### IN THE SUPREME COURT OF IOWA
No. 07

– 1855
Filed June 4 , 20 10

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 c ity 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.2

PER CURIAM. Appellee, Robert Kl e iman , filed thi s class action against the appellant, City of Waterloo , for refunds of franchise fee s paid on cable
television services, claiming these fees were illegally exacted by the c ity

. He sought certification of t he class, judgment against the c ity in an
amount s ufficient 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 c ity from enforcing the franchise fees in the future, and other proper relief. The district
court certified the class.
The c ity filed a motion for summary judgment claiming Iowa Code
section 477A.7(5) (Supp. 2007) relieved it of any liability . Kl e iman acknowledged that section 477A.7(5) prospectively legalized the c i ty’s
franchise fees , but resisted the retroactive applicati on of the law , claiming it was un constitutional under the D ue P rocess C lauses of the
F ederal and S tate C onstitutions. 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 the ir vested rights. Therefore, the court denied the c ity’s motion for summary judgment. The

c ity filed an application for interlocutory appeal, which we granted. 1
On a ppeal, the parties raise the identical issues addressed in Zaber v. City of D ubuque ,

___ N.W.2d

___ (Iowa 20 1 0), 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 D ue Process C lause of the Fifth Amendment to the United

1 This 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 appeal s under No. 07

– 1641.3

States Constitution or the due process clause of a rticle I, s ection 9 of the
Iowa Constitution. Because the legislature has ratified the c ity’s past

assess ment and collection of franchise fees, the plaintiffs are not entitled
to a ref und of those fees. Therefore, we reverse the decision of the
district court and remand th is case to the district court for entry of summary judgment in favor of the c ity

. DISTRICT COURT DECISION REVERSED AND CASE
REMANDED. All justices concur except Wiggins and Hecht, JJ., who dissent. This opinion shall not be published.4

#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.