Ainley Kennels & Fabrication, Inc. v. City of Dubuque, Iowa

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
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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.