fister, Judge.



       The city appeals from a district court ruling denying its motion for

summary judgment.       DISTRICT COURT DECISION REVERSED AND

CASE REMANDED.



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

Des Moines, for appellant.


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

Davidson of Lane & Waterman LLP, Davenport, for appellee Kleiman.



       Terrence L. Timmins, Des Moines, for amicus curiae Iowa League

of Cities.

       Bruce H. Stoltze of Stoltze & Updegraff, P.C., Des Moines, and

Brad A. Schroeder of Hartung & Schroeder LLP, Des Moines, for amicus

curiae Iowa Trial Lawyers Association.
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PER CURIAM.

       Appellee, Robert Kleiman, filed this class action against the

appellant, City of Waterloo, for refunds of franchise fees paid on cable

television services, claiming these fees were illegally exacted by the city.

He sought certification of the class, judgment against the city in an

amount sufficient to compensate him and the other class members for

the illegal tax and interest, attorney fees, a declaration that the franchise

fees are illegal and void, an injunction stopping the city from enforcing

the franchise fees in the future, and other proper relief.             The district

court certified the class.

       The city filed a motion for summary judgment claiming Iowa Code

section 477A.7(5) (Supp. 2007) relieved it of any liability.               Kleiman

acknowledged that section 477A.7(5) prospectively legalized the city’s

franchise fees, but resisted the retroactive application of the law,

claiming it was unconstitutional under the Due Process Clauses of the

Federal and State Constitutions.         The district court concluded section

477A.7(5) was not a curative act, and held this provision violated the

plaintiffs’ due process rights because it impaired their vested rights.

Therefore, the court denied the city’s motion for summary judgment. The

city filed an application for interlocutory appeal, which we granted. 1

       On appeal, the parties raise the identical issues addressed in Zaber

v. City of Dubuque, ___ N.W.2d ___ (Iowa 2010), a decision we also file

today. Upon our consideration of these issues and for the reasons set

forth in our opinion in Zaber, we hold that section 477A.7(5) does not

violate the Due Process Clause of the Fifth Amendment to the United


       1This case was combined for appeal with Curtis v. City of Bettendorf, No. 07–
1856; Lindstrom v. City of Des Moines, No. 07–1641; and Zaber v. City of Dubuque, No.
07–1819. The clerk docketed the combined appeals under No. 07–1641.
                                         3

States Constitution or the due process clause of article I, section 9 of the

Iowa Constitution.   Because the legislature has ratified the city’s past

assessment and collection of franchise fees, the plaintiffs are not entitled

to a refund of those fees.     Therefore, we reverse the decision of the

district court and remand this case to the district court for entry of

summary judgment in favor of the city.

      DISTRICT       COURT     DECISION       REVERSED       AND      CASE

REMANDED.

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

      This opinion shall not be published.
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                                       #07–1855, Kleiman v. City of Waterloo

WIGGINS, Justice (dissenting).

      I dissent for the reasons stated in my dissent in Zaber v. City of

Dubuque, ___ N.W.2d ___, ___ (Iowa 2010) (Wiggins, J., dissenting).

      Hecht, J., joins this dissent.
