IN THE COURT OF APPEALS OF IOWA
No. 15-1213 Filed September 28, 2016
AINLEY KENNELS & FABRICATION, INC., ET AL., Plaintiffs-Appellants,
vs.
CITY OF DUBUQUE, IOWA, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
A group of taxpayers appeals the district court’s grant of summary
judgment. REVERSED AND REMANDED.
Sean P. Moore of Brown, Winick, Graves, Gross, Baskerville &
Schoenebaum, P.L.C., Des Moines, for appellants.
Ivan T. Webber and James R. Wainwright of Ahlers & Cooney, P.C., Des
Moines, for appellee.
Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2
VOGEL, Presiding Judge.
Ainley Kennels & Fabrication, Inc., et al.1 (Ainley) appeals the district
court’s denial of its motion for summary judgment and the grant of the City of
Dubuque’s (the City) motion for summary judgment. Ainley claims the district
court erred in determining an ordinance adopted by the City qualified as a
corrective ordinance or curative act and thereby implicitly finding the City did not
violate Ainley’s substantive due process rights. We conclude the City’s
ordinance was a retroactive tax, rather than a curative act, and the ordinance
violated Ainley’s substantive due process rights. Therefore, we reverse the order
of the district court and remand for further proceedings.
I. Background Facts and Proceedings
In 1993, Dubuque County held two special elections regarding franchise
agreements with utility companies. On August 24, 1993, the voters approved a
franchise agreement with Peoples Natural Gas Company for gas services. On
December 7, 1993, the voters approved a franchise agreement with Interstate
Power Company for electric services. At some point, the City annexed areas that
received their electric services from Maquoketa Valley Rural Electrical
Cooperative. Thereafter, the City entered into a franchise agreement with
Maquoketa Valley Rural Electrical Cooperative, which included a franchise fee.
1 The plaintiffs-appellants, referred to collectively as Ainley, are: Ainley Kennels & Fabrication, Inc.; Automotive Enterprises Company d/b/a Automotive Industrial; Dubuque Stamping & Manufacturing, Inc.; Eagle Window & Door Manufacturing, Inc.; Rite-Hite Corp. d/b/a Frommelt Safety Products; Grove Tools, Inc.; Klauer Manufacturing Co.; Morrison Bros. Co.; Rousselot Dubuque, Inc.; Smart Retract, Inc.; F.H. Uelner Precision Tools & Dies, Inc.; Union-Hoermann Press, Inc.; Welu, Inc. d/b/a Welu Printing Co.; Giese Manufacturing Company, Inc.; Tri-State Industries, Inc.; and Woodward Communications, Inc. d/b/a Telegraph Herald. According to the City, the refund claims from all of these companies total an estimated $283,004.16. 3
On July 28, 2003, the City adopted ordinances 58-03 and 59-03, which
established a two percent franchise fee for both Interstate Power and Peoples
Natural Gas. Both ordinances contained a section that reads:
The fee imposed by Sec. 1 shall not apply to any sale . . . that is exempt under Iowa Code § 422.45 from the tax imposed by Iowa Code § 422.43 and in computing the amount of the fee, the Company shall not include such sales, unless it is impracticable to do so, in which event the City Manager may provide for a rebate of the amount of the fee for such exempt sales . . . to the Company’s customers.
On September 15, 2003, the City passed ordinances 75-03 and 76-03, which
amended ordinances 58-03 and 59-03 (collectively the 2003 ordinances). The
amended ordinances clarified some of the procedures for paying the franchise
fees, established exempt persons, and provided the processing of rebates for
exempt persons. The utility companies determined they would need to charge
the franchise fee to all customers, including exempt customers, and then the City
would provide a refund process for exempt customers.
The City does not dispute that Ainley was exempt from the franchise fee
under the City’s ordinances. Nevertheless, after the ordinances were passed,
Ainley paid the franchise fee as part of its regular utility bills. Prior to 2013,
Ainley was unaware that it was exempt from the franchise fee and eligible for a
refund for the franchise fees paid in preceding years. When Ainley learned this,
it contacted the City’s finance director to inquire about the proper procedure for
applying for a refund and applied. Initially, the City told Ainley it would receive
refunds for the previous three years. However, the City changed course shortly
thereafter and denied Ainley’s refund requests for franchise fees paid prior to
July 1, 2013. 4
On January 31, 2014, Ainley filed a petition, which they amended on
December 12, 2014, claiming unjust enrichment and seeking a writ of mandamus
ordering the City to refund the amount Ainley had paid in franchise fees. On
February 3, 2014, the City passed ordinances 6-14, 7-14, and 8-14 (collectively
the 2014 ordinances), which amended the 2003 ordinances. The 2014
ordinances amended the refund section of the 2003 ordinances and added a
section that voided any claim for a refund for fees paid prior to July 1, 2013, that
had not already been paid.
On December 8, 2014, the City filed a motion for summary judgment,
which asserted the City’s ordinance was a legitimate legislative act and
effectively extinguished Ainley’s claim for refund of fees prior to July 1, 2013.
Ainley filed a cross-motion for summary judgment, which argued the City’s
ordinance was a retroactive tax that violated substantive due process and equal
protection principles.
On July 1, 2015, the district court issued its ruling. Initially, the court
discounted the City’s argument:
The City cannot retroactively impose a rule or ordinance that prohibits the return of the fees by limitation of time. . . . The City argues that the money has already been used and the source of the funds necessary for the return of the collected fees is not available. This is not a defense, nor is it logical. The City cannot collect the fees against these entities. It bears not on the decision for its return, that the City has already spent the fees.
Yet, the court ultimately found the City’s 2014 ordinances were proper as
“corrective ordinances” or curative acts.
The reason it is proper relates to the nature of the City’s obligation as a steward of the residents’ taxes. To put the City in a position to have to now conjure revenues to replace what has already been 5
taken and spent, places a very heavy burden on the City and its financial management.
Accordingly, the court granted summary judgment in favor of the City and denied
Ainley’s cross-motion. Ainley appeals.
II. Standard of Review
Appellate courts review decisions regarding motions for summary
judgment for errors at law. Estate of Harris v. Papa John’s Pizza, 679 N.W.2d
673, 677 (Iowa 2004). Summary judgment is appropriate when “there is no
genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). “In determining whether
this standard has been met, the record must be viewed in the light most
favorable to the nonmoving party.” Travelers Indem. Co. v. D.J. Franzen, Inc.,
792 N.W.2d 242, 246 (Iowa 2010).
III. Discussion
A. Curative Act
Ainley argues the district court erred in determining the City’s 2014
ordinances were proper as curative acts. Ainley claims the 2014 ordinances do
not qualify as curative acts because the prior ordinances were not illegal or void
for any reason. The City asserts it had the power to terminate Ainley’s claims
under the legislative power to tax.
Legislatures have the “power to cure defects in acts by local
government[s] that are undertaken without authority or without compliance with
the requirements for exercising authority.” Zaber v. City of Dubuque, 789 N.W.2d
634, 640–41 (Iowa 2010). “A curative act is a statute passed to cure defects in 6
prior law, or to validate legal proceedings, instruments, or acts of public or private
administrative authorities.” Id. at 644 (quoting 2 Norman J. Singer & J.D.
Shambie Singer, Statutes and Statutory Construction § 41:11, at 503 (7th ed.
2009)). While many legislative acts target a perceived defect in prior law, “[t]he
type of defect addressed by a curative act, as defined for purposes of
retroactivity analysis, is a failure of the prior legislation to conform to existing
legal requirements.” Id. Unless the prior act was illegal or void, any subsequent
remedial act cannot be classified as curative. Id. at 644–45.
In Kragnes v. City of Des Moines, 714 N.W.2d 632, 633 (Iowa 2006), a
resident of Des Moines sued the city claiming the franchise fees the city
assessed for gas and electric utilities exceeded the level allowed by Iowa law
and, therefore, amounted to illegal taxes. Our supreme court found the city had
the power to assess franchise fees, but “any franchise fee charged by a city must
be reasonably related to the city’s administrative expenses in the exercise of its
police power.” Kragnes, 714 N.W.2d at 642. Accordingly, the court held that
franchise fees that were not “reasonably related to the city’s administrative
expenses” were illegal taxes and must be disallowed. Id. at 643.
In Zaber, our supreme court found an act to be curative where the
legislature enacted a statute that retroactively authorized franchise fees for
various utilities and cable television services. 789 N.W.2d at 642. The fees
collected by the city and paid by taxpayers in Zaber were held to be illegal taxes,
as was the case in Kragnes, because they exceeded the level authorized by
Iowa law. Id. at 636–37. Yet, the court in Zaber upheld the retroactive
authorization of the fees because authorization was within the power of the 7
General Assembly at the time the fees were collected. Id. at 642. Because the
prior imposition of the tax was illegal, the court determined the retroactive
authorization by the legislature qualified as a curative act. Id.
In this case, there is no dispute the City’s prior acts—the 2003
ordinances—were neither illegal nor void. The City adopted a franchise fee
based on a percentage of gross revenue, as it was authorized to do by Iowa law.
See Iowa Code § 364.2(2) (2003); see also Iowa Code § 364.2(4)(f) (2003)
(specifically referencing franchise fees). While the City amended the 2003
ordinances with the 2014 ordinances, by eliminating previously allowed refunds,
the 2014 ordinances did not correct “a failure of the prior legislation to conform to
existing legal requirements.” Zaber, 789 N.W.2d at 644. The 2003 ordinances
were legal and valid as originally adopted; therefore, the 2014 ordinances cannot
be classified as curative acts. Rather, the 2014 ordinances are retroactive taxes.
B. Substantive Due Process
Ainley next argues its substantive due process rights were violated
because the 2014 ordinances were retroactive taxes. In response, the City first
argues Ainley failed to preserve error on its substantive due process claim.
i. Error Preservation
The City argues Ainley failed to preserve error on the substantive due
process claim. The City claims the district court did not consider the issue of a
substantive due process violation and Ainley failed to move to amend or enlarge
the ruling under Iowa Rule of Civil Procedure 1.904(2). Ainley asserts error was
preserved on the substantive due process issue and points to the language used 8
in the district court’s order as evidence the district court considered and rejected
its claim.
“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
However, it should be emphasized that the foregoing rule is not concerned with the substance, logic, or detail in the district court’s decision. If the court’s ruling indicates that the court considered the issue and necessarily ruled on it, even if the court’s reasoning is “incomplete or sparse,” the issue has been preserved.
Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). Error may be preserved
even if “the record or ruling on appeal contains incomplete findings or
conclusions.” Meier, 641 N.W.2d at 539.
We agree with Ainley; the language and substance of the district court’s
order indicate that it considered the substantive due process claim. The court
referred to Zaber and described the City’s 2014 ordinances as “corrective,” or as
termed in Zaber, “curative” acts. Once it determined the 2014 ordinances were
curative acts, the court proceeded to quote heavily from Zaber and the
substantive due process analysis. See Zaber, 789 N.W.2d at 646–53 (applying
substantive due process test to a curative act). Indeed, the court’s order
discusses the duty of the City to protect tax dollars and the financial burden
Ainley’s refund requests would have placed on the City, which indicates the court
engaged in a rational basis analysis. The court also quoted rational basis review
language from United States v. Carlton, 512 U.S. 26, 30–31 (1994) (“Provided
that the retroactive application of a statute is supported by a legitimate legislative
purpose furthered by rational means, judgments about the wisdom of such 9
legislation remain within the exclusive province of the legislative and executive
branches.” (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S.
717, 729–30 (1984))). Although the district court did not explicitly use the term
“substantive due process,” it clearly considered the appropriate analysis and
rejected Ainley’s substantive due process claim. Accordingly, we conclude
Ainley preserved error on this issue.
ii. Rational Basis Test
On the merits of Ainley’s substantive due process claim, the City argues
the franchise fee refunds were purely legislative acts and it was free to amend its
refund process and deny Ainley’s refunds. It asserts: “[A r]efund is a matter of
grace, and there is not any point or concept of law which compels any legislative
body to grant, extend or continue any act of grace.” We agree that it was within
the City’s power to change its franchise fee refund process prospectively,
denying future refunds and thereby increasing its tax revenues. However, when
a tax statute is retroactive, due process principles are implicated. See Carlton,
512 U.S. at 30; Zaber, 789 N.W.2d at 639. Therefore, the retroactive imposition
of the 2014 ordinances must be analyzed under substantive due process
principles.
Retroactive taxes do not violate due process principles if they are
supported by a legitimate legislative purpose and furthered by rational means.
See, e.g., Carlton, 512 U.S. at 35 (upholding a retroactive tax which eliminated a
deduction in the federal estate tax statute). Traditionally, under Iowa law, a two-
part test was used to determine whether a retroactive tax offended due process
principles. City Nat’l Bank of Clinton v. Iowa State Tax Comm’n, 102 N.W.2d 10
381, 384 (Iowa 1960). A retroactive tax passed the two-part test if: (1) it was not
harsh and oppressive; and (2) the period of retroactivity was modest. Id. This
was also the federal due process test for retroactive taxes. See, e.g., Welch v.
Henry, 305 U.S. 134, 147 (1938). However, in Carlton, the United States
Supreme Court reformulated the two-part test as: (1) whether the purpose in
enacting the retroactive application of the statute was illegitimate or arbitrary; and
(2) whether the legislature “acted promptly and established only a modest period
of retroactivity.” Carlton, 512 U.S. at 32.
While our supreme court has yet to explicitly adopt the reformulated two-
part test from Carlton, the Carlton reformulation is consistent with how the Iowa
Supreme Court has described Iowa’s traditional test. See Zaber, 789 N.W.2d at
645 (“As we have observed, due process requirements are satisfied ‘simply by
showing that the retroactive application of the legislation is itself justified by a
rational legislative purpose.’” (quoting Pension Benefit Guar. Corp., 467 U.S. at
729)); Gen. Expressways, Inc. v. Iowa Reciprocity Bd., 163 N.W.2d 413, 424
(Iowa 1968) (“Generally-speaking, revenue-producing legislation which has a
retroactive aspect is constitutionally permissible unless the same is so unfair,
unjust and unreasonable, as to be in violation of the due process provisions of
the constitutions.”). Therefore, in applying the rational basis test to the
retroactive tax here, we will use language compatible with Carlton and Zaber.
In order to determine whether retroactive application of a law is supported
by a legitimate legislative purpose, we must first determine what the legislative
purpose was. Zaber, 789 N.W.2d at 645 (discussing the purpose of the
retroactive legislation). The City’s purpose in adopting the 2014 ordinances was 11
to protect its finances and thereby its orderly administration. The refund
applications spanned a number of years and totaled an amount the City did not
feel it was able to pay. The City had already spent much of the fees collected on
city services and wanted to avoid any economic hardship involved in processing
Ainley’s refunds. Protection of public monies is a legitimate legislative purpose.
See id. at 645–46. However, “any time a city must pay out funds the public fisc is
at risk.” Id. at 657 (Wiggins, J., dissenting).
With the purpose of the 2014 ordinances to protect the public fisc, we
must determine whether that purpose justifies the retroactive application of the
ordinances. In Zaber, the court noted two key distinctions between curative acts
and retroactive taxes. Id. at 646–47. Regarding curative acts, the money has
already been collected and spent and the taxpayer was aware of the fee prior to
entering the transaction. Id. at 646. Regarding retroactive taxes, usually the
money has not yet been collected and the taxpayer was not aware of the fee
going into the transaction. Id. at 646–47. The retroactive tax here is somewhat
unusual because the money has been collected because the refund process
required exempt parties to pay the franchise fees first and then apply for a
refund. Additionally, while the franchise fees appeared on Ainley’s utility bills, it
was unaware that it was eligible for a refund.
This case presents an unusual situation to be labeled a retroactive tax, in
that the fees have already been collected and spent and Ainley was unaware that
it was exempt and eligible for a refund. Ainley paid the fees as part of its monthly
utility bills and did not have the option of simply not paying the fees. While
denying Ainley refunds, the City paid sizable refunds to other entities, some 12
stretching back to 2003. It appears the only difference in passing the 2014
ordinances to deny the Ainley refunds was the sheer number of entities
requesting refunds and the amount of the refunds. While the City may not find it
readily feasible to issue the refunds, the City’s current budgetary considerations
do not justify the retroactive application of the 2014 ordinances. When the initial
ordinances were passed in 2003, the City was aware it was not entitled to retain
all of the tax collected because a portion of that tax, for certain entities, would be
subject to refund. Indeed, it was paying refunds each year. Yet, it did not
segregate the exempt portion in its budgetary planning such that it could comply
with its own 2003 ordinances.
As the district court noted, “[i]t bears not on the decision for its return, that
the City has already spent the fees.” On the contrary, denial of otherwise
authorized refunds, resulting in the equivalent of the imposition of a retroactive
tax under the guise of protecting public monies are both illegitimate and arbitrary
purposes. Accordingly, the 2014 ordinances fail the first part of the substantive
due process test for retroactive taxes.
We now turn to whether the City “acted promptly and established a
modest period of retroactivity.” Carlton, 512 U.S. at 32. Iowa has adopted a
bright-line rule regarding the period of retroactivity for retroactive taxes. Shell Oil
Co. v. G.D. Bair, 417 N.W.2d 425, 431–32 (Iowa 1987) (“We have previously
held that tax laws may be retroactively applied to affect receipt of income during
the year of the legislative session preceding that of its enactment.”). The period
of retroactivity can extend “no further than two years, or up to the adjournment of
the last previous legislative session.” City Nat’l Bank of Clinton, 102 N.W.2d at 13
384. The 2014 ordinances denying the refunds established a period of
retroactivity that extended back to the adoption of the franchise fee ordinances in
2003. This period runs afoul of Iowa’s limitation on the period of retroactivity for
tax laws. See id. Accordingly, the City did not adopt a modest period of
retroactivity, and the 2014 ordinances fail the second part of the substantive due
process test for retroactive taxes.2
C. Equal Protection
Because we hold the City’s 2014 ordinances violated substantive due
process and consequently reverse, we decline to address Ainley’s equal
protection claim.
IV. Conclusion
Because we conclude the 2014 ordinances adopted by the City were a
retroactive tax, and not a curative act, and agree the ordinances violated Ainley’s
substantive due process rights, we reverse the district court and remand for entry
of judgment on Ainley’s cross-motion for summary judgment and for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Vaitheswaran, J., concurs; McDonald, J., dissents.
2 Ainley conceded at oral argument that a five-year statute of limitations applies to Ainley’s refund claims. See Iowa Code § 614.1(4). 14
MCDONALD, Judge. (dissenting).
I concur in the majority’s conclusion that the ordinance at issue is not a
“curative act” within the meaning of our case law. As relevant here, a curative
act is one passed “to validate legal proceedings or acts of public administrative
authorities.” Zaber v. City of Dubuque, 789 N.W.2d 634, 640 (Iowa 2010)
(internal quotation marks and citations omitted). The essence of the curative act
is that it “cure[s] defects in acts by local government that are undertaken without
authority or without compliance with the requirements for exercising authority.”
Id. at 641. As the majority notes, the legislature had already provided
municipalities with the authority to impose a franchise fee. The municipality also
had the authority to exempt certain sales from the franchise fee. The 2014
ordinance thus did not provide authority to assess or otherwise validate the city’s
franchise fee—the authority already had been given. While the city is correct that
the 2014 ordinance was intended to remedy a concern raised by the plaintiffs’
claims for rebates, the remedial purpose of the statute does not make it a
“curative act” within the meaning of our case law. See United States v. Carlton,
512 U.S. 26, 36 (1994) (O’Connor, J., concurring) (noting that “[e]very law
touching on an area in which [the legislative body] has previously legislated can
be said to serve the legislative purpose of fixing a perceived problem with the
prior state of affairs”); Zaber, 789 N.W.2d at 643-44 (explaining the distinction
between the “curative nature” of a statute—“the correction of an unanticipated
problem in the original legislation”—and “whether the statute was classified as a
curative act for purposes of retroactivity analysis”). The curative-act doctrine is
inapplicable here. 15
I respectfully dissent from the majority’s conclusions that the 2014
ordinance is a retroactive tax, that application of the 2014 ordinance violated the
plaintiffs’ substantive due process rights as a matter of law, and that this matter
should be remanded with instruction to enter judgment in favor of the plaintiffs. A
retroactive tax is one that that “imposes a new tax or liability on past
transactions.” Zaber, 789 N.W.2d at 642. The hallmark of a retroactive tax is
“one that is being assessed and collected after enactment of the new statute, i.e.,
the tax is imposed after the event being taxed has occurred.” Id. at 645. The
2003 ordinances imposed a franchise fee, exempted certain sales from the
franchise fee, and provided a mechanism for the rebate of fees collected on
exempt sales:
The fee imposed by Sec. 1 shall not apply to any sale . . . that is exempt under Iowa Code § 422.45 from the tax imposed by Iowa Code § 422.43 and in computing the amount of the fee, the Company shall not include such sales, unless it is impracticable to do so, in which event the City Manager may provide for a rebate of the amount of the fee for such exempt sales . . . to the Company’s customers.
In 2014, after the plaintiffs filed suit, the city amended the prior ordinances as
follows:
(1) Effective July 1, 2013, the fee imposed by Section 1 of Ordinance No. 59-03, as amended by Section 1 of Ordinance No. 76-03 and Section 1 of Ordinance No. 8-10, shall not apply to any sale of natural and mixed gas by the Company that is exempt under Iowa Code Sec. 423.3 from the tax imposed by Iowa Code Sec. 423.2 and in computing the amount of the fee, the Company shall not include such sales, unless it is impracticable to so, in which event the City Manager shall provide a rebate of the amount of the fee for such exempt sales of natural and mixed gas to Company’s customers provided a written request is submitted by a customer to the City Manager in the City’s fiscal year (July 1 – June 30) in which the customer pays such fees. 16
(2) Any rebate of franchise fees which may have been available under any prior amendment or ordinance which was not paid prior to July 1, 2013, is declared void and any claim for any such rebate shall not be honored or paid by the city.
The 2014 amendment does not assess a new franchise fee and apply it to past
conduct. The 2014 amendment does not repeal the prior exemption and make
the repeal retroactive. To the contrary, the 2014 amendment maintains the tax
exemption for certain sales. The 2014 amendment also maintains a process to
allow customers to claim rebates for exempt transaction. It is unclear to me how
an ordinance that does not impose a tax, that maintains a prior tax exemption,
and that allows for a rebate can be considered a retroactive tax. See Burlington
N. R.R. Co. v. Strackbein, 398 N.W.2d 144, 147 (S.D. 1986). The retroactive-tax
doctrine is inapplicable here.
What is at issue in this case is the legality of the city’s limitation of the
plaintiffs’ remedy in obtaining a rebate of franchise fees voluntarily paid for years
without protest. The 2014 ordinance limits the plaintiffs’ remedy in two respects.
First, it imposes a procedural requirement that the party seeking a rebate file a
written request during the fiscal year in which the fees were paid. This limitation
is akin to a statute of limitations. Second, the 2014 ordinance declares void any
claim for rebate not paid prior to July 1, 2013. This limitation is akin to a statute
of repose. There is little doubt the city had the right to impose a limitation period
and a period of repose. The more difficult question is whether the 2014
ordinance lawfully could be applied retrospectively to the plaintiffs after the
plaintiffs already had made a claim and then filed suit under the prior ordinance. 17
The cases upon which the majority relies do not answer this more difficult
question. But there are cases that shed light on the question. For example:
Woodmoor argues that, if the two-year statute of repose applies, this application violates the prohibition against retrospective laws found in Colo. Const. art. II, § 11, by removing its vested right in a six-year repose period. We disagree. There is no vested right in remedies. The abolition of an old remedy, or the substitution of a new one, does not constitute the impairment of a vested right. Sections 39–10–113, C.R.S. (1993 Cum. Supp.) and 39–10– 114(1), C.R.S. (1993 Cum. Supp.) are remedial. They provide a specific remedy—abatement and refund. This remedy does not exist independent of the statute because once taxes are paid, even when assessed erroneously or illegally, they cannot be refunded absent express statutory authorization. Hence, these remedies can be abolished or changed because there is no vested right in their operation.
Woodmoor Improvement Ass’n v. Prop. Tax Adm’r, 895 P.2d 1087, 1089 (Colo.
App. 1994) (citations omitted). Similarly:
The focus of a statute of repose is entirely different from the focus of a statute of limitations. The latter bars a plaintiff from proceeding because he has slept on his rights, or otherwise been inattentive. Therefore, it is manifestly unjust to tell somebody that he has X years to file an action, and then shorten the time in midstream. However, a statute of repose proceeds on the basis that it is unfair to make somebody defend an action long after something was done or some product was sold. It declares that nobody should be liable at all after a certain amount of time has passed, and that it is unjust to allow an action to proceed after that. In this case, for example, there was an attempt to sue the manufacturer for the allegedly defective design of a part of an aircraft that had been in service for some 23 years after it was first sold. While an injured party might feel aggrieved by the fact that no action can be brought, repose is a choice that the legislature is free to make.
Lyon v. Agusta S.P.A., 252 F.3d 1078, 1086 (9th Cir. 2001). By way of further
example. See, e.g., Bob McKiness Excavating & Grading, Inc. v. Morton Bldgs.,
Inc., 507 N.W.2d 405, 410 (Iowa 1993) (“The Constitution does not forbid the
abolition of old rights recognized by the common law, to attain a permissible 18
legislative object. Thus, if the legislature can abolish a cause of action for a
legitimate purpose, it also may prevent a cause of action from arising by enacting
a statute of repose. Limitation periods are by definition arbitrary, and their
operation does not discriminate between the just and the unjust claim, or the
avoidable and unavoidable delay.”) (alterations, quotations marks, and citations
omitted); Thorp v. Casey’s General Stores, Inc., 446 N.W.2d 457, 463 (Iowa
1989) (holding statute “that deprived plaintiff of her cause of action does not fall
within those categories of curative or emergency legislation that involve an
overriding public interest and which can constitutionally be applied retroactively”);
State v. Simmons, 290 N.W.2d 589, 594 (Iowa 1980) (refusing to give
retrospective effect to amendment to statute of limitations to case already filed
where the legislature did not intend retrospective effect); Thoeni v. City of
Dubuque, 88 N.W. 967, 968 (Iowa 1902) (“It will be conceded that statutes of
limitation, pertaining, as they do, to the remedy, may be extended or abbreviated
by act of the legislature, and that, generally speaking, such changes may be
made retroactive and applicable to existing rights. It is well settled, however,
that, with but few exceptions, it is not competent for the legislature to cut off all
remedy, and that the right to sue within the existing statute of limitations is
property, which cannot be thus summarily destroyed.”); Harding v. K.C. Wall
Prods., Inc., 831 P.2d 958, 967–68 (Kan. 1992) (“A statute of limitations
extinguishes the right to prosecute an accrued cause of action after a period of
time. It cuts off the remedy. It is remedial and procedural. A statute of repose
limits the time during which a cause of action can arise and usually runs from an
act of a defendant. It abolishes the cause of action after the passage of time 19
even though the cause of action may not have yet accrued. It is substantive.
Thus, Kansas constitutional protection applies only to statutes of repose because
they pertain to substantive rights.”); King v. Campbell Cty., 217 S.W.3d 862, 870
(Ky. Ct. App. 2006) (noting that where the legislature “has not attempted to
withdraw legislation upon which taxpayers have relied in structuring their affairs,
but has promptly sought to foreclose refunds” retroactivity concerns are not
implicated); Vogel v. Lyman, 668 N.Y.S.2d 162, 164 (N.Y. App. Div. 1998)
(holding amended statute of limitations “does not apply to bar actions . . .
commenced prior to its effective date”); Universal Film Exchs., Inc. v. Bd. of Fin.
& Revenue, 185 A.2d 542, 545 (Pa. 1962) (“At common law a voluntary payment
of taxes, erroneously made, could not, in the absence of a statute, be recovered.
It follows that since a State need not allow recovery of taxes or other moneys
voluntarily but erroneously paid, it can impose reasonable restrictions on any
recovery it does allow.”); State ex rel. Van Emmerik v. Janklow, 304 N.W.2d 700,
705 (S.D. 1981) (“It is apparent here that petitioner’s asserted right is not based
on any substantial equity. The unauthorized tax had been mistakenly collected
without interruption since 1969 and petitioner presumably shared in whatever
public benefits the tax funded. Where an asserted vested right that is not linked
to any substantial equity arises from the mistake of officers purporting to
administer the law in the name of the State, the Legislature is not prevented from
curing the defect in administration simply because the effect may be to destroy
claims that would otherwise exist.”).
To resolve this appeal, we do not need to resolve the ultimate issue of
whether the city could lawfully restrict the plaintiffs’ remedies in obtaining rebates 20
on grounds other than the curative-act doctrine. The parties did not raise or brief
the issues in the district court and did not raise or brief the issues on appeal. To
resolve this appeal, it is enough to say the district court erred in granting the
city’s motion for summary judgment on the ground the 2014 ordinance was a
curative act. I would remand this matter for further proceedings not inconsistent
with this opinion.