                 IN THE SUPREME COURT OF IOWA
                               No. 17–1489

                          Filed August 31, 2018


REUVEN WEIZBERG,          DAVID     PETER     VENG-PEDERSEN,         JACOB
PATRICK DAGEL,

      Appellees,

vs.

CITY OF DES MOINES, IOWA,

      Appellant,

and

GATSO USA, INC.,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.



      Defendant city appeals district court’s grant of plaintiffs’ motion for

summary judgment, and plaintiffs cross-appeal grant of defendant city’s
motion to dismiss, defendant company’s motion for summary judgment,

and the district court’s class certification.      AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.



      Michelle     Mackel-Wiederanders,      Assistant     City    Attorney,

Des Moines, for appellant.



      James C. Larew of Larew Law Office, Iowa City, for appellees

Reuven Weizberg, David Peter Veng-Pedersen, and Jacob Patrick Dagel.
                                    2

      Paul D. Burns and Laura M. Hyer of Bradley & Riley, PC,

Iowa City, for appellee Gatso USA, Inc.
                                     3

APPEL, Justice.

      In this companion case to Behm v. City of Cedar Rapids, ___

N.W.2d ___ (Iowa 2018), and Leaf v. City of Cedar Rapids, ___ N.W.2d ___

(Iowa 2018), decided today, we consider challenges to an automated

traffic enforcement (ATE) program implemented by the City of Des

Moines (the City) and its private contractor, Gatso USA, Inc. (Gatso).

      The plaintiffs challenged the Des Moines ATE program on a

number of grounds. The plaintiffs claimed that the ATE program violated

equal protection, due process, and privileges and immunities clauses of

the Iowa Constitution. The plaintiffs further argued that the ATE system

was invalid because of preemption by state and local law and unlawful

delegation of governmental duties.       Because of the legal defects in the

ATE system, the plaintiffs asserted the defendants were unjustly

enriched. The plaintiffs sought class-action certification. The plaintiffs

asked for declaratory and injunctive relief as well as damages.

      On the City’s motion to dismiss, the district court dismissed the

plaintiffs’ claims based upon preemption; unlawful delegation of

governmental    powers;   equal   protection,    substantive   due   process,

privileges and immunities under the Iowa Constitution; and unjust

enrichment.    The court refused to grant the motion to dismiss the

plaintiffs’ procedural due process claim.       The court at the same time

granted Gatso’s motion for summary judgment on all of the plaintiffs’

claims.

      Later, the district court considered the remaining procedural due

process claim in the case on cross-motions for summary judgment. The

court ruled that the City’s ATE system as implemented violated

procedural due process.      The court also resurrected the previously

dismissed unjust enrichment claim and ruled the City was unjustly
                                        4

enriched. The court certified a class of vehicle owners who were cited for

violating the ATE ordinance, pursued an administrative challenge, but

did not request the City file a municipal infraction proceeding in district

court.

         The City appealed and the plaintiffs cross-appealed.

         For the reasons stated below, on the City’s appeal, we reverse the

district court’s determination that the ATE system as implemented by the

City violated procedural due process.

         On the plaintiffs’ cross-appeal, we affirm the district court’s grant

of the motion to dismiss on grounds of preemption. We also affirm the

district court’s grant of summary judgment to Gatso on the plaintiff’s

unjust enrichment claims.

         We reverse, however, the district court’s dismissal of the plaintiffs’

equal protection, substantive due process, and privileges and immunities

claims. We reverse the district court’s holding that there is no action for

damages under the Iowa Constitution.

         In light of our rulings, we vacate the district court’s order on

unjust enrichment against the City and the district court’s order on class

certification.

         We remand the case for further proceedings consistent with this

opinion.

         I. Factual and Procedural Summary.

         A. The ATE Ordinance.         In 2011, the City enacted an ATE

ordinance (the ordinance).       Des Moines, Iowa, Mun. Code § 114-243

(2015).     The ordinance generally recites the power of municipalities to

implement ATE systems and to hire private contractors to implement

them.      Id. § 114-243(a).    The ordinance provides that although the

private contractor will provide video images to the police department for
                                       5

review, the police department will determine which vehicle owners are in

violation of the City’s traffic control ordinances and therefore who will

receive a notice of violation for the offense. Id.

      Pursuant to the ordinance, the City entered into a contract with

Gatso.    Under the contract, Gatso agreed to install, operate, and

maintain fixed speed systems in accordance with standard installation

practices at locations the City desired.             Gatso agreed to perform

maintenance of the ATE system, including testing the camera settings

and operation.      The contract further provided that Gatso prepare

violation packages and forward them to the police department for review.

After approval, Gatso agreed to send citations by mail to vehicle owners

and agreed to establish a toll-free help desk telephone number for vehicle

owners to discuss citations and make payments.

      The ordinance establishes civil penalties for speeding violations.

Id. § 114-243(c). The vehicle owner is liable for the civil penalty unless

the vehicle owner shows that a stolen vehicle report was made on the

vehicle encompassing the time period in question. Id. § 114-243(c)(3).

      When a person receives a traffic citation, the ordinance establishes

a procedure for disputing the citation by requesting that the City issue a

municipal infraction citation and proceed to have the matter determined

in district court. Id. § 114-243(d). Specifically, the ordinance provided,

      (d) Penalty and appeal.

          ....

           (2) A recipient of an automated traffic citation may
               dispute the citation by requesting an issuance of a
               municipal infraction citation by the police
               department. Such request will result in a required
               court appearance by the recipient and in the
               scheduling of a trial before a judge or magistrate at
               the Polk County Courthouse. The issuance of a
               municipal infraction citation will cause the
                                      6
                imposition of state mandated court costs to be
                added to the amount of the violation in the event of
                a guilty finding by the court.

             (3) If a recipient of an automated traffic citation does
                 not pay the civil penalty by the stated due date or
                 request a trial before a judge or magistrate, a
                 municipal infraction citation will be issued to the
                 recipient by certified mail from the police
                 department. Said municipal infraction citation will
                 result in a mandatory court appearance by the
                 recipient as well as imposition of state mandated
                 court costs if a finding of guilty is made by the
                 court.

Id. § 114-243(d)(2)–(3).

       B. Iowa Department of Transportation Evaluation and Order.

The utilization of ATE systems by Iowa municipalities caused the Iowa

Department of Transportation (IDOT) to promulgate rules related to their

use.    Iowa Admin. Code ch. 761—144.              Pursuant to the rules,

municipalities utilizing ATE systems were required to file reports on each

location with the IDOT. Id. r. 761—144.5(1). The IDOT then analyzed

the reports to determine whether to approve the ATE systems at the

locations.    Id. r. 761—144.5(3).        Further, municipalities were also

required to file annual reports evaluating the effectiveness of the ATE

system on improving traffic safety. Id. r. 761—144.7.

       The IDOT’s 2015 evaluation of the use of equipment by the City’s

ATE system at the I-235 location concluded that the City should remove

the equipment. According to the evaluation, the location “experiences a

low crash rate” while the number of speed citations were “extremely

high.” The evaluation order noted that under the IDOT’s administrative

rules, ATE systems “should only be considered in extremely limited

situations on interstate roads because they are the safest class of any

roadway in the state and they typically carry a significant amount of

non-familiar motorists.” Id. r. 761—144.4(1)(c).
                                        7

      The City appealed the evaluation. On appeal, the IDOT held that

“the data does not provide convincing evidence that this location is

unsafe for motorists and law enforcement conducting routine police

work.” The City continued the operation of the ATE equipment on I-235

and along with two other cities, filed an action challenging the authority

of IDOT to promulgate the rules.             In City of Des Moines v. Iowa

Department of Transportation, we recently held that the IDOT lacked

authority to promulgate its ATE rules. 911 N.W.2d 431, 434 (Iowa 2018).

      C. Plaintiffs Alleged ATE Violations.

      1. Weizberg.    Reuven Weizberg is a resident of New York State.

Weizberg is a musician who was in Des Moines for a performance.

Weizberg received three notices of violation arising from events generated

at the ATE system location on I-235 in May 2015.

      The front page of the notices of violation received by Weizberg

provided photos of the offending vehicle and license plate along with

information regarding the date and time of the alleged violation.               The

front page declares that the motor vehicle owner is liable for payment of

any penalty. The notice of violation declares that

      [f]ailure to pay the penalty or contest liability by the due date
      is an admission of liability and will result in this penalty
      being forwarded to collections and to the Iowa Income Tax
      Offset Program or for filing in state district court.

A due date is provided on the front page. A box is presented outlining

options for payment online, by mail, or by phone. There is no mention

on the front page of the citation regarding the right to request the filing of

a municipal infraction.

      On the back of the notices of violation the heading “TO CONTEST

THIS VIOLATION” appears.          Under the heading, the first sentence

declares,   “You   have   the   right   to    contest   this   violation   at   an
                                    8

administrative hearing or by mail.” The notices of violation further state,

“Before contesting your violation it is recommended that you review the

local ordinance, images and the actual recorded video of the infraction to

determine if you have a valid defense supporting dismissal of this

citation.” Then, the following language appears:

      Note: If the administrative hearing does not resolve the issue,
      a civil infraction (lawsuit) may be requested to be filed in
      state district court and a court hearing date will be
      scheduled. Additional costs including an $85.00 filing fee,
      and other court costs will be assessed if you are found liable
      or you pay the civil penalty before the court hearing date. If
      you fail to appear for the court hearing, you will be
      responsible for paying the fine and court costs. If you are
      found not liable, the fees will be paid by the city.
      Alternatively, you may request a civil infraction (lawsuit) in
      lieu of an administrative hearing.

      Beneath the section describing how to contest violations, two boxes

appear describing how to obtain an in-person administrative hearing or,

in the case of nonresidents, how to contest the violation by mail. Inside

the box describing how to obtain an administrative hearing, it again

states, “You must request such a hearing prior to the due date specified,”

and “[f]ailure to appear at this hearing will result in an automatic final

determination of liability.”
      Weizberg asked for and received administrative hearings by mail.

In all cases, he received a document indicating that an administrative

hearing had been held and stating, “IT IS ORDERED” that Weizberg was

liable for the civil penalty and that a “JUDGMENT TOTAL” of $65 had

been imposed. Further, the document declares, “Failure to pay the total

amount specified . . . will result in the possible imposition of the Iowa

Income Tax Offset Program, collection efforts and legal action.”

      The backside of the document provides payment information. In

the lower portion of the page is a section entitled “RIGHT OF APPEAL.”
                                      9

Here, the document reads, “If you want to appeal the Hearing Officer’s

decision, within 10 days of the date of this ruling you may request that a

civil infraction (lawsuit) be filed against you in Polk County District

Court.” Further, the document declares, “An $85.00 filing fee and other

court costs plus the fine amount will become a judgment against you if

the Court finds you liable for the violation.”

      On a document entitled “2nd and Final Notice” that Weizberg

received for one of the events, some text on the front states,

      As you have failed to pay or contest the Notice of Violation
      previously issued, the fine is now due. Failure to pay the
      civil fine may subject you to formal collection procedures and
      to the Iowa Income Tax Offset Program. Failure to appear for
      court hearings will result in judgment being issued against
      you and liens registered in Polk or Warren County.

On the back of the document, other text reads,

      Please be advised that you have exhausted all challenge
      options and this is a debt due and owing to the City of
      Des Moines. Failure to pay the fine immediately will subject
      you to formal collection procedures and the Iowa Income Tax
      Offset Program.

Despite the reference to “court hearings” on the front, this second notice

contains no information about any ability to challenge the fine, whether
by administrative process or by municipal infraction.

      Weizberg did not pay. No municipal infraction was filed.

      2. Veng-Pedersen. Waukee resident David Veng-Pedersen received

one citation in May of 2015.       Like Weizberg, he received a notice of

violation, requested an administrative hearing, and was found liable. He

did not pay the amount.

      3. Dagel. Jacob Patrick Dagel was not an original plaintiff to this

proceeding, but the district court added him as a party when it certified

the class in this case.   He received a notice of violation in September
                                       10

2016, requested an administrative hearing, and was found liable. Unlike

Weizberg and Veng-Pedersen, he paid the amount.

      D. District Court Proceedings.

      1. Petition.   Weizberg and Veng-Pedersen filed their petition in

district court on December 11, 2015. The petition named the City and

Gatso as defendants.

      In article I, count I of the petition, the plaintiffs sought a

declaratory judgment against the City. The plaintiffs asked the court to

declare that the ATE program “as implemented” by the City and Gatso

violated Iowa Code section 602.6101, which provides for “exclusive,

general, and original jurisdiction” in district court of all actions.   The

plaintiffs further claimed that the ATE program, “through its use of an

administrative process,” is irreconcilable with and preempted by Iowa

Code section 364.22(6), which relates to the procedures for processing

municipal infractions, and Iowa Code section 364.22(4), which requires

police officers, and not a private entity, issue civil citations.

      Article I, count I further asked the district court to declare that

“the ATE program described herein” violated the equal protection clause

and the privileges and immunities clause of the Iowa Constitution, article

I, section 6, because it infringed upon the fundamental right to travel.

Even if a fundamental right to travel was not involved, the plaintiffs

claimed there was no rational basis to have the cameras where they were

located.    Further, the ATE program violated equal protection and

privileges and immunities because it treated out-of-state residents

differently than in-state residents.

      The petition further sought a declaratory judgment that the ATE

program “utilized by” and “as applied” violated equal protection and
                                      11

privileges and immunities through the City’s use of a database, Nlets, 1

which excludes certain classes of license plate numbers from the

database, therefore effectively immunizing those vehicle owners from

ticketing by the system. Further, the plaintiffs sought a declaration that

the exclusion of government-owned vehicles from the database violated

state law provisions that narrowly limit the circumstances in which

government employees are exempt from prosecution under state traffic

laws. Additionally, the plaintiffs requested a declaratory judgment that

the use of certain technology that makes arbitrary distinctions for

vehicles without rear license plates is illegal.

      The petition asked for a declaration that the ATE program utilized

by the City “violates the Constitution of Iowa” by violating IDOT’s

administrative rules and regulations and the corresponding 2015

evaluation ordering the City to remove its equipment.

      The petition prayed for a declaration that the ATE program violated

the due process clause of the Iowa Constitution “due to the scheme’s

many failures.” The alleged due process failures included placement of

cameras without sufficient advertising to the public, placement of

cameras and radar at sites not correlated with significant public safety

issues, insufficient actual notice to cited vehicle owners of all applicable

defenses, and failure to direct cited vehicle owners to the district court as

opposed to administrative proceedings that are neither created or

described in the City’s ATE ordinance and are convened by untrained

hearing officers hired by and allied with the City.




      1National   Law Enforcement Telecommunications System (Nlets) is a law-
enforcement database maintained by the International Justice and Public Safety
Network. Nlets, https://www.nlets.org (last accessed July 25, 2018).
                                     12

      Finally, the plaintiffs sought a declaration that the ATE program

amounted to an unlawful delegation of police power from the City to

Gatso, a privately held for-profit corporation.

      In article II, count I of the petition brought against the City and

Gatso, the plaintiffs requested class certification.

      In count II, the plaintiffs asserted an action for damages for

violations of the Iowa Constitution against both the City and Gatso. With

respect to Gatso, the plaintiffs alleged that it “acted under the color of

law” in carrying out its responsibilities and perhaps even “help[ed] to

orchestrate” the unconstitutional ATE program.         The damages sought

were the amount of penalties paid, plus interest as allowed by law.

Plaintiffs further sought costs and attorney’s fees.

      In count III, the plaintiffs alleged that the City and Gatso were

unjustly enriched. The plaintiffs claimed that the City and Gatso had

collected millions of dollars based upon an unlawful ordinance.          In

particular,   the   plaintiffs   alleged   the    scheme   was   “decisively

unconstitutional” since March 17, 2015, when the IDOT determined that

there was no legitimate state interest in placing the camera at the I-235

location. Plaintiffs sought to recover fines actually paid, plus interest,

costs, and attorney’s fees.

      In count IV, the plaintiffs sought a temporary and permanent

injunctive order preventing the operation of the ATE program.           The

plaintiffs again repeated their request for damages.

      2. City’s motion to dismiss; Gatso’s motion for summary judgment.

The City quickly filed a motion to dismiss the petition.         Gatso also

quickly sought dismissal but framed its motion as one for summary

judgment.
                                     13

      In its resistance to Gatso’s motion for summary judgment, the

plaintiffs filed a number of exhibits. Included in the exhibits were two

affidavits   from   experts.    Northwestern     University    Professor     of

Transportation Engineering, Joseph Schofer, stated that based upon his

review, the City’s placement of a fixed camera at the location on I-235 “is

neither indicated by sound transportation policy nor beneficial to the

public in terms of improving highway safety.”

      The plaintiffs also submitted an affidavit from Carl Riechers, who

identified himself as a professional “engaged with the calibration and

certification of radio and avionics equipment for many years” and as a

person familiar with calibration and certification best practices.        As to

Riechers’ curriculum vitae, he simply stated that he held a bachelor of

science in electrical engineering from Michigan Technological University.

Riechers opined on issues related to the calibration of the City’s ATE

equipment. Riechers stated that he did not know what national standard

Gatso used to calibrate the ATE system.          Based on the documents,

Riechers opined that it was impossible to determine whether the

calibration considered the tilting of radar unit angles, which can result in

“exaggerated speed measurement for every single vehicle moving below

it.” According to Riechers, “it is impossible for Gatso to claim that its

fixed camera/radar units . . ., as implemented on I-235 Eastbound, are

accurate.”     Further,   Riechers   asserted,   “Gatso’s   calibration    and

certification protocols and documentation fail to meet the minimum

threshold of those calibration and certification standards applied to

radar technologies in the United States.”

      On July 25, 2016, the district court issued an order granting the

City’s motion to dismiss on all claims except the plaintiffs’ claim based
                                    14

on procedural due process.       The court granted Gatso’s motion for

summary judgment on all claims against it.

      With respect to the plaintiff’s procedural due process claim, the

district court noted that the City’s ordinance did not establish an

administrative procedure. The district court further found that a vehicle

owner was required to go through the administrative procedure to

challenge an alleged violation. The district court found that a mandatory

procedure not authorized by the ATE ordinance established a procedural

due process violation.

      With regard to the plaintiffs’ substantive due process claims, the

district court granted the City’s motion to dismiss. The court rejected

any notion that the ATE system infringed on a right to travel under

article I, section 9 of the Iowa Constitution. Applying a rational basis

test, the court ruled the City had a legitimate interest in enforcing the

speed limit within the city limits. Additionally, the district court noted

the City had an interest in not using law enforcement officers to

personally stop vehicles on the interstate system.

      With respect to the equal protection and privileges and immunities

claims, the district court noted it was undisputed that the ATE system

captures rear license plates, uses the Nlets database, and therefore does

not ticket government-owned vehicles and semi-trailer trucks. The court

granted the City’s motion to dismiss because it found the City could

rationally conclude that a system that photographs rear license plates

and uses the Nlets database provided the most cost-effective system.

      The district court also dismissed claims based on preemption by

other Iowa statutes and rules, specifically Iowa Code section 602.6101,

relating to the exclusive jurisdiction of district court, section 364.22(4),

requiring service of process for municipal infractions by specified means,
                                       15

and section 364.22(6), requiring trial on municipal infractions in the

same manner as small claims. The court found that the administrative

process used by the City was not irreconcilable with the statute and

therefore was not preempted.

      The district court further noted that the plaintiffs’ real claim

regarding the implementation of the ATE ordinance through the use of

an administrative procedure was not really one of preemption.          The

plaintiffs were arguing the administrative remedy was not authorized by

the ATE ordinance.       The court declared this claim was really a

procedural due process violation. The court thus dismissed the claims

based on preemption.

      On undue delegation, the district court noted that officers of the

Des Moines police department in fact approved every citation. While the

court noted the plaintiffs’ claim was that the review is cursory, the court

found that was a criticism of the police department and did not give rise

to an unlawful delegation claim.       The court concluded that the mere

mailing of notice was not an unlawful delegation of government

authority.   As a result, the court dismissed the plaintiffs’ unlawful

delegation claim.

      The district court next turned to the question of remedy. The court

concluded that no private damages remedy was available under the Iowa

Constitution. The court further concluded there was no private remedy

for violation of the IDOT decisions.

      The district court then evaluated the plaintiffs’ claim of unjust

enrichment. The court found that neither plaintiff in this case—at the

time only Weizberg and Veng-Pedersen—had paid the fine. As a result,

neither plaintiff could claim unjust enrichment. The court dismissed the

claim as to both the City and Gatso.
                                        16

      Along with the City’s motion to dismiss, the district court

considered Gatso’s motion for summary judgment.             The court granted

summary judgment on all claims against it.

      3. Motion for class certification and leave to amend to add

additional parties.      After the prior motions had been decided, the

plaintiffs moved for class certification on their remaining procedural due

process claim.      They also moved to add Dagel and Jill Elizabeth

Southworth as additional parties to their petition. On February 2, 2017,

the district court granted the plaintiffs’ motion for class certification and

granted the motion to amend the petition to add Dagel but not

Southworth as a party. The court declined to join Southworth as a party

because she received an ATE citation from a location different from the

other plaintiffs and because she simply paid the requested amount

without pursuing any kind of appeal.

      With respect to class certification, the district court also granted

the plaintiffs’ motion for class certification.       The court applied the

familiar rules under Iowa Rules of Civil Procedure 1.261 through 1.263.

The   district   court   found   that   the   plaintiffs   met   the   threshold

requirements of rule 1.261 regarding numerosity and impracticability,

that a class action would permit fair and equitable adjudication of the

controversy, and that the representatives would fairly and adequately

protect the interests of the class. The district court certified the class as

any vehicle owner from December 11, 2013, and until the present who

received a notice of violation “based upon a claim of speeding from one of

the speed cameras mounted at the I-235 eastbound location” and “who

appealed the decision, went through the administrative process, was

adjudicated liable and was ordered to pay a penalty.”
                                      17

      The City filed a rule 1.904(2) motion to modify the definition of the

class. The City sought to eliminate from the class any individual who

requested the issuance of a municipal infraction to be heard by the

district court. The City argued that when a party actually obtained the

process provided under Iowa Code section 364.22 related to municipal

infractions, there was no valid claim of a violation of procedural due

process.      The district court granted the City’s motion and revised the

class accordingly.

      4. Cross motions for summary judgment on remaining procedural

due process claim. After the class was certified, the City filed a motion

for summary judgment on the plaintiffs’ procedural due process claim.

The plaintiffs resisted and filed a cross-motion for summary judgment.

      On September 5, 2017, the district court granted summary

judgment in favor of the plaintiffs. The court first described the process

of municipal infractions, indicating that under the City’s municipal code

the City could begin the process by sending a “simple notice.”         If the

individual pays the simple notice, then the violation is admitted and no

further action is needed. If the individual either chooses to contest the

violation or fails to pay, in order to proceed the City must file a municipal

infraction in state district court.    The court then explained that the

Des Moines ATE ordinance states that individuals may dispute their

automated traffic citation by requesting the filing of a municipal

infraction.

      The court noted the City argued that plaintiffs had two options to

contest the notice of violation, either an administrative hearing or a civil

infraction.      After an administrative hearing, the City maintained,

plaintiffs could still seek a municipal infraction.   The plaintiffs argued

they were given only the administrative process option, and this process
                                     18

was not optional. None of the forms they were given gave plaintiffs the

option to check a box indicating they wished to proceed with a municipal

infraction, and when calling the number on the notice of violation, Gatso

employees did not provide information about a municipal infraction. The

court noted the plaintiffs pointed to evidence in the record of Gatso’s call-

center training and staff informational materials that told employees how

to instruct callers in the administrative process, and nowhere was it

explained how to begin a municipal infraction. Further, the court found

the City did not dispute that neither the forms nor Gatso employees

provided plaintiffs a way to initiate a municipal infraction.

      The district court held that the plaintiffs had a protected property

interest in being free from the imposition of irrational monetary fines. All

class members received a notice in the form of a notice of violation. The

court explained it was unnecessary to balance the interests of the parties

involved   and   the   risk   of   erroneous    deprivation     because   the

administrative hearing process failed to conform to the process enacted

by the city council and the municipal infraction process provided by state

statute. The court stressed cities are bound by both state law and their

own charters and codes. Not only does the City’s failure to abide by its

own ordinances render its action improper, but also failure to follow

these procedures can violate due process when depriving someone of a

protected liberty or property interest.    See Hancock v. City Council of

Davenport, 392 N.W.2d 472, 474 (Iowa 1986).

      The district court noted that nothing prevented the City from

instituting informal resolution mechanisms, but its municipal code did

not provide for an administrative hearing for that purpose.        The court

concluded the City could not substitute the process guaranteed by its

municipal code without amending the ordinance.
                                     19

      E. Appeal and Cross-Appeal.          The City appealed the district

court’s September 5, 2017 order granting summary judgment to the

plaintiffs on the procedural due process claim.       The plaintiffs filed a

notice of cross-appeal on all adverse rulings, including those related to

the City’s original motion to dismiss, Gatso’s motion for summary

judgment, and the district court’s class certification.

      We retained the case.

      II. Standard of Review.

      On a motion to dismiss, we review for corrections of errors at law,

unless the motion to dismiss is on a constitutional issue, in which case

our review is de novo.     Godfrey v. State, 898 N.W.2d 844, 847 (Iowa

2017); Hedland v. State, 875 N.W.2d 720, 724 (Iowa 2016).

      Generally, we review a district court’s ruling on summary

judgment for correction of errors at law. Mueller v. Wellmark, Inc., 818

N.W.2d 244, 253 (Iowa 2012); Stevens v. Iowa Newspapers, Inc., 728

N.W.2d 823, 827 (Iowa 2007). When the summary judgment was on a

constitutional issue, however, our review is de novo.         Godfrey, 898

N.W.2d at 847; Varnum v. Brien, 763 N.W.2d 862, 874 (Iowa 2009).

      We review a district court’s decision on class certification for abuse

of discretion.   Comes v. Microsoft Corp., 696 N.W.2d 318, 320 (Iowa

2005).

      III. Procedural Due Process.

      A. Arguments of the Parties. The City sees this case as simply

involving an optional, informal, and inexpensive alternate process to

resolve disputes over traffic violations detected by the ATE system prior

to resorting to a formal, and more expensive, district court process.

According to the City, procedural due process is not violated when the

City provides a supplemental and voluntary opportunity to be heard in
                                           20

addition to the opportunity to go to district court where a party is

afforded a panoply of procedural rights that indisputably satisfy

procedural due process.

       The City recognizes, as it must, that the ATE ordinance, at least

until it was later amended, 2 did not specifically authorize an optional or

supplemental administrative proceeding. But the City does not see the

lack of explicit authorization in the ATE ordinance as having any legal

significance on the question of procedural due process. The provision of

additional informal processes of resolution are not unconstitutional

simply because the ordinance does not spell out the additional options.

See Hughes v. City of Cedar Rapids, 112 F. Supp. 3d 817, 846–47 (N.D.

Iowa 2015), aff’d in part, rev’d in part, 841 F.3d 987 (8th Cir. 2016). The

City rejects the notion, adopted by the district court, that a per se

procedural due process violation arises when the City fails to follow the

procedures outlined in a statute or ordinance.

       Even if the process provided to the plaintiffs were in violation of a

statute or ordinance, the City argues, one must still focus on the process

afforded, in fact, and whether that process was sufficient to meet

procedural due process requirements.                 In other words, even if the

process actually provided is arguably contrary to a state statute or a

municipal ordinance, that illegality does not necessarily give rise to a



       2The   City amended its ATE ordinance after this case was filed. The amended
ATE ordinance specifically provides that the recipient of a notice of violation may
dispute the violation by requesting an administrative hearing or by requesting the
issuance of a municipal infraction by the police department. Des Moines, Iowa, Mun.
Code § 114-243(d) (2017). Under the amended ATE ordinance, a vehicle owner has
thirty days to request an administrative hearing. Id. A vehicle owner dissatisfied with
the outcome of the administrative hearing may then request the filing of a municipal
infraction within thirty days of the date of determination. Id. If a timely request for the
issuance of a municipal infraction is made, the City may elect to issue the municipal
infraction or dismiss the matter. Id.
                                     21

constitutional   procedural   due    process    violation     if   the   party,

notwithstanding the legal infirmities of the process, nonetheless received

proper notice and a meaningful opportunity to be heard under the

familiar three-pronged test of Mathews v. Eldridge, 424 U.S. 319, 335, 96

S. Ct. 893, 903 (1976).

      In applying the first prong of the Mathews test involving inquiry

into whether the plaintiff has asserted a constitutional interest entitled to

procedural due process protection, the City concedes that the imposition

of a monetary sanction gives rise to a constitutionally protected property

interest.   But according to the City, the constitutionally protected

property interest is not very weighty in light of the minimal amount

involved in this case.

      On the second prong of the Mathews test requiring evaluation of

the risk of erroneous deprivation that may arise from the offered

procedure, the City maintains there is no risk of erroneous deprivation

because plaintiffs ultimately have full access to the municipal infraction

process in the district court under Iowa Code section 364.22.

      The City argues the district court erred when it found that the

administrative process was not voluntary.        The City did not present

specific affidavits on the voluntariness question but cited instead the

language in the notice of violation received by each of the plaintiffs,

which stated, on the back page, “Alternatively, you may request a civil

infraction (lawsuit) in lieu of an administrative hearing.”

      On the third Mathews prong regarding the nature of the

government’s interest, the City argues that it has a strong interest in

providing an alternative avenue to resolve the dispute because it reduces

costs for all involved.
                                    22

      In contrast, the plaintiffs argue that the district court properly held

that the City’s failure to follow the process in the ordinance and as

required by state statute violates procedural due process under article I,

section 9 of the Iowa Constitution.          According to the plaintiffs,

determining what process is due can first be judged by what process is

required by statute. See Ghost Player, L.L.C. v. State, 860 N.W.2d 323,

330 (Iowa 2015). The plaintiffs assert the general assembly determined

the minimal process due to those challenging municipal infractions is

contained in Iowa Code section 364.22.

      The plaintiffs maintain the district court correctly found that the

administrative hearing process was mandatory.            According to the

plaintiffs, the notice of violation directed vehicle owners to call a

telephone number answered by Gatso employees.           The plaintiffs point

out Gatso’s training materials tell its employees that people can contest

the notice of violation in person or by mail at an administrative hearing.

Yet, the plaintiffs suggest, nowhere in Gatso’s training materials are

employees instructed that they can tell vehicle owners a municipal

infraction process is available.

      Further, according to the plaintiffs, the notice of violation itself

shows that the administrative hearing is required—its check-the-box

option on the back of the notice only allows the vehicle owner to select an

in-person administrative hearing or a hearing by mail to contest the

violation. The plaintiffs argue their experiences further support that the

administrative hearing is required—a plaintiff who called Gatso was told

that he had to proceed with an administrative hearing and a plaintiff who

went to the website listed on the notice of violation was informed that to

contest the violation he must do it through an administrative hearing.
                                      23

      Even if an administrative hearing is not required, the plaintiffs

claim the City still violates procedural due process by not complying with

its own ordinance by offering an unauthorized administrative hearing.

Plaintiffs emphasize that in Hancock, the Iowa Supreme Court held that

Davenport’s failure to comply with its own ordinances in declaring a

building a nuisance failed to satisfy due process requirements.             392

N.W.2d at 477–78. In the plaintiffs’ view, cities may not post hoc create

a process that does not exist in their ordinances.               See Iowa Code

§ 364.2(1). Plaintiffs dispute the City’s attempt to distinguish the cases

relied on by the district court. In addition to violating its own ordinance,

according to the plaintiffs, the City is violating state law.

      Further, assuming the City’s failure to provide the process in the

ordinance did not in itself violate due process, the plaintiffs maintain due

process was still violated under the familiar three-pronged balancing test

of Mathews, 424 U.S. at 335, 96 S. Ct. at 903. Plaintiffs assert they have

a property interest in not being subject to irrational monetary fines.

While $65 may not seem significant to some, the plaintiffs admit, it is

certainly a significant amount to others. Applying the second factor in

the Mathews balancing test, the plaintiffs argue there is also a

substantial risk of erroneous deprivation as shown by (1) the lower

burden of proof, (2) a process that is less protective than a court of law,

(3) flaws in the citation and notice process which direct all vehicle owners

to an administrative hearing, and (4) a nonrebuttable presumption that a

cited vehicle owner is liable for the infraction. The plaintiffs state that

the probable value of additional or substitute procedural safeguards also

weighs in favor of a due process violation—the municipal infraction

process provides direct access to the district courts.          According to the

plaintiffs, if a vehicle owner does not pay the fine, the City does not file a
                                           24

municipal infraction to obtain a judgment for the money, but proceeds to

directly attempt to collect the money without a preceding judgment.

Finally, the plaintiffs assert, that under the third prong of the Mathews

test, there is no weighty government interest in not proceeding with a

municipal infraction.

       B. Discussion.

       1. Procedural due process arising out of a failure to follow ordinance

or state law.      We begin our discussion of procedural due process by

considering the gist of the district court’s opinion, namely, that a

violation of a statute or ordinance gives rise to a procedural due process

violation without a further showing. 3 Many federal authorities hold that

the failure of government to comply with an ordinance or state law does

not “automatically translate into a deprivation of procedural due process

under the United States Constitution.” Shoemaker v. City of Howell, 795

F.3d 553, 560 (6th Cir. 2015) (quoting DePiero v. City of Macedonia, 180

F.3d 770, 788 (6th Cir. 1999)); see also Phillips v. McCollom, 788 F.3d

650, 654 (6th Cir. 2015); James v. Rowlands, 606 F.3d 646, 657 (9th Cir.

2010); Rogers v. Okin, 738 F.2d 1, 8 (1st Cir. 1984); Thomas v. Zaharek,

289 F. Supp. 2d 167, 178 (D. Conn. 2003).
       While these federal authorities are not binding on us in our

interpretation of article I, section 9 of the Iowa Constitution, we think the

reasoning in these cases is persuasive. A regulation or ordinance may

well provide for procedures in excess of procedural due process

        3Although the plaintiffs emphasize that the City violated its own ordinance

(before the recent amendment) by imposing an unauthorized administrative process as
part of their procedural due process argument, they have not explicitly alleged a cause
of action based upon violation of the underlying ordinance in effect at the time the
plaintiffs received their notices of violation. We do not address whether any or all of the
plaintiffs should be allowed to amend the complaint to allege violation of the former
ordinance or whether such claims are moot in light of the amendment of the ordinance.
We leave these matters to the district court on remand.
                                    25

requirements.    The failure to follow such a procedure or ordinance

cannot give rise, in and of itself, to a due process violation. Of course,

the failure to comply with a regulatory or statutory procedure may

provide us with guidance on whether a procedural due process problem

is present, but in all cases, the focus of the analysis must be on the

critical question of whether the process that was provided comported

with the basic requirements of notice and an opportunity to be heard.

      We do not find the precedents cited by the plaintiffs and the

district court supportive of the plaintiffs’ position.   Some of the cases

simply stand for the proposition that a duly enacted municipal ordinance

cannot be amended by a mere resolution.          See Cascaden v. City of

Waterloo, 106 Iowa 673, 682, 77 N.W. 333, 336 (1898); McManus v.

Hornaday, 99 Iowa 507, 511–12, 68 N.W. 812, 813–14, 814 (1896); Ryce

v. City of Osage, 88 Iowa 558, 561–62, 55 N.W. 532, 533 (1893). Other

cases simply indicate that a statutory procedure was not followed and,

independently, a due process violation occurred. See Blanchard v. City of

Ralston, 559 N.W.2d 735, 739–40 (Neb. 1997).

      Nothing in Ghost Player, 860 N.W.2d 323, is to the contrary. In

Ghost Player, we looked to the legislative mandate to determine if a

contested case was required.     Id. at 330.   As a matter of determining

what procedure is required by statute, this makes sense. But the brief

passage in Ghost Player does not stand for the proposition that the scope

of procedural due process rights under the Iowa Constitution is identical

to or controlled by the procedures established by the legislature.

Instead, the constitutional test for determining whether a process

provided by the government purports with procedural due process is

provided in Mathews, 424 U.S. at 335, 96 S. Ct. at 903. Under Mathews,

due process is evaluated by considering the nature of the private
                                           26

interests involved, the risk of erroneous deprivation, and the nature of

the government’s interests. Id. We now turn to apply the Mathews test.

       Under the ordinance itself, there is little doubt that the Mathews

test is satisfied. Under the ordinance, a vehicle owner who receives a

traffic citation may simply request the City file a municipal infraction

under Iowa Code section 364.22. Under Iowa Code section 364.22, the

plaintiffs are afforded a full panoply of procedural rights that clearly

satisfy the Mathews test. 4

       2. Procedural due process challenge arising out of Gatso hotline.

The plaintiffs also claim that the City was not entitled to summary

judgment on procedural due process grounds because of Gatso’s conduct

in the operation of its hotline that is available for cited vehicle owners.

According to the plaintiffs, employees staffing the hotline have been

provided instructions that allow vehicle owners to disclaim liability by

claiming a “sale, lease, or rental” of the registered vehicle.                  Plaintiffs

claim to have called the hotline but were not affirmatively told that a

sale, lease, or rental agreement might provide an avenue to escape

liability for the civil penalty.            Plaintiffs claim that by failing to

affirmatively provide this information through the hotline, the City and

Gatso violate the notice requirement, let alone the adequate hearing

prong, of due process. 5


       4The  ATE ordinance as amended also appears to satisfy due process. Under the
ATE ordinance as amended, the administrative hearing is optional and a vehicle owner
may choose to make the City prove its case in a small claims action. See Des Moines,
Iowa, Mun. Code § 114-243(d) (2017). The ATE ordinance as applied will pass
procedural due process muster if the notices the City sends to vehicle owners fairly and
accurately state, as suggested in the City’s brief, that the administrative hearing is
optional, that it is a method of informal settlement, and that no enforceable obligation
will arise unless the City files a municipal infraction in small claims court and obtains a
judgment.
       5Due process involves two separate components: adequate notice under Mullane

v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652 (1950), and a legally
                                          27

       However, there is no procedural due process obligation on the part

of Gatso or the City to affirmatively volunteer circumstances under which

a vehicle owner may seek to avoid responsibility under the City’s ATE

ordinance. The notice of violation provides the time, place, and alleged

speed of the vehicle in question in a case involving a small civil penalty.

An alleged violator does not need a notice that he might seek to avoid

being considered a “vehicle owner” under the ATE ordinance by showing

a sale, rental, or lease agreement. Such potential defenses or arguments,

while not necessarily meritorious, would be obvious to any vehicle owner

cited under the ATE ordinance.            There is no due process requirement

that the City or its agent Gatso affirmatively state to all who call the

hotline, regardless of their circumstances, that liability might be avoided

by asserting sale, lease, or rental arrangements.

       3. Due process based on irrebuttable presumption.                The plaintiffs

also claim that the ordinance violates procedural due process because it

gives rise to an irrebuttable presumption that the vehicle owner was, in

fact, the driver of the vehicle.            The argument raises an issue of

substantive due process, not procedural due process. See City of Sioux

City v. Jacobsma, 862 N.W.2d 335, 345–46 (Iowa 2015) (discussing but

not deciding the question of whether an ATE ordinance that imposes

liability on vehicle owners gives rise to an irrebuttable presumption that


___________________________
sufficient process under Mathews, 424 U.S. 319, 96 S. Ct. 893. Except for the notice
claim related to the operation of the hotline, the plaintiffs’ rely upon a Mathews due
process argument. Under the ordinance, however, the plaintiffs have always been
entitled to a de novo hearing in a small claims action, thus providing a constitutionally
satisfactory process. Nothing in this opinion, however, should be construed as approval
of representations made in various notices that were utilized in this case declaring, for
instance, that the unauthorized administrative law process yielded “JUDGMENT[S]”
that could be referred to collection agencies if the vehicle owner did not make prompt
payment. Misleading notices in ATE systems have been disapproved of in at least one
case. See City of Moline Acres v. Brennan, 470 S.W.3d 367, 381 (Mo. 2015) (en banc).
                                     28

an owner was driving in violation of substantive due process). While the

district court dismissed the plaintiffs’ substantive due process claim, it

did not directly address the claim that the Des Moines ordinance violated

substantive due process because it created an irrebuttable presumption

that the vehicle owner was driving the car.

      In Jacobsma, we held that because the plaintiff at trial conceded

he was the registered owner of the vehicle, conceded the vehicle was

involved in the infraction, and offered no evidence that he was not driving

the vehicle when the infraction occurred, the plaintiff could not claim he

was deprived of substantive due process because of an irrebuttable

presumption. Id. We noted the plaintiff must show he was harmed by

the alleged constitutional defect, something that the plaintiff in

Jacobsma did not show at trial. Id. at 346.

      On the legal question of whether the imposition of liability on

vehicle owners regardless of who is driving the vehicle creates an

irrebuttable presumption that violates substantive due process in the

ATE context, the federal cases have held that it does not, at least where

the stakes involve only a small civil fine. The leading case is Idris v. City

of Chicago, 552 F.3d 564 (7th Cir. 2009). In Idris, the court observed

that vicarious liability on a vehicle owner is rational because it

encourages owners to “take more care when lending their cars, and often

they can pass the expense on to the real wrongdoer.”         Id. at 565–66.

Other federal and state courts have come to the same result as Idris in

cases involving civil penalties in the ATE context. See, e.g., Gardner v.

City of Cleveland, 656 F. Supp. 751, 760–61 (N.D. Ohio 2009); Fischetti v.

Village of Schaumburg, 967 N.E.2d 950, 959–60 (Ill. App. Ct. 2012);

Krieger v. City of Rochester, 978 N.Y.S.2d 588, 603–04 (Sup. Ct. 2013);
                                   29

City of Knoxville v. Brown, 284 S.W.3d. 330, 338–39 (Tenn. Ct. App.

2008).

      As noted in Jacobsma, we have not addressed the question of

whether liability for vehicle owners regardless of who is driving violates

substantive due process. In Hensler v. City of Davenport, however, we

considered a civil ordinance that suggested after a second occurrence of

a delinquent act involving a child, a parent was presumed negligent in

supervising the child and that the negligence caused the occurrence.

790 N.W.2d 569, 576 (Iowa 2015).        We considered the presumption

“arbitrary and irrational in light of the multiple factors that can cause

[an] ‘occurrence.’ ” Id. at 588.

      We think this case is distinguishable from Hensler. The question

does not really involve an “irrebuttable presumption” as is sometimes

stated, but instead involves an imposition of vicarious liability on a

vehicle owner when speeding events are recorded by an ATE system. As

noted in Idris, the proposition that the vehicle owner can have an impact

on the driving habits of a person driving the owner’s car or upon the

selection of persons who drive the owner’s car is entirely rational. 552

F.3d at 566. Further, the vehicle owner may recover the fine from the

third-party driver, thereby advancing the deterrence goals of the ATE

ordinance.    Id.   As pointed out in Idris, legal systems can assign

economic losses without fault to achieve deterrence goals. Id.

      The notion that parents were deemed to be “negligent” for second

occurrences of delinquency involved an irrebuttable presumption of

negligence that was far less rational that the imposition of vicarious

liability in this case.    In addition to involving a true irrebuttable

presumption that was arbitrary in nature, liability under the ordinance

in Hensler would impose a highly personal stigma on the parents—a
                                     30

determination that a parent was negligent—a factor absent in an ATE

infraction matter.    We think the plaintiffs’ appeal on challenging the

vicarious liability feature of the ATE ordinance on substantive due

process grounds is without merit.

     IV. Violation of Substantive Due Process, Equal Protection,
and Privileges and Immunities.

      The plaintiffs essentially reprise arguments made in Behm, ___

N.W.2d at ____, and Leaf, ___ N.W.2d at ____, suggesting that the ATE

system violates the equal protection, substantive due process, and

privileges and immunities clauses of the Iowa Constitution.            The

plaintiffs’ interrelated arguments on these Iowa constitutional claims are

based on the exclusion of government-owned vehicles and semi-trailer

trucks from the ATE system as well as on whether there is a rational

basis for the City placing certain ATE cameras on I-235.

      The plaintiffs assert they have a fundamental right to travel that

the ATE ordinance impinges. For the same reasons as stated in Behm

and Leaf, we hold that the Des Moines ATE ordinance does not infringe

any fundamental right to travel. See Behm, ___ N.W.2d at ___; Leaf, ___

N.W.2d at ___.       No suspect class has been alleged.     Therefore, the
appropriate level of scrutiny is rational basis.

      There is, however, one key procedural difference in this case

compared to Behm. In Behm, the constitutional issues were raised in the

context of a motion for summary judgment. In this case, the substantive

due process, equal protection, and privileges and immunities questions

were decided against the plaintiffs on the City’s motion to dismiss.

      The procedural distinction between Behm and this case is critical.

Generally, a motion to dismiss should not be granted. We have stated

that “nearly every case will survive a motion to dismiss under notice
                                    31

pleading.” U.S. Bank v. Barbour, 770 N.W.2d 350, 353 (Iowa 2009); see

also Rees v. City of Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004). If a

claim is “at all debatable,” we have advised against the filing or

sustaining of a motion to dismiss. Renander v. Inc., Ltd., 500 N.W.2d 39,

40–41 (Iowa 1993). This case thus stands in marked contrast to Behm,

which was decided on a motion for summary judgment, and Leaf, where

the matter actually went to trial. See Behm, ___ N.W.2d at ___; Leaf, ___

N.W.2d at ___.

      In this case, the plaintiffs challenge the use of the Nlets database,

which excludes semi-trailer trucks from prosecution under the ATE

ordinance, as contrary to the fundamental right to equal protection

under article I, section 6 of the Iowa Constitution. The plaintiffs make

similar allegations with respect to the exclusion of government-owned

vehicles from the Nlets’ database. The petition further claims “there is no

rational basis to make an arbitrary distinction between vehicles that do

not have rear license plates[] and are therefore not subject to the same

traffic laws as those vehicles that do have rear license plates.”      The

petition alleges that

      there is no rational basis to make an arbitrary distinction
      between drivers whose vehicles’ license plates are a part of
      the IDOT database and [the] more than 3200 Iowa drivers
      who have had their licenses suppressed from the same
      database, or drivers who do not have rear plates on their
      trailers, and are therefore not subject to the same traffic
      laws.

The district court, however, dismissed the petition on the ground that

“the City could rationally conclude a system that only photographs rear

license plates is less expensive and that it is more cost-effective to

capture fewer people who violate the Ordinance with a less expensive

system.” Further, the district court held that “[i]t may be impossible to
                                      32

create a database that includes every person operating a vehicle” at the

ATE locations.

      Given the pleadings, we think that the plaintiffs are entitled to

attempt to show that the asserted rational basis for the use of the Nlets

database offered by the City, namely a cost-effective way to protect public

health and safety through enforcing speeding laws, has no “basis in fact.”

That is the thrust of Racing Association of Central Iowa v. Fitzgerald

(RACI II), where we noted that even under a rational basis test, a

classification could be attacked if it is not “realistically conceivable” or

does not have any “basis in fact.” 675 N.W. 1, 7–8 (Iowa 2004) (emphasis

omitted) (first quoting Miller v. Boone Cty. Hosp., 394 N.W.2d 776, 779

(Iowa 1986)).    While leeway should be given to legitimate legislative

judgments under the rational basis test, plaintiffs are entitled to

penetrate asserted reasons supporting legislative classifications to

determine if, in fact, there is any reasonable basis for the purported

rationale.   See Glendale Fed. Sav. & Loan Ass’n v. State, 485 So. 2d

1321, 1326 (Fla. Dist. Ct. App. 1986) (“Clearly, the constitutionality of a

statute predicated upon the existence of a particular state of facts may

be challenged by showing that these facts never existed or have ceased to

exist.”); State v. Russell, 477 N.W.2d 886, 889–91 (Minn. 1991) (holding

challenger entitled to develop factual record to determine whether

legislative justifications for classification are only theoretical or fanciful).

We think the plaintiffs are entitled to attempt to prove that there is no

reasonable basis in fact for the classifications implemented by the City

under article I, section 6 of the Iowa Constitution.

      Similarly, the district court should have allowed the plaintiffs to

attempt to show factually that there is no rational safety argument to

support the particular placement of ATE cameras on I-235.                    In
                                    33

considering the substantive due process attack, as noted in Behm, the

City need only show that safety interests are plausible and “based in

fact.” Behm, ___ N.W.2d at ___ (quoting RACI II, 675 N.W. at 7–8). We do

not engage in de novo review of the City’s safety judgments. We do not

think, however, that the substantive due process challenge may be

thrown out of court on a motion to dismiss.

      In addition, on privileges and immunities grounds the plaintiffs

challenged the different treatment between in-state and out-of-state

vehicle owners under the ATE program. The district court granted the

City’s motion to dismiss on the ground that the pleading failed to state

specifically how the ATE system treated out-of-state residents differently,

how the rules placed a more onerous burden on the in-state than out-of-

state vehicle owners, or how the ATE system otherwise generally

burdened classes of owners. At the pleading stage, however, we cannot

say there are no state of facts that the plaintiffs might show to support

their claims. See, e.g., Kingsway Cathedral v. Iowa Dep’t of Transp., 711

N.W.2d 6, 7 (Iowa 2006); Golden v. O’Neill, 366 N.W.2d 178, 179 (Iowa

1985); Lakota Consol. Indep. Sch. v. Buffalo Ctr./Rake Cmty. Sch., 334

N.W.2d 704, 708 (Iowa 1983).

      For the above reasons, granting the motion to dismiss on these

claims was not proper, and we therefore reverse the district court.

      V. Unlawful Delegation.

      The plaintiffs suggest that the ATE ordinance unlawfully delegates

governmental authority to Gatso, a private entity.    The arguments are

generally the same as those presented in Behm and Leaf. See Behm, ___

N.W.2d at ___; Leaf, ___ N.W.2d at ___. Here, the question of unlawful

delegation was presented, and decided, upon the City’s motion to

dismiss.
                                       34

         Ordinarily, of course, it is difficult to obtain dismissal on a motion

to dismiss when there is the potential for factual issues. Yet, on the face

of the pleadings, much of the plaintiffs’ unlawful delegation argument

fails.   The pleadings themselves, for instance, acknowledge that Gatso

reviews photographs to determine if a speeding violation occurred but

then forwards the information to the City for ultimate approval. Further,

assuming the alleged facts in the petition are taken as true, the mere

ministerial act of causing notices to be sent to violators after a City police

officer approves the violation does not amount to an unlawful delegation

of governmental power to a private entity as a matter of law. See Behm,

___ N.W.2d at ___.

         There is the issue, however, of whether the City unlawfully

delegated power to Gatso with respect to calibration of equipment. The

question here is whether the calibration of equipment involves judgment

calls or whether it is ministerial in nature. See Warren Cty. Bd. of Health

v. Warren Cty. Bd. of Supervisors, 654 N.W.2d 910, 914 (Iowa 2002).

         The district court did not rule upon this issue in its ruling on the

motion to dismiss, nor did the court rule upon the issue in its later

summary judgment order. The plaintiffs did not file a rule 1.904 motion

to ask the district court to address the calibration issue. As a result, the

plaintiffs did not preserve the issue for our review in this case. See Lee v.

State, 815 N.W.2d 731, 740 (Iowa 2012) (declining to address issue when

issue not ruled on by district court).

         VI. Action for Damages Under the Iowa Constitution.

         The plaintiffs argue that the district court erred in holding that no

action for damages exists for the City’s violation of the plaintiffs’

constitutional rights and cite Godfrey, 898 N.W.2d 844.              We have

reversed the district court’s grant of the City’s motion to dismiss on equal
                                     35

protection, procedural and substantive due process, and privileges and

immunities grounds.     Because these provisions of the constitution are

self-executing, if the plaintiffs prevail on their claims they have an action

for damages. See id. at 871.

      VII. Preemption Claims.

      A. Preemption of Ordinance Based on Iowa Code Section

602.6102 and Iowa Code Section 364.22(4) and (6). As in Behm and

Leaf, the plaintiffs argue that the state law procedural requirements for

municipal infractions contained in Iowa Code section 364.22 preempt the

informal, administrative scheme offered by the City. We noted in Behm

that to the extent a municipality seeks to assert the coercive power of

government to enforce payment of a penalty for a municipal infraction, a

municipality must pursue a municipal infraction under Iowa Code

section 364.22. See Behm, ___ N.W.2d at ___. A municipality is free,

however, to establish an alternate, informal procedure to pursue

resolution of the matter without resort to the court if the municipality

does not claim or attempt to assert the power to enforce any purported

citation except through the municipal infraction provisions of Iowa Code

section 364.22.   Here, the Des Moines ordinance on its face does not

provide that enforcement of an ordinance violation may be achieved

through any means other than a municipal infraction.           We therefore

affirm the district court ruling in favor of the defendants on this issue.

      B. Preemption Based Upon IDOT Action.             The plaintiffs claim

that the City has no choice but to eliminate the ATE cameras on I-235 in

light of the evaluation conducted by IDOT and the sustaining of that

evaluation after an administrative appeal. Because we have determined

that the IDOT lacked the authority to promulgate its rules regulating ATE
                                       36

systems, however, the plaintiffs’ preemption argument based upon IDOT

actions is without merit. See City of Des Moines, 911 N.W.2d at 434.

        VIII. Scope of the Class.

        The court originally defined the class as

        [a]ny vehicle owner who received a [notice of violation]
        between December 11, 2013 and the present based on a
        claim of speeding from one of the speed cameras mounted at
        the I-235 eastbound location and who appealed the decision,
        went through the administrative process, was adjudicated
        liable and ordered to pay a penalty.

The City moved to modify the scope to add “and then did not pursue a

district court action” to the end of the class definition. The district court

granted the motion. Our review of the district court’s determination of

the scope of a class is for abuse of discretion. Comes, 696 N.W.2d at

320.

        Because we have reversed the district court on the motion to

dismiss for violations of the substantive due process, equal protection,

and privileges and immunities, and have further found that the

administrative hearing procedure violated the ordinance prior to its

amendment by the City, we have significantly changed the landscape of

this proceeding. Under the circumstances, we vacate the district court’s

order    on   class   certification   and   remand   the   issue   for   further

consideration in the district court’s discretion as the case develops.

        IX. Unjust Enrichment.

        A. Introduction.     On early motions, the district court ruled in

favor of the defendants on the question of unjust enrichment. After the

early motions were decided, the plaintiffs added a party who, in fact, had

paid money to Gatso and the City. Yet, with respect to the City, at least,

the district court seems to have reversed course. Although the district

court earlier appeared to dismiss the unjust enrichment claim against
                                       37

the City in its ruling on the City’s motion to dismiss, the district court

appears to have changed course when it ruled upon the later motions for

summary judgment.          However, the plaintiffs did not file a rule 1.904

motion was filed challenging the district court’s reversal of its prior

position dismissing the unjust enrichment claim against the City. Any

claim regarding that inconsistency is not preserved on appeal.

        B. Unjust Enrichment Claim Against the City.             The unjust

enrichment claim against the City, however, was tied to the district

court’s categorical ruling that the City’s failure to follow its ordinance

and the creation of an unauthorized administrative procedure contrary to

law amounted to a violation of procedural due process for all members of

the class who were subject to administrative enforcement of the ATE

system.

        In Godfrey, we determined that the plaintiffs have an action for

damages for constitutional violations arising from equal protection and

due process. See 898 N.W.2d at 871. The availability of this alternate

constitutional right may have an impact on the court’s willingness to

allow    a   claim   for   unjust   enrichment   to   proceed.   Under   the

circumstances, we think the best option now is to vacate the district

court ruling regarding unjust enrichment with respect to the City and

remand the matter to the district court for further consideration in light

of our holdings in this case.

        C. Unjust Enrichment Claim Against Gatso. In addition to the

claim against the City, the plaintiffs also claim unjust enrichment

against Gatso. The district court granted Gatso’s motion for summary

judgment in all respects. On the date of this ruling, the plaintiffs’ class

certification had not been granted. The plaintiffs appealed on the unjust

enrichment claim.
                                    38

      In the district court’s ruling, it noted that Gatso stated and the

plaintiffs did not dispute that the plaintiffs never paid any of the civil

penalties issued against them. The plaintiffs made no effort prior to the

ruling on summary judgment to add additional plaintiffs who actually

paid the fine.   After the ruling, however, the plaintiffs added Patrick

Dagel to their list of class representatives, who had paid the penalty to

Gatso, writing “[p]aid in protest” on the check.

      On their cross-appeal, the plaintiffs concede that at the time the

district court granted Gatso’s motion for summary judgment, which was

July 25, 2016, none of the plaintiffs had paid the penalty to Gatso.

Lacking anyone who did pay at the time of the motion for summary

judgment as a putative class representative, the plaintiffs could not bring

the claim on behalf of others, and they had no claim on their own. See,

e.g., Wallace v. GEICO Gen. Ins., 108 Cal. Rptr. 3d 375, 379 (Ct. App.

2010) (holding a putative class representative who was refunded the

amount she was seeking did not have standing to represent the class);

Held v. Macy’s, Inc., No. 00319/09, 2009 WL 3465945, at *5–6 (N.Y. Sup.

Ct. Oct. 19, 2009) (noting that to be a putative class representative to

bring claims for harm on behalf of the class, the representative must

themselves have suffered the harm).

      We therefore affirm the district court’s grant of summary judgment

in favor of Gatso on the claim of unjust enrichment.

      X. Conclusion.

      We reverse the ruling of the district court finding that the City’s

ATE ordinance violates procedural due process.

      On the plaintiffs’ cross-appeal, we affirm the district court’s grant

of the motion to dismiss on grounds of preemption. We also affirm the
                                      39

district court’s grant of summary judgment to Gatso on its unjust

enrichment claims.

      We reverse the district court’s dismissal of the equal protection,

substantive due process, and privileges and immunities claims of the

plaintiffs. We reverse the district court’s holding that there is no action

for damages under the Iowa Constitution.

      In light of the changing landscape of this proceeding, we vacate the

district court’s order on unjust enrichment against the City and the

district court’s order on class certification.

      We remand the case for further proceedings consistent with this

opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      All justices concur except Mansfield and Waterman, JJ., who

concur in part and dissent in part, and Hecht, J., who takes no part.
                                     40

                                  #17–1489, Weizberg v. City of Des Moines

MANSFIELD, Justice (concurring in part and dissenting in part).

      I respectfully concur in part and dissent in part.

      I concur in part III of the court’s opinion.

      I dissent from part IV because I would affirm dismissal of plaintiffs’

equal protection and substantive due process claims.

      I concur as to the result in part V. I have stated my views on the

unlawful delegation issue in my concurrence in part and dissent in part

in Behm v. City of Cedar Rapids, ___ N.W.2d ___, ___ (Iowa 2018).

      I dissent from part VI because my analysis under parts III and IV

leads me to the conclusion that there is no viable constitutional claim in

the case.

      I concur as to the result in part VII.A. I incorporate by reference

what I said in Behm, ___ N.W.2d at ___, on the subject of state law

preemption.

      I concur as to parts VII.B, VIII, and IX.

      In the following discussion, I will elaborate on my disagreement

with part IV of the majority opinion. I will also explain why there may be

serious obstacles to a potential claim that the City violated its original

ordinance by implementing an unauthorized administrative process.

     I. The District Court Correctly Dismissed the Equal
Protection, Substantive Due Process, and “Privileges and
Immunities” Claims.

      I would affirm the dismissal of the equal protection, substantive

due process, and “privileges and immunities” claims brought under the

Iowa Constitution.    I do not agree that merely alleging a violation of

article I, section 6 or article I, section 9 of the Iowa Constitution makes a

lawsuit impervious to a motion to dismiss and guarantees a ticket to the
                                     41

discovery phase of litigation.   This case provides a good illustration of

when a motion to dismiss can be granted. See Hughes v. City of Cedar

Rapids, 840 F.3d 987, 996–97 (8th Cir. 2016) (affirming dismissal of

federal equal protection and substantive due process claims and noting

that “[t]he [ATE] ordinance passes rational basis” and does not “shock[]

the conscience”).

      A. The Equal Protection Claim Was Properly Dismissed. Here,

the City moved to dismiss plaintiffs’ allegation that it violated equal

protection for the City to use an ATE system that captured most

speeding vehicles but excluded semi-trailer trucks lacking visible rear

license plates and government-owned vehicles that were not in the Nlets

database.

      In their resistance, plaintiffs did not dispute the City’s contention

that its enforcement mechanism was rationally related “to the state

interest in providing a cost effective means to control speed.” (Emphasis

added.)   Plaintiffs simply argued that if safety were the only concern,

covering even more vehicles would promote that interest in safety. As

plaintiffs put it, “All Vehicle Owners . . . are . . . similarly situated for

safety purposes.”

      That’s not enough. I agree that Racing Association of Central Iowa

v. Fitzgerald (RACI II), opens the door for plaintiffs on a rational basis

challenge to show that the asserted grounds for the legislative distinction

have no “basis in fact”—not in the sense that they are merely factually

incorrect, but in the sense that they are so off the mark that the

legislature could not have “rationally believed” them. See 675 N.W.2d 1,

7–16 (Iowa 2004). Plaintiffs’ burden “includes the task of negating every

reasonable basis that might support the disparate treatment.” Id. at 8.

“[T]he fit between the means chosen by the legislature and its objective
                                            42

need only be rational, not perfect.”               LSCP, LLLP v. Kay-Decker, 861

N.W.2d 846, 859 (Iowa 2015). “The burden is not on the government to

justify its action, but for the plaintiff to rebut a presumption of

constitutionality.”      McQuistion v. City of Clinton, 872 N.W.2d 817, 831

(Iowa 2015).

       Here, plaintiffs, when confronted with the City’s motion to dismiss,

showed no interest in taking on that burden. They didn’t assert that the

City’s position regarding cost was irrational or that cost was not a

legitimate concern.        See LSCP, 861 N.W.2d at 861 (“Although in the

process of rational basis review we do not simply accept claimed

legitimacy of the interests (the ends) legislation purports to advance,

LSCP does not contest the legitimacy of the interests expressly profferred

by the Department in this case.”); see also Hearst Corp. v. Iowa Dep’t of

Revenue, 461 N.W.2d 295, 306 (Iowa 1990) (noting that the state has a a

legitimate interest in “administrative economy”). Under the rational basis

test, a classification can be underinclusive so long as it is not “extremely”

so. LSCP, 861 N.W.2d at 861; RACI II, 687 N.W.2d at 10. We can and

should affirm dismissal of an equal protection claim where the

governmental entity has asserted a legitimate reason for the classification

and plaintiffs have not disputed that reason, let alone asked for the

opportunity to disprove it. 6


       6In their appellate briefing, plaintiffs generally stick exclusively to the theme that
safety is not served by the challenged classification. See Appellees/Cross-Appellants’
Br. at 61–64; Appellees/Cross-Appellants’ Reply Br. at 18–22. For example, their
opening brief heading reads, “Equal Protection Rights Are Violated Where the Purpose of
the Ordinance is Safety and the Classifications of Vehicle Owners Are Not Related to
that Purpose.” Appellees/Cross-Appellants’ Br. at 61.
        In a small portion of their appellate briefing, plaintiffs do acknowledge the City’s
cost argument, but only to assert that Gatso bears the cost of operating the ATE system
and “therefore any increased cost” of a more comprehensive system would also be
Gatso’s responsibility. Appellees/Cross-Appellants’ Br. at 62. This argument, raised
for the first time on appeal, is a nonsequitur. As plaintiffs point out elsewhere in their
                                           43

       B. The      Substantive        Due       Process    Claim      Was      Properly

Dismissed.      I turn now to substantive due process.               Plaintiffs argued

below that the City had deployed the ATE systems in violation of Iowa

Department of Transportation regulations and that doing so “offend[ed]

judicial notions of fairness and human dignity.” This argument can be

quickly dispatched because we have elsewhere concluded that the IDOT

regulations in question were not validly promulgated.                 See City of Des

Moines v. Iowa Dep’t of Transp., 911 N.W.2d 431, 450 (Iowa 2018). In

any event, a city’s mere violation of state law does not establish a

substantive due process violation. See Hughes v. City of Cedar Rapids,

112 F. Supp. 3d 817, 846 (N.D. Iowa 2015) (“Plaintiffs provide no

authority for the proposition that noncompliance with state regulations

implicates the Due Process Clause, and the court is aware of none.”),

aff’d in part, rev’d in part on other grounds, 840 F.3d 987; see also

Williams v. Nix, 1 F.3d 712, 717 (8th Cir. 2013) (“It is clear . . . that,

without more, the mere violation of a state law or rule does not constitute

a federal due process violation.”). If that were the case, every violation of

law by a municipality would balloon into a constitutional violation.                     I

would affirm this dismissal as well. 7



___________________________
brief, Gatso has a “contingency” arrangement under which it receives $25.00 to $27.00
per paid citation, with the remaining revenue going to the City. Id. at 15, 24. Plaintiffs
thus ignore the fact that Gatso does charge the City for operating the ATE system, in
the form of an offset against the City’s revenue. Presumably, if Gatso’s costs increased,
the offset would be greater. In any event, plaintiffs have demonstrated no interest in
proving otherwise.
       7The  majority treats plaintiffs’ substantive due process argument as if it were a
general attack on camera placement independent of the IDOT regulations. It is not.
Both here and below, plaintiffs have made it clear that if a fundamental right is not
involved, their substantive due process are predicated on the City’s violation of IDOT
regulations, a matter we have already addressed in the City of Des Moines case. See
Appellees/Cross-Appellants’ Br. at 64; Appellees/Cross-Appellants’ Reply Br. at 24–25.
                                          44

       C. The “Privileges and Immunities” Claim Was Properly

Dismissed. There is no reason to revive this claim, either. It is unclear

what plaintiffs are even claiming.             Although the City does provide

different types of administrative hearings for out-of-state and in-state

residents, plaintiffs are not complaining about that.              Apparently their

complaint is that the City’s ATE systems discriminate against people

from outside the City who are less familiar with these “speed traps.” This

argument presumes that the right to travel embraces the right to speed

and is not supported by any relevant legal authority. Any speed trap,

whether automated or human-operated, is going to fall more heavily on

those who aren’t familiar with it.         I would affirm the dismissal of this

claim. 8

      II. There May Be Serious Obstacles to a Claim That the City
Violated Its Own Ordinance.

       I agree with the majority that the City appears to have violated its

original ATE ordinance. It implemented an off-the-books administrative

process that the ordinance doesn’t provide for at all. I therefore join in

the majority’s footnote 3 which suggests the possibility that the district

court on remand might consider a possible motion to amend the

pleadings to raise a claim for violation of the ordinance. However, I write

separately to note two potential obstacles to such a claim. There may be

others.

       The ordinance has since been amended in July 2017 to authorize

an administrative process. Therefore, I question whether either Reuven

       8Plaintiffs’references to the “privileges and immunities” clause of the Iowa
Constitution are to the second clause of Article I, section 6, which is nowadays
generally regarded as an equal protection guarantee and is also the basis of plaintiffs’
equal protection claim. See Edward M. Mansfield & Conner L. Wasson, Exploring the
Original Meaning of Article I, Section 6 of the Iowa Constitution, 66 Drake L. Rev. 147,
148 (2018).
                                    45

Weizberg or David Veng-Pedersen can pursue claims for relief under the

old ordinance. They never paid their citations. Lacking damages, they

would be seeking only injunctive and declaratory relief based on an

ordinance that has since been amended. That sounds moot to me. See,

e.g., Iowa Bankers Ass’n v. Iowa Credit Union Dep’t, 335 N.W.2d 439, 442

(Iowa 1983) (finding a challenge to administrative rules moot where the

challenged rules had been rescinded). In my view, Weizberg and Veng-

Pedersen should be dismissed from the litigation.       At a minimum, I

believe the City can raise mootness as a defense.

      Jacob Dagel is in a different position.       He went through an

administrative hearing before the ordinance was changed and paid his

citation.   Potentially, he and others like him could pursue damages

claims for recovery of their fines based on the City’s failure to comply

with its own ordinance.

      Yet, the City may be able to demonstrate that someone like Dagel

who paid the citation after an unauthorized administrative process

nonetheless committed the traffic violation and therefore suffered no

recoverable damages. This may qualify as a defense to a damages claim.

      III. Conclusion.

      For the foregoing reasons, I concur in part and dissent in part.

      Waterman, J., joins this concurrence in part and dissent in part.
