ZABER v. CITY OF DUBUQUE

ew denied, (Ky. 2007).

Having identified the purpose of this act — protection of the public fisc, we now must consider whether this purpose justifies the retroactive aspect of the legislation — ratification of past franchise fees. It is at this juncture that the distinction between tax statutes and curative acts becomes most important. Unlike the revenue-raising tax statutes at issue in Carlton and like cases, which were designed to ensure tax collections remained at the same level or increased in the future, the curative act at issue here was designed to avoid the refund of monies already collected and spent. We agree with the district court that these purposes (maintaining revenue at the same or a higher level and avoiding refunds of past receipts) are fundamentally different. One need only put oneself in the position of the city to appreciate the distinction between the retroactivity of tax statutes versus the retroactivity of curative legislation. It is one thing to learn you will not be getting a raise as large as you anticipated and will have to adjust future expenditures accordingly (similar to allowing tax statutes limited retroactivity resulting in decreased future revenues); it is quite another matter to learn that you will have to return a portion of the income you have already received and spent (similar to the situation of denying retroactive authorization of taxes already collected and spent by the city). Clearly, the latter situation provides a more compelling justification for retroactivity than does the former.

Moreover, the fairness of retroactivity vis-à-vis the taxpayer is fundamentally different in these situations. In the context of retroactive tax legislation, the taxpayer has conducted himself in accordance with the laws in effect at the time of a particular transaction and then subsequently, due to the retroactivity of a new tax statute, is taxed on the past transaction. In contrast, when curative legislation is at issue, the taxpayer has entered into the transaction knowing the transaction is burdened with a particular fee or tax. Ratification of the tax or fee does not change the rules of the game after the taxpayer has placed his bet, as is the case with retroactive tax legislation. See Charles B. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 704, 705-06 (1960) [hereinafter The Constitutionality of Retroactive Legislation] (noting "the interest in the retroactive curing of . . . a defect in the administration of government outweighs the individual's interest in benefiting from the defect"); cf. Miller v. Johnson Controls, Inc., 296 S.W.3d 392, 401 (Ky. 2009) (allowing retroactive "clarification" of tax statute to conform to interpretation made by taxing authority, noting "the clear and lengthy notice, the lack of settled expectations and lack of detrimental reliance"), cert. denied ___, U.S. ___, 130 S.Ct. 3324, 176 L.Ed.2d 1240, 2010 WL 621364 (2010).

The period of retroactivity justified by the purpose and effect of these clearly different statutes has been recognized by courts and scholarly authors alike. In a Kentucky case, the court noted the situation in Carlton was "significantly different" from the facts presented in the Kentucky case in which the taxpayers sought refunds of fees the municipality had already collected. King, 217 S.W.3d at 870 (concluding nineteen-year period of retroactivity did not violate taxpayers' due process rights). In his treatise, Singer also recognizes the singular nature of curative acts when he discusses the constitutionality of such legislation: "[T]he very reason for curative legislation is to fulfill and secure expectations rather than to frustrate and defeat them. The principles governing decisions about the validity of retroactive legislation do not work to render curative acts invalid." Singer on Statutory Construction § 41:12, at 509 (emphasis added). Another author notes, "[c]ases involving the retroactive imposition of taxes must be treated separately" from curative statutes "which ratify prior official conduct of government officers who have acted without the requisite authority." The Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. at 704, 706. Thus, it is inaccurate to suggest curative statutes are subject to the same retroactivity concerns and limitations as tax statutes.

The justification for allowing curative acts to operate retroactively has been explained as follows:

Non-substantive laws that operate retroactively help to rectify or prevent injustices that may have been caused by the previous law. For example, so-called "curative legislation" will be upheld when the legislation: (1) ratifies prior official conduct of government officials who acted without the requisite authority, or (2) retroactively cures defects in an administrative system. Retroactive curative rules are acceptable because of the strong public interest in a fair government system, and because they merely produce the same result that would have occurred had the law-maker (usually an agency) promulgated the original rule correctly.

Jan G. Laitos, Legislative Retroactivity, 52 Wash. U.J. Urb. Contemp. L. 81, 95 (1997) (footnotes omitted); accord Stephen R. Munzer, A Theory of Retroactive Legislation, 61 Tex. L. Rev. 425, 470 (1982) (suggesting retroactivity of curative legislation is justifiable because "[i]t tends to confirm expectations and to protect those who rely on the underlying merits of a claim rather than those who grasp at legal technicalities"); Laura Ricciardi Michael B.W. Sinclair, Retroactive Civil Legislation, 27 U. Tol. L. Rev. 301, 338 (1996) ("Such curative legislation affirms as proper what everyone had taken to be the law anyway: it `restores a situation that was affirmatively anticipated and provided for.'"). Thus, "[w]here legislation is curative, retroactive application may be constitutional despite a long period of retroactivity." Wiggins v. Comm'r of Internal Revenue, 904 F.2d 311, 316 (5th Cir. 1990).

The United States Supreme Court long ago recognized the very distinction we note. In United States v. Heinszen, 206 U.S. 370, 27 S.Ct. 742, 51 L.Ed. 1098 (1907), the Court reversed a judgment refunding duties illegally collected on imports to the Philippine Islands under executive branch authority, relying on curative legislation passed by Congress. In 1898, the President imposed tariff duties on imports to the Philippine Islands. Heinszen, 206 U.S. at 378, 27 S.Ct. at 743, 51 L.Ed. at 1100. In 1899, a treaty of peace was ratified, which had the effect of taking away the President's power to impose these duties; yet the President continued the duties in force. Id. Three years later, in 1902, Congress expressly authorized the imposition of duties. Id. at 378, 27 S.Ct. at 743, 51 L.Ed. at 1100-01. In 1905, the Supreme Court heard two appeals from parties who had been denied refunds of duties paid between 1899 and 1902, before the duties were authorized. Id. at 380-82, 27 S.Ct. at 744-45, 51 L.Ed. at 1101-02. The Court reversed the judgments in favor of the government and held the President was without power to impose the duties after the treaty of peace was ratified in 1899. Id., Thereafter, in 1906, Congress passed an act legalizing and ratifying the collection of the unauthorized duties between 1899 and 1902. Id.

A year later the Heinszen appeal reached the Court. The district court in Heinszen had held duties paid by the claimants between 1899 and 1902 were illegal and had refused to give effect to the 1906 ratification of the unauthorized duties. Id. at 382, 27 S.Ct. at 745, 51 L.Ed. at 1102. The claimants asserted on appeal that application of the ratifying act would deprive them of their property without due process of law, arguing they had a vested right in the monies illegally exacted from them. Id. at 386, 27 S.Ct. at 746, 51 L.Ed. at 1104. The Supreme Court noted the general principle that Congress "had [the] power to ratify the acts which it might have authorized." Id. at 384, 27 S.Ct. at 745, 51 L.Ed. at 1103. Of particular significance to the present case is the Court's refusal to consider the legalizing act as a taxing statute:

As to [the claim] the duties collected were illegal, it is insisted that, for the purpose of testing the validity of the act of Congress, the fact of such collection must be put out of view, and the act ratifying the exaction must be treated as if it were solely an original exercise by Congress of the taxing power. This being done, it is said, reduces the case to the inquiry, had Congress power, years after goods which were entitled to free entry had been brought into the Philippine Islands, to retroactively impose tariff duties upon the consummated act of bringing the goods into that country? But the proposition begs the question for decision, by shutting out from view the potential fact that when the goods were brought into the Philippine Islands there was a tariff in existence under which duties were exacted in the name of the United States. . . . Moreover, the fallacy which the proposition involves becomes yet more obvious when it is observed that the contention cannot even be formulated without misstating the nature of the act of Congress; in other words, without treating that act as retrospective legislation enacting a tariff when, on its very face, the act is but an exercise of the conceded power dependent upon the law of agency to ratify an act done on behalf of the United States, which the United States could have originally authorized.

Id. at 385-86, 27 S.Ct. at 746, 51 L.Ed. at 1103-04. The Court went on to reject the claimants' due process claim, noting any right to a refund held by the claimants "was subject to the exercise by Congress of its undoubted power to ratify." Id. at 386, 27 S.Ct. at 746, 51 L.Ed. at 1104. The Court stated the fact that the instant suit was pending at the time Congress ratified the illegal duties did not "cause the statute to be repugnant to the Constitution," as "[t]he mere commencement of the suit did not change the nature of the right." Id. at 387, 27 S.Ct. at 747, 51 L.Ed. at 1104.

Heinszen was followed by the Court's 1937 decision in Swayne Hoyt, Ltd. v. United States, 300 U.S. 297, 57 S.Ct. 478, 81 L.Ed. 659 (1937). In Swayne Hoyt, steamship corporations challenged an order of the Secretary of Commerce canceling higher rates the corporations had been charging shippers through the Panama Canal. 300 U.S. at 299-300, 57 S.Ct. at 478-79, 81 L.Ed. at 661-62. The corporations claimed, correctly, that the Secretary acted without authority, but the Court found Congress had subsequently validated the Secretary's action through various legislative acts. Id. at 300-01, 57 S.Ct. at 479-80, 81 L.Ed.at 662-63. As in Heinszen, the Court pointed out "a distinction must be taken `between a bare attempt of the Legislature retroactively to create liabilities for transactions . . . fully consummated in the past . . . and the case of a curative statute aptly designed to remedy mistakes and defects in the administration of government where the remedy can be applied without injustice.'" Id. at 302, 57 S.Ct. at 480, 81 L.Ed. at 663 (quoting Graham v. Goodcell, 282 U.S. 409, 429, 51 S.Ct. 186, 194, 75 L.Ed. 415, 440 (1931)). The Court held "the retroactive application of the curative act impaired] no substantial right or equity of [the corporations]" and was not "unreasonable and arbitrary." Id. at 302, 57 S.Ct. at 480, 81 L.Ed. at 663-64.

A review of the Van Emmerik case cited above is also helpful because it relies on Heinszen and has facts strikingly similar to the case before us. See Van Emmerik, 304 N.W.2d at 701-05, 707. In Van Emmerik, the state of South Dakota had collected a four percent sales tax on the sale of utility services beginning in 1969, even though the tax statute applicable to utilities imposed only a three percent tax. Id. at 701-02. In 1979, a class action seeking refunds of the one percent illegal tax was brought against the utilities and the state on behalf of all South Dakota residents who had paid the excessive sales taxes on their utility bills. Id. at 701. Thereafter, in 1981, the South Dakota legislature enacted a law imposing a four percent tax on utilities and making it retroactive to 1969. Id. at 702. The class action petitioner challenged the constitutionality of this legislation, claiming it constituted "a taking of property without just compensation in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments." Id. at 703.

At the time of this decision, the test of reasonableness for purposes of determining whether a taking had occurred was substantially the same as the test for a substantive due process claim. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 541-42, 125 S.Ct. 2074, 2083, 161 L.Ed.2d 876, 889-90 (2005) (discussing evolution of takings analysis, noting its "reliance on due process precedents"). This court has also equated the two tests. In Home Builders, this court considered a claim that an illegal tax in the form of a park dedication fee constituted a Fifth Amendment taking. Home Builders Ass'n, 644 N.W.2d at 351. We concluded it did not because "the fees were `reasonably related to a substantial public purpose.'" Id. (quoting Swisher Int'l, Inc. v. United Slates, 178 F.Supp.2d 1354, 1362 (C.I.T. 2001), aff'd, Arbon Steel Serv. Co. v. United States, 315 F.3d 1332 (Fed. Cir. 2003)). See generally Perm Cent. Transp. Co. v. City of New York, 438 U.S. 104, 127, 98 S.Ct. 2646, 2660, 57 L.Ed.2d 631, 650 (noting "a use restriction on real property may constitute a `taking' if not reasonably necessary to the effectuation of a substantial public purpose"), reh'g denied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198 (1978), modification recognized by Palm Beach Isles Assocs. v. United States, 231 F.3d 1354 (Fed. Cir. 2000). In considering the plaintiff's substantive due process claim, we noted there must merely be "`a "reasonable fit" between governmental purpose . . . and the means chosen to advance that purpose.'" Home Builders Ass'n, 644 N.W.2d at 353 (quoting ACCO Unlimited Corp. v. City of Johnston, 611 N.W.2d 506, 510 (Iowa 2000)). We concluded this test was met, stating, "[w]e have already determined in connection with our takings analysis that the parks fee is reasonably related to die City's goal of establishing neighborhood parks. This conclusion also disposes of the plaintiff's substantive due process claim." Id. at 354. Thus, even though Van Emmerik involved a takings claim, the court applied substantially the same test we must employ in the present case for substantive due process.

In addressing this claim, the South Dakota Supreme Court first noted that the act "purports to ratify the unauthorized collection by state officials of sales tax overcharges and to that extent, the law is a curative act." Id. It rejected the petitioner's argument that the utility customers had a right to a refund, stating:

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. . . . Petitioner (having shared in the benefits funded by the tax) effectively seeks a windfall in claiming that a vested right has arisen here since, had the official action in question had the effect it was intended to and could have had, no such right would have arisen.

Id. at 705; cf. Johnson Controls, 296 S.W.3d at 397 (holding taxpayers had no "vested right in the Kentucky Revenue Code"). The court also held the petitioner's claim that the law "is invalid due to its eleven and one-half year period of retroactivity . . . lack[ed] merit." Van Emmerik, 304 N.W.2d at 706. The court noted the temporal element of retroactivity is relevant to the fairness of applying the legislation retroactively. Id. ("The obvious reason for this concern is rooted in the principle that a person should be able to plan his conduct with reasonable certainty of the legal consequences."). Although this consideration is "[a]n important element" in cases involving "retroactive taxation," the court noted, this principle of fairness was "not threatened here." Id. Accordingly, the court gave full effect to the legislature's ratification of eleven and one-half years of unauthorized taxation. Id. The petitioner's subsequent appeal to the United States Supreme Court was dismissed "for want of a substantial federal question." Van Emmerik v. Janklow, 454 U.S. 1131, 102 S.Ct. 986, 71 L.Ed.2d 285 (1982).

A more recent decision of the United States Court of Appeals for the District of Columbia Circuit is also factually on point. See Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999), cert. denied, 528 U.S. 1115, 120 S.Ct. 934, 145 L.Ed.2d 813 (2000). In this case, the National Science Foundation (NSF), an agency of the federal government, contracted with Network Solutions, Inc., a private corporation, to provide domain registration services for the Internet. Id. at 504. Pursuant to the contract, Network Solutions charged domain name registrants a yearly registration fee, with seventy percent of the fees kept by Network Solutions and the remaining thirty percent deposited in an account on NSF's behalf "for preserving and enhancing the `Intellectual Infrastructure of the Internet.'" Id. at 505. Plaintiffs, registrants who paid the annual registration fees, brought suit, seeking refunds of the so-called preservation assessment. Id. The district court held the preservation assessment "was an above-cost tax Congress had not authorized and hence was unconstitutional." Id. Congress immediately enacted a law that "legalized and ratified" the preservation assessment that had been illegally collected for over two years. Id. The district court then dismissed the plaintiffs' claims as moot. Id. at 506.

On appeal, the court of appeals considered the effect of Congressional ratification of the illegal tax. Id. Quoting Heinszen, it noted "that Congress `has the power to ratify the acts which it might have authorized' in the first place, so long as the ratification `does not interfere with intervening rights.'" Id. (quoting Heinszen, 206 U.S. at 384, 27 S.Ct. at 745-46, 51 L.Ed. at 1103). The court affirmed the district court's denial of the plaintiffs' claim. Id. at 512.

An analogous case involving an act characterized as clarifying prior law is also enlightening. In Robert Morris College v. United States, 11 Cl.Ct. 546, 547 (Cl.Ct. 1987), a taxpayer sought a refund of FICA taxes paid for the years 1979-1983. These taxes were calculated pursuant to a 1965 revenue ruling issued by the Department of Treasury interpreting the governing statute. Robert Morris Coll., 11 Cl.Ct. at 547. The taxpayer claimed the Department's interpretation was inconsistent with a decision of the United States Supreme Court, Rowan Cos. v. United States, 452 U.S. 247, 101 S.Ct. 2288, 68 L.Ed.2d 814 (1981), and therefore, it was entitled to a refund of the erroneously paid taxes. Id. at 547-48. In 1983, Congress, concerned about the impact of Rowan on taxes already collected, passed a law that in effect amended the governing statute to make it consistent with the revenue ruling. Id. at 549, 551. In 1984, Congress made the 1983 statute effective for years prior to 1983 "to preclude the possibility of refunds of FICA taxes paid in conformity with [the revenue ruling]." Id. at 551.

The taxpayer challenged the retroactive application of the new law, claiming it deprived the taxpayer "of its right to recover an overpayment." Id. at 553. The taxpayer also claimed "that since the 1984 Act covers retroactively such a long period of time, it violates due process." Id. The court rejected this claim, stating:

Plaintiff was not deprived of any amounts to which it was entitled, nor did the legislation change its status by requiring plaintiff to pay additional amounts. Instead, Congress in pursuit of rational purposes — protection of the Social Security base and prevention of the potential disruption Rowan could cause — codified a revenue ruling which had been in force during the period in question. Plaintiff complied with [this revenue ruling] throughout, and it should not be considered arbitrary or unfair that it cannot reclaim amounts paid to Social Security which it never expected to be refunded.

Id., at 553-54; accord Canisius Coll. v. United States, 799 F.2d 18, 26-27 (2d Cir. 1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987); Temple Univ. v. United States, 769 F.2d 126, 135 (3d Cir. 1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2914, 91 L.Ed.2d 544 (1986); Johnson Controls, 296 S.W.3d at 401.

A final case that is factually similar, and therefore helpful, is the Kentucky Court of Appeals' King decision previously mentioned. In King, two counties had for many years imposed a "fee" on individual incomes and business net profits without giving those paying the fees a credit for similar city fees paid by the taxpayers. 217 S.W.3d at 865-66. In 2001, taxpayers challenged the county fees, and the Kentucky Supreme Court held in 2004 that the counties should have been giving the tax-payers a credit for city fees the taxpayers had paid. Id. Based on this decision, the taxpayers filed an action on their own behalf and on behalf of all other persons who had paid the county fees seeking refunds of the excessive fees charged by the counties since 1986. Id. In response to the same decision, the legislature enacted a law providing that no taxpayer was entitled to a refund for any overpayment and making the statute retroactive. Id. at 866-67. The district court ruled the statute was not unconstitutional and dismissed the taxpayers' suit for refunds. Id., at 865.

On appeal, the appellate court held the statute precluding refunds of all excessive fees did not violate due process notwithstanding its long period of retroactivity, noting the legislature had enacted this provision "to shield [the counties] from what it believed could be the devastating [financial] consequences of the Supreme Court's decision." Id. at 870 (distinguishing Carlton as dealing with a situation "significantly different"). The court noted, "If there are `settled expectations' in this case, they are the County's, not the taxpayers." Id.; see also Jasinski v. City of Miami 269 F.Supp.2d 1341, 1347 (S.D.Fla. 2003) ("When a legislative body, in good faith, enacts a curative law to ratify, validate and confirm any act that it could have authorized in the first place, . . . it would contravene public policy to award plaintiffs a windfall for asserting a cause of action that the legislative body may constitutionally eliminate by curing any defects in the law."), aff'd, 99 Fed.Appx. 887 (11th Cir. 2004); Johnson Controls, 296 S.W.3d at 401 (upholding retroactive "clarifying" legislation denying taxpayer refunds, noting taxpayers' "lack of settled expectations and lack of detrimental reliance").

The plaintiff claims the cases we have discussed are not good law in light of the United States Supreme Court's decision in McKesson Corp. v. Division of Alcoholic Beverages Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). In McKesson, the Florida Supreme Court had ruled that a Florida "tax scheme unconstitutionally discriminated against interstate commerce," but the court had refused to provide the taxpayer a refund for taxes it had already paid. 496 U.S. at 22, 110 S.Ct. at 2242, 110 L.Ed.2d at 26. On certiorari to the United States Supreme Court, the Court held "the Due Process Clause requires the State to afford taxpayers a meaningful opportunity to secure post payment relief for taxes already paid pursuant to a tax scheme ultimately found unconstitutional." Id. at 22, 110 S.Ct. at 2242, 110 L.Ed.2d at 26-27.

Clearly, McKesson addressed the taxpayer's procedural due process rights; it did not consider the validity of curative legislation under the doctrine of substantive due process. Moreover, the tax at issue in McKesson was one that was inherently unconstitutional or illegal, one that the state had no power to authorize under any circumstances. As we have already noted, the tax at issue here was not one that was inherently unconstitutional; it had simply not been authorized by the legislature at the time it was assessed and paid. McKesson plainly does not stand for the proposition that principles of substantive due process are violated by the enactment of a curative statute that retro-actively ratifies a taxing authority's imposition of an otherwise permissible tax. See Atchison, Topeka Santa Fe Ry. v. United States, 61 Fed.Cl. 501, 508 (Fed.Cl. 2004) (rejecting due process challenge to retroactivity of statute, distinguishing McKesson from cases involving curative legislation); Johnson Controls, 296 S.W.3d at 402-03 (rejecting applicability of McKesson to due process challenge to legislature's retroactive confirmance of state taxing authority's interpretation of tax statute). Therefore, McKesson does not undermine the validity of the cases upon which we rely.

In summary, then, the cases and legal authorities addressing the retro-active application of curative legislation establish: (1) ratification of a tax already imposed and collected cannot be equated with the retroactive imposition of a new tax for purposes of determining the constitutionality of retroactive application of a curative act, (2) curative acts do not impair any vested right of the taxpayer, (3) there is no litmus test for a reasonable period of retroactivity for curative acts, and (4) ratification of a tax collected without authority is given full retroactivity so long as the retroactivity furthers a legitimate purpose.

We note that Iowa law regarding the impairment of vested rights is consistent with the authorities we have discussed. In fact, the precise argument plaintiff makes here — that he has a vested right to a refund — was made and rejected in our early Soper case. 39 Iowa at 117-18. In that case, the plaintiff argued "that before the passage of the curative act, the plaintiff had a right of action to recover back the illegal taxes paid, and that this is a vested right." Id. at 121. We rejected the plaintiff's argument there and have continued to hold in subsequent cases that curative legislation ratifying an invalid exercise of governmental power, including previously imposed taxes, does not interfere with vested rights. Id. at 124; see Schwarzkopf, 341 N.W.2d at 8; Iowa Elec. Light Power Co. v. Inc. Town of Grand Junction, 221 Iowa 441, 452-53, 264 N.W. 84, 90 (1935); Rosen-baum, 212 Iowa at 232-34, 231 N.W. at 648-49; Chicago, R.I. P. Ry. v. Streepy, 211 Iowa 1334, 1338, 236 N.W. 24, 26 (1931); Indep. Dist. of Avoca, 99 Iowa at 561-62, 68 N.W. at 882; Boardman, 18 Iowa at 294-95. The plaintiff places great reliance on our decision in Thorp v. Casey's General Stores, Inc., 446 N.W.2d 457 (Iowa 1989), in which this court held the retroactive application of an amendment to Iowa's dramshop law that eliminated a plaintiff's accrued tort claim deprived her of a vested right in violation of due process. Thorp, 446 N.W.2d at 462. We specifically noted in our decision, however, that a similar conclusion does not prevail when the retroactive legislation is a curative act. Id. Such statutes, we stated, survive constitutional scrutiny even if they deprive a plaintiff of a vested cause of action. Id.

The legislative purpose behind the curative act in this case was clearly to allocate the burdens of government and to avoid financial disruption to the finances of the cities involved. Importantly, this situation in not one in which taxpayers have reasonably relied upon tax law and structured their affairs in a fashion that is prejudiced by the retroactive legislation. The fee payers in this case paid unauthorized franchise fees that were later ratified by the state. If the taxpayers in these municipalities had known that ratification would be forthcoming, they would not have altered their conduct in any material way.

Certainly the legislature could have refused to ratify the acts of the cities, requiring the burden of tax refunds resulting from the unlawfully collected taxes to be borne by current city taxpayers, either in the form of increased taxes or reduced services. Instead, however, the legislature decided to avoid these disruptions by retroactively ratifying the taxes already paid. One may, of course, question the wisdom of these ratifying decisions on the ground that cities should be left to their own devices after pushing the tax envelope too far. The issue of the degree to which municipalities must be held on a short leash through a refusal to ratify unauthorized tax collections is generally a political question for the legislature to decide. In this case, the legislature's determination that the interest in stable municipal finances trumps the need to discipline city management does not amount to an arbitrary or irrational choice under the facts and circumstances.

Notably, no taxpayer has been arbitrarily or irrationally singled out for special treatment. See Commonwealth Edison Co. v. Will County Collector, 196 Ill.2d 27, 255 Ill.Dec. 482, 749 N.E.2d 964, 975 (2001) (upholding legislative act validating taxes predating effective date of legislation, noting the general assembly was not targeting any particular group of taxpayers "for retribution or other illegitimate purpose"); cf. Carlton, 512 U.S. at 32, 114 S.Ct. at 2023, 129 L.Ed.2d at 29 (concluding retroactive amendment to tax statute did not violate due process, in part, because "Congress' purpose in enacting the amendment was neither illegitimate or arbitrary").

IX. Period of Retroactivity.

As a backup argument, the plaintiff contends that, if we hold the legislature had the power to retroactively authorize the illegal taxes imposed by cities on cable television services, the retroactive application of this authorization should be limited to "one year or the adjournment of the previous legislative session, May 3, 2006. He claims courts applying Carlton use a "bright line one year rule as the constitutionally permissible period of retroactivity for state tax legislation." The plaintiffs suggestion that a one-year retroactive period approaches the due process limit is based on dicta in Justice O'Connor's concurring opinion in Carlton. See Carlton, 512 U.S. at 38, 114 S.Ct. at 2026, 129 L.Ed.2d at 33 ("A period of retroactivity longer than the year preceding the legislative session in which the law was enacted would raise, in my view, serious constitutional questions.") (O'Connor, J., concurring).

In our view, however, Justice O'Connor's comments were not meant to amount to a per se rule in all cases of every variety involving taxes. Moreover, a majority of the Supreme Court in Carlton did not embrace a one-year rule, but instead provided a more flexible framework for deciding the due process question. See Montana Rail Link, Inc., 873 F.Supp. at 1421 (rejecting plaintiffs argument that all retroactive legislation must have a "short and limited period" of retroactivity, stating "in Carlton the Court did not establish a specific time frame for the validity of retroactive legislation"); Enter. Leasing Co. of Phoenix v. Ariz. Dep't of Revenue, 221 Ariz. 123, 211 P.3d 1, 5-6 (2008) (rejecting interpretation of Carlton as standing for proposition that "retroactivity in excess of one year . . . creates a due process issue" and holding six-year period of retroactivity did not violate due process), review denied, (Ariz. 2009); Johnson Controls, 296 S.W.3d at 399 (rejecting "a specified modesty period," noting eight of the nine justices in Carlton did not subscribe to a one-year limit on retroactivity); see also Canisius Coll., 799 F.2d at 26-27 (rejecting "a one-year bench mark as the constitutional limit of retroactivity," and holding four-year retroactive application of curative statute was not violative of due process); cf. Licari v.comm'r of Internal Revenue, 946 F.2d 690, 695 (9th Cir. 1991) (rejecting due process challenge to statute retroactively increasing tax penalty, noting a four-year period of retroactivity was not, by itself, sufficient to violate due process), aff'd, 946 F.2d 898 (9th Cir. 1991); Temple Univ., 769 F.2d at 135 (in case involving clarifying legislation applied retroactively to plaintiffs tax returns going back six years, court stated, "no federal court of appeals has yet adopted an absolute temporal limitation on retroactivity," citing case allowing a nine-year period of retroactivity). Moreover, to the extent Carlton stands for the proposition that tax statutes must have a certain period of retroactivity, that proposition is inapplicable here because the legislation authorizing the city's franchise fees is a curative act.

It is, of course, possible under the Iowa due process clause to adopt a different approach from the federal model. Our recent cases emphasize that we jealously protect our right to engage in independent analysis of state constitutional claims, both with respect to the standards to be utilized and the application of those standards to the facts and circumstances of a given case. See, e.g., State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6-7 (Iowa 2004). Here, however, the plaintiff does not propose a whole-sale abandonment of established federal doctrine under the Iowa Constitution, but instead implies that the dicta in Justice O'Connor's concurring opinion in Carlton should provide the basis for a decision in his favor under the Iowa Constitution. This dicta does not present a basis for decision under the Iowa Constitution in light of the nature of the dispute presented here and the lack of detrimental reliance by the taxpayers. While there are Iowa cases that suggest a short period of retroactivity for tax legislation, these cases do not involve ratification of prior acts of municipalities by the state. See, e.g., Shell Oil Co. v. Bair, 417 N.W.2d 425, 431-32 (Iowa 1987); City Nat'l Bank of Clinton v. Iowa State Tax Comm'n, 251 Iowa 603, 608-09, 102 N.W.2d 381, 384 (1960).

Having rejected a rigid limit on the allowable period of retroactivity for curative legislation, we will consider the plaintiffs argument that only a modest period of retroactivity can satisfy due process using the substantive due process principles outlined above. As we have discussed, the purpose of the 2007 act passed by the Iowa legislature was to safeguard the financial stability of municipalities by ensuring they would not be required to refund substantial sums that they had already collected — and spent. Clearly, the validation of past collections was a reasonable fit with this legislative purpose. The plaintiff has not demonstrated why this purpose — to safeguard the public fisc — is advanced by allowing the city to retain the past one or two years of taxes, but not the past five and one-half years of taxes. See The Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. at 704 ("[W]hen dealing with curative statutes, the Court has consistently held that the legislative purpose is of itself sufficient to justify the concomitant retroactivity."); cf. Rocanova v. United States, 955 F.Supp. 27, 30 (S.D.N.Y. 1996) (holding six-year period of retroactivity for lengthened statute of limitations governing government claims for back taxes did not violate due process as "[t]he very purpose of the Amendment required its application to all existing tax liabilities"), ajfd, 109 F.3d 127 (2d Cir.), cert. denied, 522 U.S. 821, 118 S.Ct. 76, 139 L.Ed.2d 35 (1997); Johnson Controls, 296 S.W.3d at 401 (rejecting due process challenge to 2000 statute that gave effect to taxing authority's interpretation of tax statute from 1988 to 1994, an interpretation that was held erroneous by the Kentucky Supreme Court in 1994). See generally Waters, 251 N.W.2d at 548 (stating a curative act "`is necessarily retrospective in character'" (quoting McSurely v. McGrew, 140 Iowa 163, 172, 118 N.W. 415, 419 (1908))). Therefore, the plaintiff has not carried his burden to establish the unconstitutionality of the legislature's action.

X. Summary and Disposition.

We recognize the result in this case makes litigation challenging municipal taxes that have not been authorized by the state less attractive as recovery of potential refunds may be cut off by the legislature. Yet, any municipality that imposes unauthorized taxes runs the risk of fiscal disruption in the event the legislature declines to ratify its actions. If the legislature wishes to provide taxpayers with a mandatory recovery when unauthorized taxes are levied by local governments, it may do so through appropriate legislation. As even the Carlton Court stated with respect to the retroactive imposition of a new tax:

We note the fees determined to constitute illegal taxes in Kragnes were imposed on gas and utility services. The legislation at issue here does not ratify such fees, and in fact, the plaintiff in this case has a pending claim for refund of gas and utility fees.

"Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by a rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches. . . ."

Carlton, 512 U.S. at 30-31, 114 S.Ct. at 2022, 129 L.Ed.2d at 28 (quoting Pension Benefit Guar. Corp., 467 U.S. at 729, 104 S.Ct. at 2718, 81 L.Ed.2d at 611); accord Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 19, 96 S.Ct. 2882, 2894, 49 L.Ed.2d 752, 768-69 (1976) (noting wisdom of retroactive application of statute imposing liability on coal mine operators for disabilities of former employees was "not a question of constitutional dimension," and holding retroactivity was not a due process violation). This court made a similar observation in State v. Miner, 331 N.W.2d 683 (Iowa 1983), in considering a substantive due process challenge to economic regulation: "Our function is not that of a super-legislature which weighs the wisdom of legislation; we look only to whether the means chosen by the State are rational and reasonably necessary to the accomplishment of the State's purpose." 331 N.W.2d at 689 (citation omitted). For the present, our legislature has reserved to itself the power to determine whether to ratify unauthorized local taxes on a case-by-case basis. We must defer to a constitutional exercise of that judgment.

In summary, the legislature's ratification of the city's unauthorized tax is a curative statute whose purpose — to safeguard the public fisc and the financial stability of local municipalities — is rationally related to its retroactivity. Therefore, this statute does not violate the plaintiffs substantive due process rights. We affirm the district court's summary judgment for the city on the plaintiffs claim for a refund of fees paid on cable television services. We remand this case for further proceedings on the plaintiffs claim for a refund of gas and utility fees.

AFFIRMED AND CASE REMANDED.

All justices concur except WIGGINS and HECHT, JJ who dissent.