Francis Livingood, Christoper Maury, and Daniel Robbins v. City of Des Moines, Iowa

• Court: Supreme Court of Iowa
• Decided: June 9, 2023
• Docket: 22-0536
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 22–0536

Submitted February 22, 2023—Filed June 9, 2023

FRANCIS LIVINGOOD, CHRISTOPHER MAURY, and DANIEL ROBBINS,

Appellants,

vs.

CITY OF DES MOINES, IOWA,

Appellee.

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

Judge.

Plaintiffs appeal from the district court order granting summary judgment

in favor of a municipality on challenges to the municipality’s use of the state

income offset program to collect automated traffic citations not reduced to a legal

judgment. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

McDonald, J., delivered the opinion of the court, in which all justices

joined. Mansfield, J., filed a concurring opinion.

Claire M. Diallo (argued), and James C. Larew of Larew Law Office, Iowa

City, for appellants.

Michelle Mackel-Wiederanders (argued) and Luke DeSmet, Assistant City

Attorneys, Des Moines, for appellee. 2

McDONALD, Justice.

Several vehicle owners brought this suit to challenge the City of

Des Moines’ use of the state’s income offset program to collect automated traffic

citation penalties not reduced to a judgment in a municipal infraction

proceeding. In their petition, the vehicle owners contended the city’s use of the

income offset program: (1) was an unlawful property tax, (2) violated the statute

of limitations, (3) amounted to an unconstitutional taking, (4) was preempted by

state law, (5) violated their state constitutional right to due process of law, and

(6) constituted unjust enrichment. The parties filed cross-motions for summary

judgment. The district court denied the vehicle owners’ motion for summary

judgment and granted the city’s motion for summary judgment. The vehicle

owners timely filed this appeal. We affirm in part and reverse in part the

judgment of the district court.

I. The City’s Automated Traffic Enforcement Program.

We begin with an overview of the city’s automated traffic enforcement (ATE)

program as operated during the time relevant to this case. See Des Moines, Iowa,

Mun. Code § 114-243 (2017).1 Under the program, the city used fixed cameras

to enforce certain municipal traffic laws. When a traffic camera detected a

violation of the traffic laws, the camera took a photo or video and sent it to

GATSO, a third-party vendor hired to administer the ATE program. GATSO ran

the license plate information from the photo or video through Nlets, “a network

1Des Moines Municipal Code section 114-243 was amended in July 2017. For the purpose of this appeal, the parties agree that Ordinance No. 14,885, passed in September 2009, is the relevant ordinance. 3

communication center that connects over 55,000 law enforcement and judicial

agencies in North America.” Once GATSO determined the owner of the vehicle

depicted, GATSO sent the information to the Des Moines Police Department for

review. A police officer reviewed each photo or video and determined whether a

violation should be pursued. If the officer determined a violation should be

pursued, GATSO issued a notice of violation to the owner of the vehicle. Id.

§ 114-243(d)(1).

The notice of violation sent to the vehicle owner included a photo of the

alleged violation, the name and badge number of the police officer who reviewed

the information, the amount of the civil penalty, and a website where the vehicle

owner could review a recording of the violation and pay the civil penalty. The

notice provided that a vehicle owner had “the right to contest this violation in

person at an administrative hearing or by mail if [the owner] reside[d] outside of

the State of Iowa.” The notice also provided, “Failure 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 or for filing in state district court.”

The options provided to the vehicle owner in the notice did not track the

city’s ATE ordinance. The city’s ordinance provided two options to a vehicle

owner issued a notice of violation. Id. § 114-243(d)(1)–(2). First, the vehicle owner

could voluntarily pay the penalty. Id. § 114-243(d)(1). Second, the vehicle owner

could “dispute the citation by requesting an issuance of a municipal infraction

citation by the police department.” Id. § 114-243(d)(2). 4

Just as the notice of violation did not track the city’s ordinance, the city

did not follow its ordinance when enforcing the citation. At all times relevant to

this proceeding, the municipal code provided, “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.” Id. § 114-243(d)(3).

In other words, if an alleged violator did not pay the civil penalty and did not

request the city issue a municipal infraction citation, the city was supposed to

commence a municipal infraction proceeding.

Instead of adhering to its ordinance, the city commenced collection efforts

outside court. If a vehicle owner did not pay or respond to the notice of violation

within thirty days, GATSO sent a second notice. The second notice provided,

“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.” Once the

notice of violation was outstanding for more than sixty days, GATSO transferred

the matter back to the city.

After the notice of violation was transferred back, the city availed itself of

the state’s income offset program to collect the civil penalty. The income offset

program allows the department of administrative services to “establish a debt

collection setoff procedure for collection of debts owed to [a] public agency.” Iowa

Code § 8A.504(1)(a) (2017). Generally speaking, the income offset program allows

the department of administrative services to collect debts for public agencies by 5

offsetting the debts against any income tax refund owed to a taxpayer. The city

entered into a memorandum of understanding with the department of

administrative services to use the income offset program. The memorandum

provided that only debts “in the form of a liquidated sum due, owing and payable”

were eligible for placement in the program. The memorandum further provided

that “[a]ll applicable remedies with regard to such a debt and claim must be

exhausted . . . as a condition precedent for eligibility to participate in the offset

program.” It was the city’s obligation to develop and maintain a system for

reporting eligible debts to the department. It was also the city’s obligation to

ensure that the debts referred to the income offset program were “legally

enforceable.” Under the terms of the memorandum, “To establish enforceability

the debt shall . . . have been reduced to a final judgment or final agency

determination that is no longer subject to appeal, certiorari, or judicial review,

or has been affirmed through appeal, certiorari, or judicial review.”

Before placing an alleged debt with the department of administrative

services for collection in the income offset program, the city sent a reminder

postcard to the vehicle owner regarding the alleged debt. The reminder postcard

stated that an owner could “request an informal hearing, pursuant to Municipal

Code Section 3-27, regarding placement of this debt in the State of Iowa Income

Offset Program” by writing the City of Des Moines finance director.

If the vehicle owner did not respond within thirty days of receiving the

postcard, the status of the debt changed to “offset eligible.” The city would then

send to the department of administrative services the vehicle owner’s name, 6

social security number, and the amount allegedly owed. Iowa Code

§ 8A.504(2)(b). If the department turned up a match, the department notified the

city and held the entirety of the vehicle owner’s income tax refund. The city would

then send the vehicle owner a “notice of intent to offset.” Id. § 8A.504(2)(f)(1). The

notice provided, “If payment, or proof of payment, is not received in full within

15 days of the date of this Notice, your state income tax refund will be applied

toward the balance of the citation(s).” The notice provided vehicle owners could

contest the amount due by contacting the city finance department but “the only

issue which will be reviewed is whether the amount due is correct under the

Municipal Code.” After receiving the notice, the vehicle owner could consent to

the offset, pay the ATE penalty to the city directly and receive the full income tax

refund, or contest the offset as set forth in the notice. Id. § 8A.504(2)(h).

II. Background and Procedural Posture.

A. The Plaintiffs: Francis Livingood, Christopher Maury, and Daniel

Robbins. The plaintiffs in this case are Francis Livingood, Christopher Maury,

and Daniel Robbins. Livingood’s vehicle was recorded traveling seventy-one miles

per hour in a sixty-mile-per-hour area on March 14, 2014. A notice of violation

was sent to Livingood’s address on March 20. The amount of the civil penalty

was $65. A second notice of violation was sent on May 6. Livingood did not

respond to either notice. In March 2015, the city sent a notice of intent to offset

Livingood’s $185 tax refund to obtain the $65 civil penalty he allegedly owed.

Livingood’s counsel contacted the city to dispute the offset. The city responded,

“It is our understanding that the Iowa Department of Revenue has issued 7

Mr. Livingood’s refund to him in its entirety. Since the funds have already been

released to Mr. Livingood, there is no need for a hearing on the matter at this

time.” In October 2016, however, the city sent Livingood a postcard stating that

if he did not pay the penalty by November, the ATE penalty would again be

referred to the income offset program. The record in this case reflects that

Livingood has not yet paid the penalty.

Maury’s vehicle was recorded traveling seventy-one miles per hour in a

sixty-mile-per-hour area on February 28, 2016. A notice of violation was sent on

March 4. The ATE penalty was $65. A second notice of violation was sent on

April 5. Maury did not respond to the notices. On September 23, the city sent

Maury a postcard reminder of the debt and notice that the alleged debt was being

sent to the income offset program. Maury did not respond. The following

February, the city sent Maury notice of intent to offset, informing him that his

$877 tax refund was being held due to nonpayment of the $65 penalty. Maury

called and consented to the city collecting the ATE penalty from his tax refund.

Robbins’s vehicle was recorded traveling seventy-one miles per hour in a

sixty-mile-per-hour area on June 17, 2012. A notice of violation was sent on

June 26, indicating Robbins owed a $65 ATE penalty. A second notice of violation

was sent on August 3. The same vehicle was recorded traveling thirty-seven

miles per hour in a twenty-five-mile-per-hour area on March 31, 2015. A notice

of violation was sent on April 7, and a second on May 15. The penalty for the

second violation was $65. On May 21, 2016, and December 14, the city sent

postcard reminders regarding the debts and notice that the debts would be 8

referred to the income offset program. Robbins did not respond. On April 28,

2017, the city sent Robbins a notice of intent to offset his $205 tax refund to

obtain the $130 allegedly owed. Shortly thereafter, $130 was offset from

Robbins’s state income tax refund and the remainder was remitted to him.

B. District Court Proceedings. The petition in this case was filed on

February 9, 2017. The original plaintiffs were Jason Fett, Andrea Schramm,

and Livingood. Significant motion practice took place after the filing of the

initial petition, including the dismissal of plaintiffs Fett and Schramm and the

addition of new plaintiffs.

The operative petition in this appeal is the third amended petition. In that

petition, Livingood, Maury, and Robbins alleged: (1) the city’s ATE ordinance was

an unlawful property tax not authorized by the general assembly and in violation

of Iowa Code section 364.3; (2) the city’s collection efforts, including use of the

income offset program, violated the statute of limitations set forth in Iowa Code

section 614.1(1); (3) the city’s use of the income offset program amounted to an

unconstitutional taking in violation of article I, section 18 of the Iowa

Constitution; (4) the city’s use of the income offset program to collect a civil

penalty not reduced to a judgment was preempted by Iowa Code section 364.22;

(5) the city’s use of the income offset program violated their rights to due process

of law under article I, section 9 of the Iowa Constitution; and (6) the city’s use of

the income offset program to enforce automatic traffic citations not reduced to a

judgment constituted unjust enrichment. They sought injunctive relief,

declaratory relief, and damages, including attorney fees and costs for each claim. 9

The parties filed cross-motions for summary judgment on all claims. The

district court denied the plaintiffs’ motion, granted the city’s motion, and

dismissed all of the plaintiffs’ claims. On appeal, the plaintiffs challenge the

district court’s rulings on each of their claims except the unlawful tax claim. We

review the district court’s summary judgment rulings for the correction of errors

at law. Kostoglanis v. Yates, 956 N.W.2d 157, 158 (Iowa 2021).

III. Statute of Limitations Claim.

The plaintiffs claim the city violated the statute of limitations by collecting

or attempting to collect ATE penalties through the income offset program more

than one year after the alleged traffic violation. See Iowa Code § 614.1(1)

(providing actions to enforce municipal infractions must be brought within one

year). The district court dismissed the claim on the ground the city was “not

violating the statute of limitations because [it was] not bringing a court action.”

We conclude the district court did not err in dismissing this claim.

For the reasons explained in Stogdill v. City of Windsor Heights, ___ N.W.2d

___, ___ (Iowa 2023), filed today, the statute of limitations is inapplicable to the

city’s use of the income offset program because the statute of limitations does

not apply to collection efforts made outside of court proceedings. See id. at ___

(“The statute of limitations is wholly inapplicable to the city’s out-of-court

collection efforts.”). In addition, “The statute of limitations is not a cause of

action; the statute of limitations is an affirmative defense to a cause of action.”

Id. at ___. A party cannot “violate” the statute of limitations. See id. The plaintiffs’

statute of limitations claim fails as a matter of law. 10

IV. Unconstitutional Taking Claim.

Livingood, Maury, and Robbins claim the city’s use of the income offset

program amounts to an unconstitutional taking under the Iowa Constitution.

Article I, section 18 of the Iowa Constitution provides, “Private property shall not

be taken for public use without just compensation first being made.”

[This court has] set forth the following analysis concerning takings claims: (1) Is there a constitutionally protected private property interest at stake? (2) Has this private property interest been “taken” by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner?

Kelley v. Story Cnty. Sheriff, 611 N.W.2d 475, 479 (Iowa 2000) (en banc).

Plaintiffs contend that the city is taking their money for public use and that the

city must pay just compensation by returning the same money. The district court

dismissed this claim on the ground that no taking occurs when the city exercises

its police power to enforce penalties for violation of its law. We affirm the district

court’s dismissal of this claim.

The threshold question presented is whether state income tax refunds are

constitutionally protected private property. See id. Takings claims typically relate

to real property or chattels and not money. See, e.g., Kelley, 611 N.W.2d at

479–83 (arguing destruction of property by police during arrest amounts to

unconstitutional taking); Bormann v. Bd. of Supervisors, 584 N.W.2d 309,

313–14 (Iowa 1998) (en banc) (arguing designation of land as “agricultural area”

amounts to unconstitutional taking). Thus, “[t]akings are generally effected

through the power of eminent domain” or less formal regulatory takings related

to real or personal property. Lafaye v. City of New Orleans, 35 F.4th 940, 943 11

(5th Cir. 2022). Nonetheless, there is some authority standing for the proposition

that money can be property within the meaning of the takings clause in certain

contexts. See, e.g., Brown v. Legal Found. of Wash., 538 U.S. 216, 239–40 (2003)

(holding that state IOLTA programs requiring earned interest be donated for legal

services effected “taking” of property); Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 163–65 (1980) (holding statute allowing clerk of court

to keep all interest earned on interpleaded funds effected “taking” without just

compensation); McCarthy v. City of Cleveland, 626 F.3d 280, 284–87 (6th Cir.

2010) (discussing issue).

With that background, we conclude the income tax refunds at issue in this

case were constitutionally protected private property. The tax refunds were due

and owing to the plaintiffs, and the treasurer was required to pay them. Iowa

Code § 422.74. The conclusion that state income tax refunds are constitutionally

protected private property is consistent with our controlling authorities and

other persuasive authorities. See Hagge v. Iowa Dep’t of Revenue & Fin.,

539 N.W.2d 148, 154 (Iowa 1995) (holding state tax refund “was the individual

property or money of each taxpayer” and that district court lacked authority to

instruct withholding percentage of refund to pay attorney fees); In re Marriage of

Huffman, 453 N.W.2d 246, 247 (Iowa Ct. App. 1990) (discussing state income

tax refund as marital property subject to division); see also Kokoszka v. Belford,

417 U.S. 642, 648 (1974) (holding income tax refund was property within

meaning of bankruptcy code); U.S. Tr. v. Klages (In re Klages), 373 B.R. 902, 12

906–08 (Bankr. N.D. Iowa 2007) (holding tax refund was property of debtor’s

estate).

Although we conclude the plaintiffs’ income tax refunds were

constitutionally protected property, we cannot conclude that the city’s actions

here constituted a “taking” for “public use” within the meaning of article I,

section 18. “[T]he taking of money is different . . . from the taking of real or

personal property.” San Remo Hotel L.P. v. City & County of San Francisco,

41 P.3d 87, 106 (Cal. 2002) (quoting Ehrlich v. City of Culver City, 911 P.2d 429,

454–55 (Cal. 1996)). “[T]he principles of takings law that apply to real property

do not apply in the same manner to statutes imposing monetary liability.”

Branch v. United States, 69 F.3d 1571, 1576 (Fed. Cir. 1995). The purpose of the

takings clause is “to bar the Government ‘from forcing some people alone to bear

public burdens which, in all fairness and justice, should be borne by the public

as a whole.’ ” Tyler v. Hennepin Cnty., ___ U.S. ___ (2023) (quoting Armstrong v.

United States, 364 U.S. 40, 49 (1960)).

Here, the city is not taking property for a public use. It is not asking the

plaintiffs to bear a burden that should be borne by the public as a whole. Instead,

the city is collecting penalties allegedly owed for violation of its laws. The

government’s collection of money for the payment of fines in the exercise of its

police power is not a “taking” for “public use” and does not implicate the takings

clause. United States v. Droganes, 728 F.3d 580, 591 (6th Cir. 2013) (“[T]he

[g]overnment’s seizure and retention of property under its police power does not

constitute a ‘public use.’ ” (quoting Innovair Aviation Ltd. v. United States, 13

632 F.3d 1336, 1341 (Fed. Cir. 2011))); Swisher Intern., Inc. v. Schafer, 550 F.3d

1046, 1054 (11th Cir. 2008) (“[T]he takings analysis is not an appropriate

analysis for the constitutional evaluation of an obligation . . . merely to pay

money.”); Walker v. City of Chicago, No. 20–cv–01379, 2022 WL 17487813, at *5

(N.D. Ill. Dec. 6, 2022) (stating there was no constitutional taking where funds

were not taken “for a public purpose but instead to satisfy the owners’ debts”);

State v. Chesnel, 25 A.3d 946, 950 n.2 (Me. 2011) (“Nor did the collection of funds

from the prison account amount to an unconstitutional taking because the funds

were not ‘taken for public uses,’ but rather were collected to satisfy Chesnel’s

personal obligation to pay court fines.” (quoting Me. Const. art. I, § 21)); Smith v.

Or. Gov’t Ethics Comm’n, 564 P.2d 1368 (Or. Ct. App. 1977) (“[S]uffice it to state

the obvious: A fine or penalty . . . does not constitute a ‘taking’ for which

compensation need be provided.”).

Whether the city acted lawfully or unlawfully in exercising this power is

not material to the takings analysis. “[A]n exaction of money that is completely

unlawful, whether compensated or not, is not a taking.” Lafaye, 35 F.4th at 943.

A victim of lawless government action can seek compensation or other relief, as

the plaintiffs do here, but the city’s use of the income offset program to collect

an alleged debt is not a constitutional taking. The district court correctly

dismissed the plaintiffs’ taking claim.

V. Preemption Claim.

Plaintiffs next claim the city’s use of the income offset program is

preempted by state law. Specifically, plaintiffs contend Iowa Code section 364.22 14

requires that the city pursue a municipal infraction and obtain a judgment before

an ATE penalty can be involuntarily collected. The district court held the city’s

use of the income offset program to collect debts not yet reduced to a judgment

was authorized by Iowa Code section 8A.504 and was thus not preempted by

state law. For the reasons expressed below, we affirm in part and reverse in part

the district’s ruling on this claim.

A. The Law of Preemption, Generally. We begin our analysis with an

overview of the law of preemption with respect to state and local laws. “In 1968,

the Iowa Constitution was amended to provide municipal governments with

limited powers of home rule.” City of Davenport v. Seymour, 755 N.W.2d 533,

537–38 (Iowa 2008) (citing Iowa Const. art. III, § 38A). Under home rule

authority, the legislature “retains the unfettered power to prohibit a municipality

from exercising police powers, even over matters traditionally thought to involve

local affairs.” Id. at 538. On the other hand, a municipality may act without

express legislative approval so long as its laws are not inconsistent with the laws

of the general assembly. Id. “An ordinance is inconsistent with a law of the

general assembly and, therefore, preempted by it, when the ordinance prohibits

an act permitted by a statute or permits an act prohibited by a statute.” City of

Clinton v. Sheridan, 530 N.W.2d 690, 691 (Iowa 1995) (en banc).

Our cases “have recognized three types of preemption. The first type,

generally known as express preemption, applies where the legislature has

specifically prohibited local action in a given area.” Seymour, 755 N.W.2d at 538.

The second type of preemption is known as conflict preemption. See id. at 539. 15

Conflict preemption occurs when an “ordinance cannot exist harmoniously with

a state statute because the ordinance is diametrically in opposition to it.” Id. at

538. The third type of preemption is known as field preemption. Id. at 539. This

is a “narrow doctrine.” Id. Field preemption occurs “when the legislature has so

covered a subject by statute as to demonstrate a legislative intent that regulation

in the field is preempted by state law.” Id. “In order to invoke the doctrine of field

preemption, there must be some clear expression of legislative intent to preempt

a field from regulation by local authorities, or a statement of the legislature’s

desire to have uniform regulations statewide.” Id.

At issue in this case is conflict preemption. “The conflict preemption

doctrine is applicable only where the question presented is whether the

enactments of two governments can be reconciled and given legal effect.” Cedar

Rapids v. Leaf, No. 16–0435, 2017 WL 706305, at *8 (Iowa Ct. App. Feb. 22,

2017), aff’d, City of Cedar Rapids v. Leaf, 923 N.W.2d 184 (Iowa 2018). Properly

understood, conflict preemption addresses the question of whether a state law

conflicts with a municipality’s law and thus preempts it. The doctrine of conflict

preemption does not address and is not applicable where the question presented

is whether a municipality’s actions violate state law or its own law. Id. (“The

doctrine of conflict preemption is not implicated when the question presented is

whether the inferior government, in exercising its executive power to enforce a

particular enactment . . . , is in violation of an enactment of a superior

government.”). 16

In conducting a conflict preemption analysis, “we presume that the

municipal ordinance is valid.” Seymour, 755 N.W.2d at 539. We strive to interpret

state law and municipal law in a manner that renders them harmonious. Id. We

will not find an ordinance in conflict with state law unless the ordinance is

“irreconcilable” with state law. Id. “The cumulative result of these principles is

that for implied preemption to occur based on conflict with state law, the conflict

must be obvious, unavoidable, and not a matter of reasonable debate.” Id.

B. Preemption as Applied to the City’s Ordinances. In analyzing this

conflict preemption claim, we start with the relevant state law. Iowa Code

section 364.22 relates to municipal infractions. As relevant here, it sets forth the

procedures for municipal infraction proceedings:

6. In municipal infraction proceedings:

a. The matter shall be tried before a magistrate, a district associate judge, or a district judge in the same manner as a small claim. The matter shall only be tried before a judge in district court if the total amount of civil penalties assessed exceeds the jurisdictional amount for small claims set forth in section 631.1.

b. The city has the burden of proof that the municipal infraction occurred and that the defendant committed the infraction. The proof shall be by clear, satisfactory, and convincing evidence.

c. The court shall ensure that the defendant has received a copy of the charges and that the defendant understands the charges. The defendant may question all witnesses who appear for the city and produce evidence or witnesses on the defendant’s behalf.

d. The defendant may be represented by counsel of the defendant’s own selection and at the defendant’s own expense.

e. The defendant may answer by admitting or denying the infraction. 17

f. If a municipal infraction is proven the court shall enter a judgment against the defendant. If the infraction is not proven, the court shall dismiss it.

Iowa Code § 364.22(6).

This court has had several occasions to discuss the interplay between

section 364.22 and ATE programs. We have held that section 364.22 does not

preclude a city from collecting a voluntary payment of ATE penalties without first

filing a municipal infraction. Rhoden v. City of Davenport, 757 N.W.2d 239, 241

(Iowa 2008). We have held that Iowa Code section 364.22 does not preclude a

municipality from offering an informal administrative hearing in addition to what

is required under section 364.22. Leaf, 923 N.W.2d at 198. In Weizberg v. City

of Des Moines, however, we interpreted section 364.22 to be the exclusive means

by which a municipality could enforce an automated traffic citation involuntarily.

923 N.W.2d 200, 220 (Iowa 2018) (“[T]o 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.”).

The city disagrees and contends that the collection of ATE penalties

through use of the income offset program is an alternative means of involuntary

enforcement that is explicitly authorized by statute, namely Iowa Code

section 8A.504. Section 8A.504 provides that the department of administrative

services “shall establish and maintain a procedure to set off against any claim

owed to a person by a public agency any liability of that person . . . or such other

qualifying debt” owed to a public agency. Iowa Code § 8A.504(2) (emphasis 18

added). The city contends the ATE penalties fall within the meaning of “any

liability” and “other qualifying debt.” The city also relies on the department’s

administrative rule defining a “liability,” “debt,” or “qualifying debt” as “any

liquidated sum due, owing, and payable by a debtor to a public agency . . . [that]

may be accrued through . . . any legal theory regardless of whether there is an

outstanding judgment for that sum.” Iowa Admin. Code r. 11—40.1. In the city’s

view, these two provisions create an alternative means to enforce the penalties.

We are unpersuaded by the city’s argument. Citing Iowa Code

section 8A.504 as authority to collect ATE penalties merely begs the question.

Iowa Code section 8A.504 authorizes a municipality to refer to the income offset

program a liability “due, owing, and payable,” but neither the statute nor the

administrative rule defines when a liability becomes “due, owing, and payable.”

But the relevant question here is exactly that: When does an ATE penalty become

a liability or debt due, owing, and payable? On this question, we could not have

been clearer in our recent opinions regarding ATE programs. In Behm v. City of

Cedar Rapids, we recognized that “[u]nder Iowa Code section 364.22, no liability

arises until the city takes the affirmative step of filing an enforcement action in

district court and obtains a judgment against the defendant.” 922 N.W.2d 524,

562 (Iowa 2019). There is no liability or debt due, owing, and payable in the

absence of a judgment from the district court. Id. at 564–65 (holding that “no

liability of any kind attaches to a vehicle owner without the filing of a municipal

infraction” and stating relevant statutes do “not provide for any liability to arise

until the [municipality] takes the affirmative step of filing an enforcement action 19

in district court and obtains a judgment against the defendant”). We reiterated

this point in Weizberg, stating “that no enforceable obligation will arise unless

the [municipality] files a municipal infraction in small claims court and obtains

a judgment.” 923 N.W.2d at 215 n.4. The city also ignores another provision of

the administrative code that provides, “Public agencies may only place debts in

the offset program if the debts are legally enforceable.” Iowa Admin. Code

r. 11—40.3(3). Under section 364.22, as interpreted in Behm and Weizberg,

these alleged debts were not legally enforceable.

None of this should come as a surprise. It has long been the law of this

state that municipal infraction penalties cannot be enforced absent judicial

process. We first addressed this issue in 1856 in Gosselink v. Campbell, 4 Iowa

(Clarke) 296 (1856). In that case, the city passed an ordinance that allowed it to

seize and sell hogs to pay a civil penalty for public nuisance infractions without

first initiating a court proceeding. Id. at 301. A farmer challenged the collection

of the fine without judicial process. We held the city ordinance was “defective”

and not enforceable “upon the common ground that [a] fine cannot be . . .

enforced without trial and adjudication.” Id. We reaffirmed this principle a

century later in Marquart v. Maucker, 215 N.W.2d 278 (Iowa 1974). There we

explained that fines and penalties “may be legally imposed or assessed only by a

lawful tribunal.” Id. at 282.

The fact that section 8A.504 does not provide an alternative method to

enforce an ATE penalty does not completely resolve the conflict preemption issue.

We still must determine whether Iowa Code section 364.22, as interpreted in 20

Behm and Weizberg, conflicts with and preempts the city’s ATE ordinance. Until

2017, the ordinance provided, in relevant part:

(1) [A red light or speeding violation] shall be considered for a notice of violation for which a civil penalty in the amount specified in the schedule of administrative penalties adopted by city council by resolution shall be imposed, payable to the city of Des Moines at the city’s finance department or a designee.

(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 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.

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

We cannot conclude that Iowa Code section 364.22 was irreconcilable with

this ordinance and preempted it. The ordinance provided that the recipient of a

notice of violation could voluntarily pay the penalty, which we said does not

conflict with Iowa Code section 364.22. Rhoden, 757 N.W.2d at 241. The

ordinance also provided that the recipient of the notice could request the city

proceed with a municipal infraction proceeding, which we said section 364.22

allowed. Behm, 922 N.W.2d at 569. Further, the ordinance stated that if the

recipient of the notice did not pay the citation and did not request the city file a

municipal infraction, then the city would file a municipal infraction. This, too, 21

complied with Iowa Code section 364.22, as interpreted in Behm and Weizberg.

The problem with the city’s ATE ordinance was not that it was irreconcilable with

section 364.22, it was that the city did not comply with its own ordinance and

file a municipal infraction proceeding when the vehicle owner failed to pay the

penalty or request the city proceed with a municipal infraction. There is no

conflict preemption with respect to Des Moines Municipal Code

section 114-243—the city just acted unlawfully in violation of its own ordinance.

There are other relevant ordinances here as well. The city has adopted an

ordinance authorizing its participation in the state income offset program. See

Des Moines, Iowa, Mun. Code § 3-26 to -29. Pursuant to section 3-27, the city

shall provide notice to a debtor “that the debt will be placed in the offset program

and that the debtor shall have an informal opportunity to challenge such

placement by filing the challenge with the finance director within ten days of the

date of notice.” Id. 3-27(a). Although we have concluded that an ATE penalty is

not a liability or debt due, owing, and payable until reduced to a judgment

following a municipal infraction proceeding, this ordinance is not irreconcilable

with Iowa Code section 364.22. The ordinance, on its face, provides an alleged

debtor the opportunity to contest placement of an alleged debt in the program.

With respect to alleged ATE penalties, an alleged violator must be allowed to

contest placement on the ground that no debt is in fact due, owing, and payable

for failure to obtain a judgment, otherwise the ordinance would be preempted.

While the city’s referral of the civil penalty to the income offset program is

improper because no liability or debt is in fact due, owing, or payable in the 22

absence of a municipal infraction judgment, the opportunity provided to contest

placement in the income offset program makes the ordinance compatible with

Iowa Code section 364.22.

We reach a different conclusion with respect to Des Moines Municipal Code

section 3-29. When the department notifies the city of a potential offset, the city

must mail notice to the alleged debtor and provide the debtor with an opportunity

for a hearing. Id. § 3-28. At the hearing, the vehicle owner is not allowed to

challenge whether the penalty is due, owing, and payable. Instead, the ordinance

provides that if the vehicle owner did not request an administrative hearing or a

municipal infraction proceeding, then the “notice of violation is deemed a debt

subject to placement in the Des Moines Debt Offset Program.” Id. § 3-29. This

ordinance is in direct conflict with Iowa Code section 364.22, as interpreted in

Behm and Weizberg. As noted above, those cases provide that no enforceable

liability or debt arises “until the city takes the affirmative step of filing an

enforcement action in district court and obtains a judgment against the

defendant.” Behm, 922 N.W.2d at 562; see also Weizberg, 923 N.W.2d at 215 n.4

(“[N]o enforceable obligation will arise unless the [municipality] files a municipal

infraction in small claims court and obtains a judgment.”). Des Moines Municipal

Code section 3-29’s declaration that the civil penalty is a debt due, owing, and

payable without a municipal infraction judgment is directly contrary to and

irreconcilable with Iowa Code section 364.22. Compare Iowa Code § 364.22(6)

(providing procedure for establishing liability pursuant to municipal infraction), 23

with Des Moines, Iowa, Mun. Code § 3-29 (authorizing establishment of liability

contrary to Iowa Code § 364.22).

C. Disposition of Each Plaintiff’s Respective Preemption Claim.

Having concluded the city’s ordinances are preempted, in part, by Iowa Code

section 364.22, we must address the disposition of each of the plaintiffs’ claims.

Livingood, Maury, and Robbins have styled their preemption claim as a

cause of action. They seek damages, declaratory relief, and injunctive relief.

Damages are an inherently retrospective form of relief meant to compensate for

past wrongs already committed. Whereas declaratory and injunctive relief are

inherently prospective forms of relief meant to prevent future wrongs. As we

previously explained:

Declaratory actions differ from nearly all others, such as tort, contract, and most special actions. Typically, parties seek court judgments to resolve consequences of past acts or conduct. The view of most court proceedings is retrospective. The view for declaratory relief is prospective.

UAW v. Iowa Dep’t of Workforce Dev., No. 00–2112, 2002 WL 1285965, at *2 (Iowa

June 12, 2002) (per curiam); Melsha v. Trib. Pub. Co. of Cedar Rapids, 51 N.W.2d

425, 427 (Iowa 1952) (“The general purpose of a declaratory judgment is to

provide a speedy remedy for adjudication of legal rights before there has been an

invasion thereof, but generally this action is only maintainable where it will

accomplish some useful purpose.”).

Damages are not available for the plaintiffs’ “claim” of preemption.

Preemption is not a cause of action; preemption is an affirmative defense. See

Carroll Airport Comm’n v. Danner, 927 N.W.2d 635, 639, 641 (Iowa 2019) (stating 24

preemption is an affirmative defense); Martin v. Crook, No. 08–1711, 2009 WL

2392077, at *2 (Iowa Ct. App. Aug. 6, 2009) (preemption used as affirmative

defense); Leahy v. Deere & Co., No. 99–191, 2000 WL 700889, at *3 (Iowa Ct App.

May 31, 2000) (explaining conflict preemption is an affirmative defense); see also

Thermotek, Inc. v. Orthoflex, Inc, No. 3:11–CV–0870–D, 3:10–CV–2618–D, 2016

WL 4678888, at *4 (N.D. Tex. Sept. 7, 2016) (stating preemption is an affirmative

defense that can be waived); Lovegrove v. Ocwen Loan Serv., LLC,

No. 7:14cv00329, 2015 WL 5042913, at *3 (W.D. Va. Aug. 26, 2015) (stating

conflict preemption is an affirmative defense); Fostill Lake Builders, LLC v. Tudor

Ins., 338 S.W.3d 336, 344 (Mo. Ct. App. 2011) (same). Because preemption is

not a cause of action but an affirmative defense that must be raised in the

appropriate proceeding and at the appropriate time, it cannot support a claim

for damages and other monetary relief for past wrongs. The district court thus

did not err in dismissing this claim to the extent the plaintiffs seek monetary

relief for their claim of preemption.

With respect to declaratory and injunctive relief, these are not available to

plaintiffs Maury and Robbins. Maury and Robbins have already paid the civil

penalties. As will be discussed in more detail below, each had notice and an

opportunity to contest the referral of their penalties to the income offset program

and to present their preemption defense prior to offset, but neither requested a

hearing. Generally, “[a] declaratory judgment is meant to define the legal rights

and obligations of the parties in anticipation of some future conduct, not simply

to proclaim liability for a past act.” Just. Network Inc. v. Craighead County, 25

931 F.3d 753, 764 (8th Cir. 2019) (quoting Lawrence v. Kuenhold, 271 F. App’x

763, 766 (10th Cir. 2008)). And, “[g]enerally, rights already lost and wrongs

already committed are not subject to injunctive relief.” Engel v. Vernon,

215 N.W.2d 506, 516 (Iowa 1974). The district court thus did not err in

dismissing Robbins and Maury’s respective claims of preemption in their entirety

because neither is entitled to monetary, declaratory, or injunctive relief.

That leaves only Livingood’s claim for declaratory and injunctive relief. In

Iowa Ass’n of Business & Industry v. City of Waterloo, we held that a local

ordinance regulating employment practices was preempted, in part, by state law.

961 N.W.2d 465, 477–78 (Iowa 2021). Rather than holding the entire ordinance

preempted and without effect, we held that only the conflicting provisions should

be severed from the ordinance and given no legal effect. Id. at 478. We concluded

that remedy was appropriate, in part, because the ordinance had a severability

clause. Id. at 477–78.

As in Iowa Ass’n of Business & Industry, the city has a general severability

provision. It provides that if any decision finds part of the code is invalid, “such

decision shall not affect the validity of the remaining portions of this Code.” Des

Moines, Iowa, Mun. Code § 1-16. Accordingly, we hold that those parts of Des

Moines Municipal Code section 3-29 that (1) prohibit the recipient of a notice of

intent to offset from contesting the offset and (2) deem an ATE penalty not

reduced to judgment a debt “due, owing, and payable” are in conflict with,

preempted by, and rendered invalid by Iowa Code section 364.22. See Xenia

Rural Water Dist. v. City of Johnston, 959 N.W.2d 113, 124 (Iowa 2021) 26

(“Conflicting language in a county ordinance or resolution must yield to the

controlling state statute.”).

Livingood shall be entitled to assert this defense as to any claim of offset.

The district court erred in denying his motion for summary judgment and in

granting the city’s motion for summary judgment on this claim. We reverse the

judgment of the district court on this issue. On remand, the district court shall

enter the appropriate declaratory and injunctive relief in favor of Livingood.

VI. Procedural Due Process Claim.

The plaintiffs next contend the district court erred in dismissing their

claim that the city’s attempts to enforce the civil penalties violated their right to

procedural due process under article I, section 9 of the Iowa Constitution. The

district court dismissed the plaintiffs’ claim on the ground the civil penalties were

nominal and the plaintiffs were provided with multiple notices and opportunities

to protect those nominal interests. We affirm the district court’s ruling on this

issue.

“A party claiming a violation of procedural due process must first show an

impairment of an interest in life, liberty, or property by government action.”

Behm, 922 N.W.2d at 566. “Once a protected interest has been established, the

next question is what procedural minima must be provided before the

government may deprive the complaining party of the protected interest.” Id.

“Ordinarily, the procedural minima include two components—notice and an

opportunity to be heard on the issue.” Id. 27

Here, the plaintiffs were provided with multiple notices and opportunities

to be heard. They were provided with the original notice of violation and afforded

the opportunity to request a hearing. They were provided with a second notice

regarding the civil penalty. None of the plaintiffs took any action on either of

these notices. Each of the plaintiffs was provided notice of the city’s intent to

transfer the matter to the income offset program and an opportunity to challenge

the transfer. None of the plaintiffs took advantage of that opportunity. Finally,

each of the plaintiffs was provided with notice of an intent to offset. The plaintiffs’

failure to seek a hearing precludes their procedural due process claim.

As in Stogdill, the plaintiffs contend that even though they did not avail

themselves of these opportunities, the city nonetheless violated their rights to

due process by referring the ATE penalties to the income offset program without

first reducing the penalties to a judgment in a municipal infraction proceeding

pursuant to Iowa Code section 364.22. We rejected this argument in Stogdill,

___ N.W.2d at ___, and we reject it here as well. The government’s failure to

comply with a statute or ordinance does not necessarily establish a due process

violation. See Stogdill, ___ N.W.2d at ___; Weizberg, 923 N.W.2d at 214 (“The

failure to follow such a procedure or ordinance cannot give rise, in and of itself,

to a due process violation.”); Behm, 922 N.W.2d at 568 (“A mere violation of a

statute does not give rise to a due process violation . . . .”); Stuart v. City of

Dubuque Zoning Bd. of Adjustment, No. 19–1688, 2020 WL 6484041, at *4 (Iowa

Ct. App. Nov. 4, 2020) (affirming dismissal of due process claim premised on

Board’s failure to follow procedures in ordinance where plaintiffs nonetheless 28

received notice and an opportunity to be heard). “[I]n 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.” Weizberg, 923 N.W.2d at 214. Here, the parties were given multiple

notices and multiple opportunities to be heard, and they did not take advantage

of those opportunities. We affirm the judgment of the district court.

VII. Unjust Enrichment Claim.

This brings us to the plaintiffs’ final claim—unjust enrichment. The district

court dismissed this claim on the ground the city’s conduct was not in any way

unlawful. We affirm in part and reverse in part the judgment of the district court.

The concept of unjust enrichment is not a judicial remedy to correct

perceived injustices, unfairness, or inequities in a broad sense. Rather, the

doctrine involves a “narrower set of circumstances giving rise to what might more

appropriately be called unjustified enrichment.” Restatement (Third) of

Restitution & Unjust Enrichment § 1 cmt. b, at 4 (Am. L. Inst. 2011); see also

Rilea v. State, 959 N.W.2d 392, 394 (Iowa 2021) (“The circumstances giving rise

to an unjust enrichment cause of action might more appropriately be labeled

‘unjustified enrichment’ seeing as our focus centers on whether there has been a

‘transfer of a benefit without adequate legal ground.’ ” (quoting Restatement

(Third) of Restitution & Unjust Enrichment § 1 cmt. b, at 6)). In the technical

sense, “[u]njustified enrichment is enrichment that lacks an adequate legal

basis.” Restatement (Third) of Restitution & Unjust Enrichment § 1 cmt. b, at 4.

“The elements of unjust enrichment are (1) enrichment of the defendant, (2) at 29

the expense of the plaintiff, (3) under circumstances that make it unjust for the

defendant to retain the benefit.” Behm, 922 N.W.2d at 577.

The city concedes the first two elements of unjust enrichment are met, but

it disputes the third. The city argued in the district court and argues on appeal

that its administration of the ATE program was entirely lawful. As set forth

above, we disagree with the city’s assertion that its conduct was entirely lawful.

First, the city did not follow its own ordinance in collecting ATE penalties. The

text of the ordinance states “a municipal infraction citation will be issued” if a

vehicle owner fails to pay the citation or fails to request the city proceed with a

municipal infraction proceeding. Des Moines, Iowa, Mun. Code § 114-243(d)(3)

(emphasis added). The city did not file a municipal infraction proceeding as

required by its own law, however, and instead proceeded to extrajudicial

collection efforts. Second, the ATE penalties not yet reduced to a judgment were

not liabilities or debts due, owing, and payable when the city referred them to

the income offset program. See Weizberg, 923 N.W.2d at 220; Behm, 922 N.W.2d

at 561. It was the city’s obligation—pursuant to statute, the administrative code,

and its memorandum of understanding with the department of administrative

services—to ensure that the referred accounts were eligible for inclusion in the

income offset program. The city failed to comply with the law and referred

penalties that were not legally enforceable to the income offset program.

The city also contends the plaintiffs’ claim for unjust enrichment fails as

a matter of law because none of the plaintiffs dispute that they committed the

underlying traffic violations. The city is confusing two separate and distinct 30

issues. For the purposes of this claim, it is immaterial whether the recipient of

the citation in fact violated the traffic ordinance. Iowa Code section 364.22, as

interpreted in Behm and Weizberg, requires that the city obtain a judgment in a

municipal infraction proceeding to enforce the penalty against the owner.

Weizberg, 923 N.W.2d at 220; Behm, 922 N.W.2d at 561. It is the legality of the

extrajudicial collection effort—specifically, the holding of the plaintiffs’ income

tax refund—that is at issue and not whether the plaintiffs committed the

underlying offense. Cf. Rilea, 959 N.W.2d at 394 (“But the money Riley paid was

owed to the State as court debt because Rilea was adjudicated guilty in state

district court. . . . The fine is separate from the underlying citation. The payment

Rilea made was a product of a court’s adjudication.” (citation omitted)).

On the relevant point, the Restatement (Third) provides that the payment

of erroneously or illegally assessed taxes may give “the taxpayer a claim in

restitution against the taxing authority as necessary to prevent unjust

enrichment.” Restatement (Third) of Restitution & Unjust Enrichment § 19(1),

at 259. The collection of ATE penalties constitutes a “tax” within the meaning of

the Restatement. Id. (“ ‘Tax’ within the meaning of this section includes every

form of imposition or assessment collected under color of public authority.”). We

thus conclude the district court erred in part in granting the city’s motion for

summary judgment. The district court did not err with respect to Livingood, who

has not paid any ATE penalty and thus has not suffered any injury. The district

court erred with respect to Maury and Robbins, both of whom paid the ATE

penalty. See Kragnes v. City of Des Moines, 810 N.W.2d 492, 513 (Iowa 2012) 31

(affirming unjust enrichment award for illegal collection of franchise fees and

stating that “the most fair remedy in this case is the refund which will, to the

extent possible, refund to members of the plaintiff class the excess fees extracted

from them and restore the parties to the status quo ante”).

Although we conclude the district court erred in granting the city’s motion

for summary judgment, we cannot conclude that plaintiffs Maury and Robbins

were entitled to judgment as a matter of law. The only issue presented to the

district court with respect to unjust enrichment was the legality of the city’s

conduct. The parties did not present to the district court, and the district court

did not determine, whether there are any defenses to the claim of unjust

enrichment and whether there are any disputed issues of material fact

necessitating trial on this claim. For example, the Restatement provides that if

restitution with respect to an erroneously or illegally collected tax “would disrupt

orderly fiscal administration or result in severe public hardship, the court may

on that account limit the relief” available. Restatement (Third) of Restitution &

Unjust Enrichment § 19(2), at 259; see also Kragnes, 810 N.W.2d at 512

(discussing rule). And there are more traditional defenses, including, but not

limited to, voluntary payment, consent, waiver, estoppel, limitations, laches, etc.

See, e.g., Hug v. Am. Traffic Sols., Inc., No. 4:14CV00138 ERW, 2014 WL

2611832, at *7 (E.D. Mo. June 11, 2014) (“The voluntary payment doctrine is an

affirmative defense to the claim of unjust enrichment.”); Damon v. City of Kansas

City, 419 S.W.3d 162, 192–94 (Mo. Ct. App. 2013) (discussing unjust enrichment

and voluntary payment doctrine with respect to ATE penalties); Smith v. City of 32

St. Louis, 409 S.W.3d 404, 419–21 (Mo. Ct. App. 2013) (same). We express no

opinion on any of these issues except to say that on this record, the possibility

of defenses and disputed issues of material fact preclude the entry of judgment

as a matter of law for plaintiffs Maury and Robbins. See, e.g., Weizberg,

923 N.W.2d at 221 (“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.”).

VIII. Disposition.

We affirm the district court’s judgment in part and reverse in part. We

affirm the district court’s dismissal of the plaintiffs’ claim that the city violated

the statute of limitations. We affirm the district court’s dismissal of the plaintiffs’

claim that the city’s use of the income offset program amounts to an

unconstitutional taking. We affirm the district court’s dismissal of the plaintiffs’

claim for violation of their right to procedural due process. We affirm the district

court’s dismissal of Robbins and Maury’s preemption claims in their entirety

because they are not entitled to any form of relief on this claim. We affirm the

district court’s dismissal of Livingood’s preemption claim to the extent he seeks

damages because preemption is not a cause of action supporting a damages

claim, but we reverse the district court’s dismissal of Livingood’s preemption

claim with respect to his requests for declaratory and injunctive relief. We affirm

the district court’s dismissal of Livingood’s claim for unjust enrichment because

he has not paid any automated traffic citation penalty. We reverse the district 33

court’s grant of summary judgment in favor of the city with respect to Robbins

and Maury’s claim for unjust enrichment. We remand this matter for further

proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur and Mansfield, J., files a concurrence. 34

#22–0536, Livingood v. City of Des Moines

MANSFIELD, Justice (concurring).

I join the court’s thorough opinion. In particular, I agree that we have held

in prior automated traffic enforcement (ATE) cases that “no liability arises until

the city takes the affirmative step of filing an enforcement action in district court

and obtains a judgment against the defendant.” Behm v. City of Cedar Rapids,

922 N.W.2d 524, 562 (Iowa 2019); see also Weizberg v. City of Des Moines,

923 N.W.2d 200, 208, 215 n.4 (Iowa 2018). While the City of Des Moines could

structure the situation so that a vehicle owner who requests an administrative

hearing waives their right to a municipal infraction hearing, they have not done

so here. See Behm, 922 N.W.2d at 579–80 (Mansfield, J., concurring in part and

dissenting in part); Weizberg, 923 N.W.2d at 222 (Mansfield, J., concurring in

part and dissenting in part). And, in any event, neither Francis Livingood,

Christopher Maury, nor Daniel Robbins went through the administrative

process; all of them simply ignored the initial notices of ATE violations. As the

court recognizes, it was improper for the city to have a general policy of referring

individuals who had not paid ATE citations to the income tax program without

going through the municipal infraction process in Iowa Code section 364.22.

I also agree with the court that Des Moines Municipal Code section 3-29

is preempted in part by state law. Under state law, participating public agencies

such as the city that wish to refer a liability to the state’s offset program must

provide the alleged debtor with “an opportunity to contest the liability.” Iowa

Code § 8A.504(2)(f)(1) (2017). That is the purpose of section 3-29. The problem, 35

as noted by the majority, is that the section itself forecloses challenges to ATE

penalties “if the recipient of the notice failed to contest the notice pursuant

to section 114-243(2)” or “[i]f a hearing or issuance of a civil citation is not

timely requested pursuant to section 114-243(2) or pursuant to an

administrative hearing available at the time the notice was issued.” Des Moines,

Iowa, Mun. Code § 3-29 (2017).

In short, the administrative procedure provided by the city in section 3-29

was illusory because it didn’t give the individual who had not paid their ATE

citation an opportunity to raise the city’s failure to comply with the municipal

infraction process. Section 3-29 prohibited the vehicle owner from raising the

very thing that made their ATE citation invalid. This flaw was compounded by

the notice that the city sent to Maury and Robbins which stated, “You have

exhausted your legal remedies regarding the validity of this debt.”

Finally, I agree that under these circumstances, Maury and Robbins may

be able to pursue a remedy of unjust enrichment. See Kragnes v. City of

Des Moines, 810 N.W.2d 492, 512 (Iowa 2012); Restatement (Third) of Restitution

& Unjust Enrichment § 19(1), at 259 (Am. L. Inst. 2011). I might conclude

otherwise if the section 3-29 administrative remedy were not illusory. In other

words, if Maury and Robbins had a genuine opportunity to contest the offset on

the ground that the ATE citation was not a valid debt, then failure to exhaust

that administrative remedy might bar their claims. See Restatement (Third) of

Restitution & Unjust Enrichment § 19(1), at 259 (“Except to the extent that a

different rule is imposed by statute . . . .”); id. § 19(1) cmt. g, at 267 (“The taxing 36

authority may establish administrative procedures for refund claims, and state

law may require their exhaustion as a precondition of a suit in restitution.”). The

city is required to conduct such hearings “in a manner substantially equivalent

to that provided under Iowa Code chapter 17A,” Iowa Admin. Code r. 11—40.4(6),

and we have held that failure to exhaust an administrative remedy under chapter

17A is fatal to a plaintiff’s claim, Ghost Player, L.L.C. v. State, 860 N.W.2d 323,

326 (Iowa 2015) (“When a party fails to exhaust all of its required administrative

remedies, the court has no authority to hear the case . . . .”). However, “an

administrative remedy should be adequate in order to be deemed exclusive.”

Bass v. J.C. Penney Co., 880 N.W.2d 751, 760 (Iowa 2016).

With these observations, I join the court’s opinion.