author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Thomas Leonard CAMPBELL, Appellant.
    No. 04-0396.
    Supreme Court of Iowa.
    May 19, 2006.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Joel Dalrymple, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Thomas Leonard Campbell, convicted of four counts of burglary as an habitual offender, appeals, challenging an alleged denial of his right to a speedy trial and the district court’s limitation of his cross-examination of a State’s witness. The court of appeals affirmed defendant’s conviction. , After reviewing the record and considering the arguments presented, we find that defendant’s right to a speedy-trial was not violated. We do conclude, however, that the district court committed reversible error by improperly restricting his cross-examination of a State’s witness. We vacate the decision of the court of appeals. The district court’s judgment on the burglary charges is reversed and the case remanded to the district court for a new trial on those charges.

On June 14, 2003, a neighbor of Hope Voshel, defendant’s girlfriend, heard glass breaking in the vicinity of Voshel’s residence. She had recently observed defendant arriving at the residence. The neighbor approached Voshel’s home and observed that a window had been broken. At about this time, she witnessed defendant driving away from the residence. She then telephoned Voshel, who was at her brother’s house. The neighbor informed Voshel of the broken window and defendant’s apparent involvement in the matter.

Voshel returned home to inspect the broken window. She then went to the police station to report what had happened and defendant’s involvement in the incident. While she was at the police station, she received a cell phone call from defendant in which he admitted that he had broken the window. Voshel told the police of defendant’s conduct with regard to her broken window and also informed them that defendant had been involved in four recent burglaries in Waterloo involving a jewelry store, a clothing store, a hair salon, and an antique gallery. She told police that defendant had shown her a television set he had stolen from the hair salon.

After speaking with Voshel, the police became aware that defendant was at the home of Tangala Saffold., They went to that residence and placed defendant under arrest. Saffold informed them that defendant and Voshel occasionally stayed at her home, and when this occurred, they occupied one particular room. At the time of defendant’s arrest, police officers seized a coat identified as belonging to defendant. In the pockets, they discovered a mask and a pair of gloves. Additionally, acting with the consent of Saffold, the police searched the room in which defendant and Voshel sometimes stayed and seized a fur coat, a bag of shoes, several antique books, and an antique radio, all of which were later identified as items taken in recent burglaries. Later the same day, Voshel delivered to the police several items of jewelry, which she claimed defendant had taken in a burglary at Newton’s Jewelry Store in Waterloo. In a trial information filed on June 27, 2003, defendant was charged with four counts of burglary involving the jewelry store, clothing store, hair salon, and antique gallery. He was also charged with malicious mischief in the third degree as a result of allegedly breaking a window at Voshel’s home. He entered a plea of not guilty on all counts and demanded a speedy trial.

The speedy-trial deadline was September 25, 2003. Trial of all charges was initially scheduled for September 2. At the request of defendant’s counsel, it was rescheduled for September 9. On September 5 counsel for defendant advised the court that time was required to hear certain undisclosed legal issues to be raised by him. Although those issues were ultimately never asserted, the trial.date was delayed to September 16 in anticipation that they would. On September 8 the State filed a notice of additional minutes of testimony, listing several new witnesses against defendant. On September 10 defendant requested in writing that the court remove his court-appointed counsel, David Fiester. On September 12 defendant filed a pro se motion to suppress evidence of the items seized at Tangala Saffold’s residence. On September 13 attorney Fiester noted that he had a conflict of interest with a jailhouse informant listed as a witness against defendant in the additional minutes of testimony that had recently been filed. He requested permission to withdraw for this reason.

A hearing was held on September 15, 2003. With regard to the matter of defendant’s request for the removal of his court-appointed counsel, the presiding judge asked defendant whether he wanted to be represented by attorney Fiester. Defendant replied that he did not. In response to that answer, the judge told him, “Okay. Now you understand, I’m not saying what I’m going to do, but if you get a new lawyer your trial is going to be continued for probably three, four weeks. You can’t have a new lawyer come in and be ready to go to trial in a week.” Defendant responded by asking how long it would take to receive a ruling on his motion to suppress because he claimed that he was prepared to defend himself. The following colloquy then took place:

THE COURT: Well, I mean, the only problem with that, sir, is you filed a motion to suppress. We can’t have a motion to suppress before the trial tomorrow. That’s just humanly impossible. And representing yourself, I have yet to see anybody who has done that effectively. Even people who have a college education and extensive education past that and understanding of the Rules of Criminal Procedure and the laws.
What I’m willing to do is grant your request to have a new attorney appointed to represent you because of the conflict that exists between — or the predicament that Mr. Fiester [defendant’s court-appointed attorney] is in. So I’m willing to appoint a new attorney to represent you, but that’s going to necessitate continuing your trial. If you want to represent yourself your trial is going to have -to be continued too because there would have to be a hearing on your motion to suppress because that can’t be held today. It can’t be held before your trial tomorrow.
THE DEFENDANT: Okay. Well, why is it being assessed to me when he’s the one' that — the prosecuting, attorney filed a trial information on September 8th when he had this information on June 14th?
THE COURT: The trial information can be filed and amended any time up to and including the date of the trial.
And the alternative is to either allow the amended minutes or to grant a continuance. If the amended minutes are granted, if that’s allowed, then the remedy for a defendant is to have the trial continued, but you’d be requesting the trial be continued plus there’s a problem with your attorney who would run into an ethical problem because you don’t want him to represent you since he represents a guy that’s gonna testify against you. And presumably the guy who’s going to testify against you probably doesn’t want him to represent him because he represents you as well. So like I said, you know, I’ll get you a new lawyer, but—
THE DEFENDANT: So if I drop my request for a motion of — to suppress and I state that I want to go to trial tomorrow and represent myself can I do that?
THE COURT: Well, you may be able to, but I think it wouldn’t be wise....
THE DEFENDANT: I’ll take my chances. I’m prepared to come to trial tomorrow....
THE COURT: I’ll let you represent yourself, but it won’t be tomorrow. I’ll appoint a standby attorney to be present in case you have questions that have to go through that lawyer. And I’ll reset your trial. I’ll give you until the end of the week to rethink representing yourself because the standby counsel won’t represent you. They’ll only be there if there’s a problem. Otherwise—
THE DEFENDANT: I’m fine with that.
THE COURT: Otherwise it would be up to you to represent yourself, to ask the potential jurors the questions that they need to be asked, to determine which of the people will serve on the jury, to make objections to questions in an appropriate form, to determine what the jury instructions should say, whether you have any objections to those, all those decisions would have to be made on your own. Standby counsel wouldn’t have anything to do with that.
THE DEFENDANT: All right.
THE COURT: So what I’ll do is indicate that Mr. Fiester is allowed to withdraw; I’ll appoint a standby attorney; I’ll reset your trial; I’ll indicate that you’re going to represent yourself and you have until the end of the week, which would be the 19th, to reconsider that because I think to be — I don’t know anything about you, sir, but I think it would be a silly, foolish decision to attempt to represent yourself on a case that you could face 62 years in prison on. There’s a mandatory minimum three on each of the habituáis. If all those are run consecutive you may have a mandatory minimum of 12 years in prison before you’d be eligible for parole. And that’s my own opinion and you don’t have to listen to that. I’ll do an order in conformity with what we’ve talked about. Do you want to have a hearing on your motion to suppress before your trial is scheduled in a couple of weeks?
THE DEFENDANT: Yes.
THE COURT: Okay.
THE DEFENDANT: Wait a minute. If my trial is going to be scheduled in a couple of weeks what’s the purpose of me going pro se?
THE COURT: That’s kind of what I’m trying to tell you, sir. We can’t have a standby attorney for you tomorrow morning. That just can’t be done. And so your trial is going to have to be reset.
THE DEFENDANT: So if I drop my motion to suppress then I can go to trial tomorrow?
THE COURT: No, sir. You have to have a standby attorney to help you in this case. There won’t be an attorney available tomorrow.
THE DEFENDANT: So I’m going to have to end up having to wait for an attorney anyway?
THE COURT: Well, what I’m trying to tell you is you ought to have an attorney, but if you insist on representing yourself I’ll appoint somebody as a standby attorney.
THE DEFENDANT: My goal was to go to trial tomorrow.
THE COURT: Well, you’re not going to go to trial tomorrow.
THE DEFENDANT: Well, then I withdraw my request to be my own lawyer because I might as well wait for a lawyer.
THE COURT: All right. So I’ll appoint another attorney to represent you....

On the day following the September 15 hearing, the district court allowed attorney Fiester to withdraw as defendant’s counsel and appointed attorney Tammy Banning to represent defendant. In this order, the trial was rescheduled for October 7. Attorney Banning met with defendant at the jail on September 23 and, after introducing herself, was told by defendant that he did not wish her to represent him. She filed a motion to withdraw, and defendant appeared in court in support of that motion on October 3. Attorney Banning’s motion to withdraw was granted on the ground of irreconcilable differences with her client, and Brandon Adams was appointed to represent defendant. In the order approving this change of counsel, defendant’s trial was rescheduled for November 4. The trial actually commenced on November 5, 2003, due to the illness of defendant’s new counsel.

At the trial Hope Voshel testified for the State and indicated that defendant had admitted to her that he had committed the burglaries with which he was charged. During her cross-examination, defendant’s counsel attempted to question her concerning an accusation that defendant had made implicating Voshél’s nephew, Justin, as the perpetrator of the burglaries and defendant’s threat to turn Justin in to the police. That confrontation supposedly took place on the night before the events surrounding Voshel’s broken window and her trip to the police station to accuse defendant of the burglaries. The trial court sustained the State’s objection to this testimony and refused to allow defendant’s counsel to pursue it in front of the jury. Additional facts will be discussed in our consideration of the legal issues presented.

I. The Speedy-Trial Issue.

A. Scope of remew. We review a trial court’s ruling on a motion to dismiss based on speedy-trial grounds for an abuse of discretion. State v. Nelson, 600 N.W.2d 598, 601 (Iowa 1999); State v. Todd, 468 N.W.2d 462, 470 (Iowa 1991). However, that discretion is a narrow one, as it relates to circumstances that provide good cause for delay of the trial. State v. Winters, 690 N.W.2d 903, 907-08 (Iowa 2005).

B. Speedy trial provisions of Iowa Rule of Criminal Procedure 2.33(2)(b). After defendant’s trial was continued beyond the original ninety-day speedy-trial deadline of September 25, his counsel filed a motion to dismiss the prosecution based on a denial of speedy trial. Defendant later filed a pro se motion asserting the same request. On the opening day of trial, immediately prior to the jury selection, the district court denied those motions in a ruling that was dictated into the record. The substance of the ruling was that the delay in trial was attributable to the defendant. Defendant urges on appeal that this ruling was in error. In particular he asserts that the delay caused by the withdrawal of attorney Fiester was not attributable to defendant but, rather, was attributable to the State’s late filing of additional minutes of testimony that produced a conflict for Fiester.

Iowa Rule of Criminal Procedure 2.33(2)(5) provides:

If a defendant indicted for a public offense has not waived the defendant’s right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.

In applying this rule, we have recognized that, if trial does not commence within ninety days of the filing of the charging instrument, the charge must be dismissed “unless the State proves (1) defendant’s waiver of speedy trial, (2) delay attributable to the defendant, or (3) ‘good cause’ for the delay.” Nelson, 600 N.W.2d at 600; accord Winters, 690 N.W.2d at 908. In determining whether there is good cause for a delay, we focus only on one factor, the reason for the delay. Nelson, 600 N.W.2d at 601. The attending circumstances bear on that inquiry only to the extent they relate to the sufficiency of the reason itself. Id.

In holding that the State showed sufficient reason for the delay in the present case, the court of appeals stated:

Defendant’s August 28 request for a continuance from the original trial date of September 2 caused seven days of delay, as the trial was rescheduled to September 9. This delay must be attributed to defendant. Defendant’s September 5 request for further proceedings caused seven more days of delay, as trial had to be rescheduled to September 16, even though defendant later withdrew the request for further proceedings. This delay must also be attributed to defendant. These two delays, which are attributable to defendant, caused fourteen days of delay.
Defendant may not cause delay and later take advantage of that delay. Thus, we extend defendant’s original speedy trial deadline of September 25 by fourteen days; the result being defendant’s speedy trial deadline was actually October 9.
Trial would have occurred on October 7, which was within the recalculated speedy trial period. However, defendant and his attorney had “irreconcilable differences,” which resulted in defendant’s attorney seeking to withdraw and defendant agreeing that the attorney should withdraw. Thus, the delay from the October 7 trial date to November 4 must also be attributed to defendant. ... Therefore, we conclude that with certain delays properly attributed to defendant and good cause, defendant’s trial occurred within the speedy trial period.

The court of appeals did not consider it necessary to determine whether the delay caused by attorney Fiester’s withdrawal was attributable to the defendant or to the State.

We are not persuaded that the court of appeals employed the proper rationale in reaching its conclusion on the speedy-trial issue. In considering whether a delay of trial beyond the ninety-day period provided in Iowa Rule of Criminal Procedure 2.33(2)(6) warrants dismissal of the prosecution, we do not deem it appropriate to identify a certain number of days related to events that are believed to have impeded the progress of the case, attribute those events to the defendant or to other good cause, and then extend the speedy-trial deadline by a like number of days. Evaluation of the delay may not be made in such a mechanical fashion because it is not accurate to assume that pretrial events consuming a measurable amount of time will force a delay in the trial of a like amount of time. The decisive inquiry in these matters should be whether events that impeded the progress of the case and were attributable to the defendant or to some other good cause for delay served as a matter of practical necessity to move the trial date beyond the initial ninety-day period required by the rule. In making that inquiry in the present case, we conclude that this question must be answered in the affirmative.

Defendant may not attribute the period of delay caused by the withdrawal of attorney Fiester to the State’s addition of a new witness to the minutes of testimony that worked a conflict for Fiester because defendant had actively sought Fiester’s removal as his counsel for other reasons prior to the time that the alleged conflict of interest had surfaced. It is impossible to conclude from the present record that there would not have been a change of counsel irrespective of the alleged conflict of interest. The delay required for Fiester’s replacement to become familiar with the case was the precipitating cause of moving the trial date beyond the original ninety-day speedy-trial period. Thereafter, defendant’s own conduct was a substantial factor in the withdrawal of his new lawyer, necessitating yet another change in counsel and an additional period of time for new counsel to achieve familiarity with the case. The time allowed in each instance for counsel to gain familiarity with the case was well within the discretion of the trial court. In considering the totality of the events that occurred, the delay in bringing defendant to trial was for reasons that preclude a finding that his speedy-trial rights were violated.

II. Exclusion of Evidence Relating to Witness Bias.

Hope Voshel testified on behalf of the State. She indicated that, on the night defendant broke out the windows in her apartment, she had stayed at her brother’s home because she and defendant had argued. In questioning her as to this matter on cross-examination, the following occurred:

Q. Now, that argument that you had with Mr. Campbell, was your nephew’s name, Justin, brought up? A. Yes, sir.
Q. Now your nephew Justin, is he in a training school up in Eldora?

At this point, the State objected as follows:

PROSECUTING ATTORNEY: Your Honor, I’m going to object. I believe it’s essentially 404(6) evidence that is not relevant to this case.

The colloquy then took place outside of the jury, and defendant made the following offer of proof:

DEFENDANT’S COUNSEL: Your Honor, the substantive facts that I believe that we will get from Ms. Voshel herself is that the argument that was had between Mr. Campbell and Ms. Voshel was concerning this nephew in particular by the name of Justin in conjunction with other nephews accusing him of doing something because they were, in fact, confronted by Mr. Campbell himself as that they shouldn’t be doing it, meaning the burglaries themselves, and so that’s the information that we expect to get from Ms. Voshel, that she will testify that Mr. Campbell, in fact, indicated that these nephews shouldn’t be doing this and that they believed that they were, that he was going to turn them in, and, in fact, reported this to Ms. Voshel. That’s what I believe at least the substantive facts are that I believe will come out.

The district court sustained the State’s objection, stating its ruling as follows:

Nevertheless, if the only evidence that these other individuals may be responsible for these crimes is the defendant’s statement of such to this — to Ms. Vosh-el, then I do believe that it’s nothing more than mere suspicion and there are no substantive facts, and so I agree with the state in its analysis.... I further agree with the state that this — that this is hearsay as it stands and for both those reasons, I will not allow the defendant to get into that ....

In seeking to uphold the district court’s ruling on appeal, the State relies on two propositions. First, it urges that Iowa Rule of Evidence 5.404(6) applies so as to exclude the proffered evidence of other bad acts and, second, that evidence offered by a defendant tending to incriminate another must be confined to substantive facts and create more than a mere suspicion that another person committed the offense. Defendant argues that neither of these theories justifies the denial of cross-examination of Voshel designed to show her bias as a result of defendant’s intention to turn her nephew or nephews in for the same burglaries with which he was charged. We agree.

Defendant is correct in contending that rule 5.404(6) has no application to the present evidentiary problem. Perhaps some of the blame for the State’s reliance on that rule is attributable to unnecessary language contained in State v. Roth, 403 N.W.2d 762 (Iowa 1987). In Roth we held that a second-degree murder conviction could not be used to impeach a witness under a rule of criminal procedure that, at the time, limited impeachment based on prior convictions to only those offenses showing dishonesty or false statements. In making that determination, an unnecessary reference was made to Iowa Rule of Evidence 404(b) (now 5.404(6)), and with respect thereto, we stated:

Although the principle codified in Iowa Rule of Evidence 404(b) has surfaced frequently with respect to the conduct of accused persons in criminal trials, this rule is equally applicable to witnesses generally.

Roth, 403 N.W.2d at 765. This was clearly a misstatement of the applicability of rule 5.404(6). It is not a rule pertaining to witnesses, but, rather, a rule pertaining to evidence of past conduct in order to prove subsequent conduct. Moreover, it only relates to proof of the conduct that is at issue in the case. See United States v. Morano, 697 F.2d 923, 926 (11th Cir.1983) (evidence of extraneous bad acts of those not on trial do not implicate the policy of Federal Rule of Evidence 404(b)); United States v. Krezdorn, 639 F.2d 1327, 1332-33 (5th Cir.1981) (same).

The second proposition on which the State relies is misapplied. As the State notes, we have previously determined that evidence offered by a defendant tending to incriminate another must be confined to substantive facts and create more than a mere suspicion that such other person committed the offense. State v. Wilson, 406 N.W.2d 442, 447 (Iowa 1987); State v. Harrington, 349 N.W.2d 758, 761 (Iowa 1984). We are satisfied, however, that this was not the primary purpose sought to be accomplished through the cross-examination of Voshel. The evident purpose of the attempted cross-examination was to show bias in the sense that the witness was motivated to protect her nephews from defendant’s accusations and intentions to inform the police. As stated by a leading evidence text:

Case law recognizes the slanting effect on human testimony of the witness’s emotions or feelings toward the parties or the witness’s self-interest in the outcome of the case. Partiality, or any acts, relationships, or motives reasonably likely to produce it, may be proved to impeach credibility.... In criminal cases the defendant has a qualified constitutional right to show the bias of government witnesses.

1 John W. Strong, McCormick on Evidence § 39, at 144-45 (5th ed. 1999) (citing Davis v. Alaska, 415 U.S. 308, 316-18, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347, 354-55 (1974)) (footnotes omitted). In State v. Rowe, 238 Iowa 237, 26 N.W.2d 422 (1947), this court reversed a criminal conviction in which the trial court limited cross-examination of a state’s witness on matters aimed at affecting the credibility of a witness. Rowe, 238 Iowa at 242, 26 N.W.2d at 425. In so doing, we stated:

We hold that cross-examination along the line of that offered should have been permitted as bearing on the interest and activities of witness, Conaway, and we think that the court erred in so ruling. It is a well-established rule of law that in a criminal case the ill-will or hostility of a witness testifying against one charged with the commission of a crime may be shown and that it is proper to do so by cross-examination. Such evidence may be considered by the jury in testing the credibility of such witness.

Id.

Applying these principles to the issue now before us, we are convinced that the district court erred in limiting the cross-examination of Hope Voshel on the subject of defendant’s accusation of her nephews. If the facts were as suggested in defendant’s offer of proof, they would provide a plausible motive for Voshel to attribute guilt for the burglaries to defendant in order to protect her nephews. This would not be any less the case because the defendant was the source of her knowledge of the nephews’ involvement and defendant’s intention to turn them in.

Voshel was a critical witness for the State, testifying to admissions by the defendant concerning the burglaries and identifying some of the stolen property as having been under defendant’s control. Her credibility was certainly not beyond reproach. She provided an entirely unsatisfactory explanation of the source of the jewelry that she produced for the police and attributed to a burglary by defendant. We are convinced that the trial court’s restriction of the cross-examination of Voshel produced a sufficiently high potential for prejudice that defendant should be afforded a new trial.

III. Ineffective Assistance of Counsel.

Because the issue might again arise in further proceedings in the case, we consider defendant’s contention that his trial counsel was ineffective in failing to seek suppression of the evidence obtained in the search conducted at Tangala Saffold’s residence. We are satisfied that the record on direct appeal is sufficient to resolve that legal issue at this stage.

Defendant, as a frequent overnight guest at Saffold’s home, enjoyed an expectation of privacy in the room where he kept some personal belongings. That expectation of privacy, however, is applicable only to the unwarranted actions of government actors. It does not ensure the guest’s possessions will not be disturbed by the host and those persons for whom the host allows entry. Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85, 94 (1990); United States v. Oates, 173 F.3d 651, 656 (8th Cir.1999); United States v. Wright, 971 F.2d 176, 180 (8th Cir.1992). A motion to suppress the evidence obtained at Saffold’s residence would have been unavailing. Consequently, counsel’s failure to file such a motion did not constitute ineffective assistance.

We have considered all issues presented and conclude that the judgments of conviction on the four burglaries must be reversed. Consequently, the decision of the court of appeals is vacated. Because the State has prevailed on the only issues affecting the conviction for criminal mischief in the third degree, that conviction is affirmed. The case is remanded to the district court for further proceedings not inconsistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

      . Defendant was also convicted of the offense of criminal mischief in the third degree. We will dispose of that conviction summarily at the conclusion of our decision.

      . Her testimony in that regard was as follows:
      Q. Where did you get this jewelry from?
      A. From the back of a building.
      Q. In the back of what? A. A building.
      Q. How did you know this jewelry was there? A. It been put there.

      Q. Who put it there, do you know? A. No.
      Q. How did you know that that jewelry was there? A. I been told.
      Q. Who told you it was there? Ms. Voshel, who told you that the jewelry was there? A. A guy.
      Q. Who? A, A guy.
      Q. Who is it? A. I don't know sir.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    Lisa KRAGNES, Appellee, v. CITY OF DES MOINES, Iowa, Appellant.
    No. 06-0026.
    Supreme Court of Iowa.
    May 26, 2006.

      Mark Godwin, Deputy City Attorney, Des Moines, for appellant.
    Bradley P. Schroeder of Hartung & Schroeder, Des Moines, for appellee.
    Terrence L. Timmons, Des Moines, for amicus curiae Iowa League of Cities.
    Ivan T. Webber and James R. Wainwright of Ahlers <& Cooney, P.C., Des Moines, for amici curiae Cities of Sioux City, Dubuque, Early, Oskaloosa, Manchester, Algona, and West Des Moines.
    John V. Donnelly of Sullivan & Ward, P.C., West Des Moines, for amicus curiae Iowa Association of Electric Cooperatives.
   WIGGINS, Justice.

A citizen of the city of Des Moines brought an action against the city alleging the franchise fees the city assessed in its franchise agreements for gas and electric power services are illegal taxes. Both parties moved for summary judgment on this issue. The district court found the franchise fees were illegal taxes and enjoined the city from collecting the fees. Although we continue to adhere to our view that any franchise fee charged by a city must be reasonably related to the city’s administrative expenses in the exercise of its police power in order not to constitute an illegal tax, we find there is a genuine issue of material fact as to whether all or part of the franchise fees in this case are so related. Accordingly, we reverse the district court’s ruling and remand the case for further proceedings.

I. Background Facts and Proceedings.

In 1960, the City of Des Moines (City) entered into an electric franchise agreement with Iowa Power and Light Company, a predecessor in interest to MidAmeri-can Energy Company (MidAmerican). The ordinance contained “an annual franchise, occupation or privilege tax” of one percent of the gross receipts derived from the company’s distribution and sale of electric energy to customers within the corporate limits of the City. That same year, the City entered into a similar agreement with Iowa Power and Light Company concerning the distribution and sale of natural gas. This ordinance contained “an annual franchise, occupation or privilege tax” of two percent of the gross receipts derived from the company’s distribution and sale of natural gas to customers within the corporate limits of the City.

After the expiration of the 1960 franchise agreements, the agreements were updated by ordinances. Iowa Power and Light Company retained the electric franchise for a fee equal to one percent of the gross receipts derived from the company’s sale of electric energy to customers within the corporate limits of the City. Midwest Gas Company held the gas franchise for a fee equal to one percent of the gross receipts derived from the company’s sale of natural gas to customers within the corporate limits of the City.

On May 6, 2004, the governor signed a bill phasing out the sales and use taxes on the sale and furnishing of gas and electricity for residential use. 2004 Iowa Acts ch. 1133, § 1 (codified at Iowa Code § 423.3(84) (2005)). The legislation reduced the sales tax from five percent to two percent on residential users of gas and electricity billed on or after January 1, 2004, through December 31, 2004. Iowa Code § 423.3(84)(6 )(1). The legislation further reduced the sales tax to one percent on residential users of gas and electricity billed on or after January 1, 2005, through December 31, 2005. Id. § 423.3(84)(6 )(2). Finally, the legislation eliminated the sales tax on residential users of gas and electricity billed on or after January 1, 2006. Id. § 423.3(84)(6 )@).

At the time the governor signed the bill phasing out these sales and use taxes, the City was experiencing problems in delivering services to its residents because of diminishing funding from the state. The City was considering increasing its property taxes to hire more police and firefighters, fix deteriorating neighborhoods and streets, and maintain the library’s hours. When the City realized the state was phasing out the sales and use taxes on residential gas and electric service, it recognized that if it replaced the sales and use taxes with a higher franchise fee, the actual cost of electricity and gas to the residential customers would not change. In deciding whether it should raise property taxes or increase the franchise fees, the city manager’s office distributed a summary proposal giving an overview of franchise fees. The overview provided:

• A city may amend its electric light and power and/or gasworks franchise to provide for collection of a franchise fee under the Iowa Code. (Iowa Code § 364.2)
• The city council may grant, amend, extend or renew an electric light and power, heating or gasworks franchise without an election, subject only to the possibility of a reverse referendum petition. (Iowa Code § 364.2(4)(6)). However, a public hearing must be held.
• There is no statutory limit on the level of franchise fee to be collected, although as with any user fee it should bear a relationship to the cost to the city of the utility’s occupancy of public areas in the city.
• Currently, all Iowa cities collecting franchise fees do so based on gross receipts. This would not have to be the basis of a franchise fee — in other words, the Code does not prohibit the collection of fees based on the “units sold” (e.g. therms or kwhs).
• A city must have a valid franchise ordinance in place that authorizes the collection of the fee.
• Franchise fees can only be collected from customers for facilities located within the corporate limits of the city imposing the fee.
• City facilities are exempted from collection of franchise fees. (Iowa Code § 364.2(4)(f))
• A city can exempt certain customer groups from collection of franchise fees. Algona collects franchise fees only on the distribution charges of gas transportation customers, not on the gas supply costs of transportation customers. Any exemption would have to be made on a nondiscriminatory basis.
• If a city imposes a local option sales tax, the enactment of an ordinance which imposes a franchise fee will eliminate the ability of the city to lawfully impose a local option sales tax on the sale or use of natural gas, natural gas service, electricity or electric service. (Iowa Code §§ 422B.8, 422E.3(2))
• 28E agreements have been used to transfer funds collected via franchise fees between governmental bodies. Rock Valley will be using a 28E agreement to transfer funds to the local school district to replace school funding that had been collected through a local option tax.
• A city which collects franchise fees can not also collect a fee for the use of its right of ways. (Iowa Code §§ 480A.8, 480A.6)
• MidAmerican Energy Company’s role is to collect the fees established by the city ordinance and remit them to the city.

After determining an increase in the franchise fee was preferable to a property tax increase, the City proceeded to negotiate updated franchise agreements for gas and electric service with MidAmerican, which at the time held the franchise agreements with the City to provide it with gas and electric services. The updated agreements extended the gas and electric franchises for an additional ten years. The agreements also increased the franchise fee to three percent for gas and three percent for electricity effective September 2004. The agreements also permitted the city council to further increase the franchise fees to an amount not greater than six percent on a majority vote of the city council after giving the public fourteen days advance notice.

The City placed the ordinances amending the gas and electric franchises on the city council agenda for June 7, 2004. Prior to the council meeting, the city manager prepared a council communication regarding the franchise ordinances. The communication contained the following statements:

At present, the City is facing a number of critical issues: the need for more police and firefighters required to meet homeland security responsibilities; deteriorating neighborhoods and streets; and reduced library hours. The need for higher property taxes is on the horizon to fulfill these basic service needs. Furthermore, the State is poised to eliminate more aid to local governments (i.e., Homestead and Veterans credits) which will further limit the City’s capacity to maintain services.
Over, the last several years, resources and staff have been stretched to cope with the challenges of providing quality services while funding has diminished. However, a franchise fee increase offers the best alternative funding opportunity to assure adequate and essential services are provided to the citizens of Des Moines. The net effects are minimal to residents because the fee structure adjusts to the historical rate once paid in 2001....
If the franchise fee were not available it would require a property tax rate increase to cover the costs for the same level of services needed....
I recommend committing [the franchise fees] to basic services of the city, which includes additional police officers (12) and firefighters (24), street reconstruction in neighborhoods, and reinstated library hours.

In lieu of increasing the property tax, the City passed the ordinances amending the franchise agreements, raising the franchise fee to three percent on gas and three percent on electricity. The Iowa utilities board approved the amended franchise agreements.

In September 2004, the City began receiving the increased fees. The City deposited the revenue generated by the franchise fees in its general fund. The 2004 increase in the franchise fees allowed the City to enact one of the largest property tax cuts in its history. In January 2005, the city manager reported to the mayor and the council that the increased franchise fees were generating enough revenue to restore the library hours, hire twenty-four additional firefighters, hire twelve additional police officers, provide low-income assistance to persons to have their utility services reconnected, make four economic development grants, make a grant to the Des Moines school system, fund improvement of the City’s roads, and place $750,000 in the City’s reserves.

In March 2005, the city council revisited the franchise ordinances. A majority of the city council passed a resolution increasing the franchise fee from three percent to five percent on gas and from three percent to five percent on electricity. This increase was effective June 1, 2005.

In the meantime, Lisa Kragnes filed a petition in equity on behalf of herself and all others similarly situated challenging the City’s charging of the franchise fees expressed as a percentage of billings imposed on gas and electric utilities provided by MidAmerican. Kragnes, a resident of Des Moines, has been a customer of Mi-dAmerican for her gas and electric utilities since 1994. In her petition, she claimed the franchise fees, charged and collected by the City through its franchise agreements with MidAmerican, are illegal taxes. Kragnes sought a declaratory judgment and/or order of mandamus ordering the City to reimburse her and other class members for all franchise fees paid dating back to the time allowed by the applicable statute of limitations until the end of the litigation. She also requested an injunction prohibiting the City from enforcing and/or collecting such franchise fees in the future.

The City answered Kragnes’s petition denying various paragraphs of the petition. The City also asserted several affirmative defenses including the court’s lack of jurisdiction to hear the case, Kragnes’s failure to state a claim for which relief could be granted, Kragnes’s lack of standing, claim preclusion based on the doctrine of laches, and Kragnes’s failure to join indispensable parties to the ease.

Kragnes filed her first motion for partial summary judgment asserting the Iowa utilities board did not have exclusive jurisdiction, she did not fail to exhaust her administrative remedies, and the present suit was not a collateral attack on a final agency action. The City did not resist the motion. The district court granted Kragnes partial summary judgment on these issues, finding it had subject matter jurisdiction of the case and Kragnes stated a claim upon which relief could be granted.

The City filed a motion for summary judgment claiming there was no genuine issue of material fact in dispute that the franchise fees on gas and electric service it was collecting were “not illegal sales taxes.” On the same day, Kragnes filed her second motion for partial summary judgment claiming there was no genuine issue of material fact in dispute that 'the franchise fees on gas and electric service collected by the City were “outside the scope of its legal authority to tax.”

The district court denied the City’s motion for summary judgment and granted Kragnes’s second motion for partial summary judgment. In its ruling, the district court found no genuine issue of material fact existed and declared the franchise fees to be illegal taxes. The court enjoined the City from collecting or assessing the franchise fees under the ordinances. The City filed a motion for stay without supersedeas bond. The court denied the motion but limited the injunction to the collection and assessment of the franchise fees to only Kragnes.

The City filed a notice of appeal, which we treated as an application for interlocutory appeal. We granted the City’s application. The district court issued an order staying any further proceedings, including the issue of class certification, pending this appeal.

II. Issue.

The issue presented is whether the district court erred when it held no genuine issue of material fact existed and determined the franchise fees were illegal taxes.

III. Scope of Review.

Actions tried in equity are ordinarily reviewed de novo. State ex rel. Miller v. Cutty’s Des Moines Camping Club, Inc., 694 N.W.2d 518, 524 (Iowa 2005). However, because the district court resolved this case on motions for summary judgment, our review is for the correction of errors at law. Id. We have said:

“If there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. We can resolve a matter on summary judgment if the record reveals a conflict only concerns the legal consequences of undisputed facts.”

City of Cedar Rapids v. James Props., Inc., 701 N.W.2d 678, 675 (Iowa 2005) (citation omitted). In determining whether summary judgment is proper, we examine the record in the light most favorable to the nonmoving party and we draw all legitimate inferences the evidence bears in order to establish the existence of questions of fact. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005).

IV.Applicable Legal Principles.

The City entered into the amended franchise agreements with MidAmerican pursuant to the authority granted it by the Iowa Code. Iowa Code § 364.2(4)(a) (2003). The Code provides:

A city may grant to any person a franchise to erect, maintain, and operate plants and systems for electric light and power, heating, telegraph, cable television, district telegraph and alarm, motor bus, trolley bus, street railway or other public transit, waterworks, or gasworks, within the city for a term of not more than twenty-five years. When considering whether to grant, amend, extend, or renew a franchise, a city shall hold a public hearing on the question. Notice of the time and place of the hearing shall be published as provided in section 362.3. The franchise may be granted, amended, extended, or renewed only by an ordinance, but no exclusive franchise shall be granted, amended, extended, or renewed.

Id.

The genesis of section 364.2(4)(a) dates back to at least 1873. See Iowa Code § 473 (1873) (providing a city has the power to grant a private entity a franchise to furnish water to the city). In construing an ordinance granting a franchise, this court said a “franchise” is

a privilege granted by the state, or by some minor municipality acting under the authority of the state, to conduct a business of public utility, — such, for instance, as supplying the public with water, light, transportation, and other conveniences.

Cedar Rapids Water Co. v. City of Cedar Rapids, 118 Iowa 234, 239, 91 N.W. 1081, 1083 (1902). This court also recognized that a franchise agreement is a contract between the city and the entity providing services to the city, subject to the same rules of interpretation as between other contracting parties. Id. at 240, 91 N.W. at 1083.

In 1912 the City passed an ordinance attempting to recover the sum of $1 for each telegraph or telephone pole and $1 for each mile of line from a telephone company operating within the City. City of Des Moines v. Iowa Tel. Co., 181 Iowa 1282, 1284, 162 N.W. 323, 324 (1917). The City brought an action against the telephone company for collection of those fees. Id. To support its claim that the City could not charge rent for its use of the streets and alleys, the telephone company relied on a statute that stated:

“Any person or company may construct a telegraph or telephone line along the public highways of this state, or across the rivers or over any lands belonging to the state or to any private individual, and may erect the necessary fixtures therefor; provided, that when any highway along which said line has been constructed shall be changed, said person or company shall, upon ninety days’ notice in writing, remove said line to said highway as established.... Such fixtures must not be so constructed as to incommode the public in the use of any highway or the navigation of any stream; nor shall they be set up on the private grounds of any individual without paying him a just equivalent for the damages he thereby sustains.”

Id. at 1284-85, 162 N.W. at 324 (citations omitted). This statute remains virtually unchanged today. See Iowa Code §§ 477.1-477.3 (2005).

The City contended it owned the streets, alleys, and public grounds as any other private owner and it had the right to charge the reasonable value for the use of its property. City of Des Moines, 181 Iowa at 1287, 162 N.W. at 325. In rejecting this claim, our court made it clear that the City holds the fee title in trust for the public. Id. at 1289, 162 N.W. at 325. The court went on to state:

“But it is a mistake to suppose that, where the fee of the streets is in the city, in trust for the public, the city is constitutionally and necessarily entitled to compensation, the same as a private proprietor holding the fee. The legislature might provide for such compensation, but is not bound to do so.”

Id. at 1291, 162 N.W. at 326 (citation omitted). The court held the City was not “entitled to recover from the telephone company the rental value of its streets used by said company with its poles and wires.” Id. at 1311, 162 N.W. at 331.

In 1931 this court had occasion to revisit the franchise statutes in a dispute between the town of Pocahontas, its residents, and Northwestern Bell Telephone Company. Schnieders v. Inc. Town of Pocahontas, 213 Iowa 807, 808, 234 N.W. 207, 208 (1931). In discussing the nature of a franchise agreement, this court recognized the purpose of a public service franchise was not to create a revenue stream for a city but to provide its citizens with services the city chooses not to provide. See id. at 811-12, 234 N.W. at 209 (stating “ ‘[t]he primary object is not to give revenue or to secure revenue from these service corporations’ ” (citation omitted)).

In 1932 this court discussed the fees a city may receive in consideration for granting a franchise. City of Pella v. Fowler, 215 Iowa 90, 97, 244 N.W. 734, 738 (1932). There the city’s franchise agreement with a grantee of a telephone franchise required the grantee to pay the city five percent of the gross receipts for the use of the city’s streets and alleys. Id. at 92-93, 244 N.W. at 735-36. In addition to reaffirming that the legislature did not confer any authority upon the city to demand rent or compensation for the use of its streets and alleys, this court held a city can only collect a fee in connection with a franchise agreement if the amount of the fee is limited to the reasonable costs of regulating, supervising, or enforcing the franchise. Id. at 98-99, 244 N.W. at 738. The court further held the record failed to show that the fee charged by the city was anything more than an arbitrary amount and dismissed the city’s action to collect the fee. Id., 244 N.W. at 738-39.

In 1968 the Iowa Constitution was amended to give municipalities home rule power and authority. Iowa Const, art. Ill, § 38A. This amendment provided:

Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly.
The rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state.

Id. After the enactment of the home-rule amendment, the Code provided “cities and towns shall not have power to levy any tax, assessment, excise, fee, charge or other exaction except as expressly authorized by statute.” Iowa Code § 368.2 (1971). In 1972, the legislature passed a bill entitled “Home Rule for Cities.” 1972 Iowa Acts ch. 1088. This bill repealed section 368.2 effective July 1, 1974. Id. §§ 9, 199. In its place, the legislature only restricted a city from “levypng] a tax unless specifically authorized by a state law.” Id. § 12 (now codified at Iowa Code § 364.3(4) (2005)). The bill also enacted the 1975 version of section 364.2(4)(a). Id. § 11.

In the instant case, the City argues by dropping the reference to fees and the other exactions, the legislature authorized a city to impose fees, including franchise fees. We agree with the City that the implementation of home rule and the Home Rule for Cities bill does authorize the City to charge a franchise fee. See Nelson v. Rests. of Iowa, Inc., 338 N.W.2d 881, 884 (Iowa 1983) (stating “[w]hen an amendment to a statute deletes certain words, a change in the law is presumed unless the remaining language amounts to the same thing”). This conclusion, however, does not answer the issue involved in this appeal — that is, on what basis may a city assess a franchise fee to a private utility?

Since the home-rule amendment and the home-rule bill became effective, the Code has remained silent as to the basis on which a city may assess a franchise fee to a private utility. See Iowa Code § 364.2(4) (2003). The Code still prohibits a city from levying a tax unless specifically authorized by law. Id. § 364.3(4). Our court has defined a tax as “ ‘a charge to pay the cost of government without regard to special benefits conferred,’ ” meaning its primary purpose is to raise revenue. Home Builders Ass’n of Greater Des Moines v. City of West Des Moines, 644 N.W.2d 339, 346 (Iowa 2002) (citations omitted).

Unless there is clear evidence to the contrary, we assume that when the legislature enacts a law, it is aware of the existing state of the law and our prior interpretations of similar statutory provisions. State v. Freeman, 705 N.W.2d 286, 291 (Iowa 2005). At the time the legislature passed the Home Rule for Cities bill, our cases were clear that a city could only collect a fee in connection with a franchise agreement if the amount of the fee is limited to the reasonable costs of regulating, supervising, or enforcing the franchise. City of Pella, 215 Iowa at 98-99, 244 N.W. at 738.

Subsequent to the adoption of the home-rule amendment and the enactment of the Home Rule for Cities bill, we have had several occasions to discuss fees imposed by a city under its home-rule authority. In City of Des Moines v. Iowa State Commerce Commission, we were asked to decide: (1) whether a ruling by the commerce commission that franchise fees collected by the City should be paid only by the Des Moines customers of a utility abridged the contractual rights of the City under its franchise agreement with the utility; and (2) whether there was substantial evidence to support the commerce commission’s ruling that it would be reasonable for the City to collect such fees only from the Des Moines customers. 285 N.W.2d 12, 13-14 (Iowa 1979). There we determined the City’s contract rights were not abridged and substantial evidence supported the commerce commission’s decision. Id. at 16.

The City contends this decision stands for the proposition that a city may collect a franchise fee based on a percentage of revenues derived from the utility customers because the franchise fees in question there were based on two percent of the gas revenues and one percent of the electric revenues derived from the customers. See id. at 13. We disagree. Even though the franchise agreements at issue there expressed the franchise fees in terms of a percentage of revenues, the issue before the court was not whether home-rule powers authorized the amount of the fee charged, but rather which customers were responsible for paying it. See id.

In 1999 we discussed the home-rule authority of a city to impose a user fee on a telephone company. City of Hawarden v. US West Comm’ns, Inc., 590 N.W.2d 504, 506 (Iowa 1999). There the city terminated its franchise with the public utility because it established a municipal utility to furnish telephone and other communication services to its residents. Id. After terminating its franchise with the utility, the city passed an ordinance imposing a user fee of three percent of the gross revenues of non-municipal utilities operating within the city. Id. In declaring the city was without authority to impose a revenue-generating fee, we first noted any fees exacted in excess of the expenses incurred for the inspection, regulation, and supervision of the utility’s use of public grounds are revenue-raising measures arising from a taxing power and not from a police power. Id. at 507, 509. In doing so, we reaffirmed the notion that a city is not entitled to recover the rental value of its streets used by a utility in connection with delivering services. Id. at 507. We also employed the reasoning of a case from the seventh circuit finding a city could not avoid limitations on its taxing power by calling a tax a franchise fee. Id. at 509. In applying this reasoning, we recognized the functional test adopted by the seventh circuit. Id. The test stated:

“If the fee is a reasonable estimate of the cost imposed by the person required to pay the fee, then it is a user fee and within the municipality’s regulatory power. If it is calculated not just to recover a cost imposed on the municipality or its residents but to generate revenues that the municipality can use to offset unrelated costs or confer unrelated benefits, it is a tax, whatever its nominal designation.”

Id. (citation omitted).

In 2002 we considered whether a city’s mandatory park dedication fee was authorized under home rule. Home Builders Ass’n of Greater Des Moines, 644 N.W.2d at 345. There we reaffirmed the principle that a city cannot impose a tax without express statutory authorization. Id. at 345-46. In applying this principle under a city’s home-rule authority, we stated:

[A] city may charge a fee to cover its administrative expenses in exercising its police power. Thus, the reasonable cost of inspecting, licensing, supervising, or otherwise regulating an activity may be imposed on those engaging in the activity in the form of a license fee, permit fee, or franchise fee.
The rather narrow range of fees permitted by our cases is consistent with our long-standing definition of a tax. As noted above, a tax is “a charge to pay the cost of government tuithout regard to special benefits conferred.” Consistent with this definition, the regulatory and service fees permitted under Iowa law are based on a special benefit conferred on the person paying the fee. In the regulatory context, fees enable the government to administer a particular activity or occupation to the peculiar benefit of those engaged in that activity or occupation. Therefore, fees designed to cover the administrative expense of regulating a particular activity, occupation, or transaction are not taxes.

Id. at 347-48 (citation omitted).

Our decisions reveal that even after the adoption of the home-rule amendment and the enactment of the Home Rule for Cities bill, we have continued to adhere to the position that a fee imposed by a city needs to be related to the reasonable costs of inspecting, licensing, supervising, or otherwise regulating the activity in order to be permitted under a city’s home-rule authority. If a fee charged by a city exceeds the amount necessary to inspect, license, supervise, or otherwise regulate the activity, it is nothing more than a tax levy, which the legislature has strictly prohibited. Iowa Code § 364.3(4).

Here, the City asks us to retreat from this position and find a fee exceeding the costs of inspecting, licensing, supervising, or otherwise regulating the activity is not a tax. In support of its argument, the City cites cases from other jurisdictions that it claims recognize a utility franchise fee constitutes valuable consideration in return for the grant of the franchise and the right of the utility to use the right-of-way. These cases are based on constitutional, statutory, or case law authority that allows for such a charge. See, e.g., Qwest Corp. v. City of Santa Fe, 224 F.Supp.2d 1305, 1319-22 (D.N.M.2002) (looking to New Mexico statutes, constitutional provisions, and case law to determiné the city has the authority to contract for fair and reasonable compensation as consideration for the utility’s use of the public rights-of-way); Bruce v. City of Colorado Springs, 131 P.3d 1187, 1192 (Colo.Ct.App.2005) (citing statutes and case law to hold a franchise fee charged by a municipality is not a tax, but rather rent paid by the utility for the use of the public rights-of-way); Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298, 306-07 (1990) (finding the Idaho Constitution and the Idaho Code expressly allow a city to charge a franchise fee to the utility as valid consideration for the city surrendering its right to operate its own utility); Kowalski v. City of Livonia, 267 Mich.App. 517, 705 N.W.2d 161, 162 (2005) (determining a franchise fee was not a tax based on case law providing that in order for a charge to qualify as a fee and not a tax, it must have a regulatory purpose rather than a revenue-raising purpose, it must be proportionate to the necessary costs of the services, and it is generally voluntary). Thus, we find these authorities distinguishable or unconvincing.

Before and after the adoption of home-rule authority, our case law has consistently held a license fee, permit fee, or franchise fee is not a tax so long as it is related to the reasonable costs of inspecting, licensing, supervising, or otherwise regulating the activity that is being licensed, permitted, or franchised. We see no reason to retreat from this position. The legislature was well aware of our holdings in this area when it passed enactments concerning home-rule authority. If the legislature thought it would be good public policy to allow a city to raise revenue by charging a franchise fee in excess of the reasonable costs of inspecting, licensing, supervising, or otherwise regulating the activity, the legislature could have done so.

Consequently, any franchise fee charged by a city must be reasonably related to the city’s administrative expenses in the exercise of its police power. These expenses include the reasonable costs of inspecting, licensing, supervising, or otherwise regulating the activity the city is franchising. This holding, however, does not require the city to calculate its administrative expenses to a mathematical certainty. See Bloom v. City of Fort Collins, 784 P.2d 304, 308 (Colo.1989) (holding special fees are not required to be determined to a mathematical exactitude as long as the ordinance creating the fee is “reasonably designed to defray the cost of the particular service rendered by the municipality”).

There is a broad presumption that an ordinance is valid when the legislature vests the power in a city council to regulate, license, and control. Star Transp. Co. v. Mason City, 195 Iowa 930, 953, 192 N.W. 873, 882 (1923). In determining whether an ordinance creates a valid fee or an illegal tax, we have stated:

“Where the grant [of power] is not made for revenue, but for regulation merely, a much narrower construction is to be applied” than where it confers the power also of raising revenue. But even where it is for regulation merely, “a fee for the license may still be exacted, but it must be such a fee only as will legitimately assist in the regulation; and it should not exceed the necessary or probable expense of issuing the license and of inspecting and regulating the business which it covers. ... But the limitation of the license fee to the necessary expenses will still leave a considerable field for the exercise of discretion when the amount of the fee is to be determined.... In fixing upon the fee, it is proper and reasonable to take into account, not the expense merely of direct regulation, but all the incidental consequences that may be likely to subject the public to cost in consequence of the business licensed. In some cases, the incidental consequences are much the most important, and, indeed, are what are principally had in view when the fee is decided upon.... And all reasonable intendments must favor the fairness and justness of a fee thus fixed; it will not be held excessive unless it is manifestly something more than a fee or regulation.”

Id. at 955-56, 192 N.W. at 883 (alterations in original) (citation omitted).

Under these principles, a city has the authority to assess a franchise fee expressed as a percentage of the gross receipts derived from the utility’s sale of its services to the public, so long as the charge is reasonably related to the reasonable costs of inspecting, licensing, supervising, or otherwise regulating the activity that is being franchised.

V. Application of Law to Facts.

In order for Kragnes to prevail on her motion for partial summary judgment, the record must show “there is no genuine issue as to any material fact and that [she] is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). Our review of the record indicates á genuine issue of material fact exists as to whether all or part of the franchise fees are reasonably related to the City’s administrative expenses. The summary proposal distributed by the city manager’s office stated “[t]here is no statutory limit on the level of franchise fee to be collected, although as with any user fee it should bear a relationship to the cost to the city of the utility’s occupancy of public areas in the city.”

Examining the record in the light most favorable to the City and drawing all legitimate inferences from the record, there is no question the grant of the franchises to the utility causes the City to incur some ongoing administrative expenses in the exercise of its police power. These expenses would include the reasonable costs of inspecting, supervising, and otherwise regulating the gas and electric utility franchises. Just because the record is replete with references that the City used some portion of the franchise fees for purposes other than administrative expenses, this fact does not mean that the City is not using other streams of revenue to cover the administrative expenses it incurs as a result of granting MidAmerican the gas and electric utility franchises. Therefore, at this stage of the proceedings, the district court should not have declared the entire franchise fees assessed by the City to MidAmerican customers for the gas and electric services to be illegal taxes. Accordingly, we must reverse the district court’s order granting Kragnes’s second motion for partial summary judgment.

YI. Disposition and Directions.

Because under this record a genuine issue of material fact exists as to whether all or part of the franchise fees charged by the City on gas and electric services are reasonably related to the City’s administrative expenses in exercising its police power, we reverse the decision of the district court and remand the case to determine the class certification question and for a trial on the merits. At trial, the district court shall determine what, if any, part of the franchise fees are related to the City’s administrative expenses in exercising its police power, including the costs associated with any incidental consequences of the franchised services. If after trial the district court determines that none of the franchise fees are reasonably related to the City’s administrative expenses, the court shall issue the appropriate order disallowing the franchise fees as contained in the ordinances. However, if the district court determines that all or part of the franchise fees are reasonably related to the City’s administrative expenses, the court shall enforce the ordinances up to an amount equal to the fees reasonably related to the City’s administrative expenses in exercising its police power. Cf. State ex rel. Turner v. Younker Bros., Inc., 210 N.W.2d 550, 565 (Iowa 1973) (holding a department store was not allowed to collect finance charges on its retail installment contracts and revolving charge accounts that were in excess of the interest rate allowed by statute; however, the store was allowed to assess finance charges in the amount allowed by statute); Ehlers v. Iowa Warehouse Co., 188 N.W.2d 368, 373 (Iowa 1971) (holding an employer may partially enforce a noncompete agreement to the extent it is reasonable under the circumstances).

REVERSED AND CASE REMANDED WITH DIRECTIONS.

      . In the 1888 Code, the legislature added gas works and electric light plants to the list of public services for which a city could grant a franchise to a private entity. McClain's Code Ann. §§ 639, 641, 644 (1888). In 1897, electric power plants were added to the list. Iowa Code § 720 (1897). By 1907, the legislature authorized cities to grant franchises "for interurban or street railways, gas or water-works, electric light or power plants, heating plants, telegraph or telephone systems, or other public service utilities.” 1907 Iowa Acts ch. 48, § 12.


author: CADY, Justice.

text:
    In re the Marriage of Bonnie M. PALS and James J. Pals Upon the Petition of Bonnie M. Pals, Appellee, And Concerning James J. Pals, Appellant.
    No. 05-0507.
    Supreme Court of Iowa.
    May 26, 2006.

      Gary L. Berkland of Houser & Berk-land, Belmond, for appellant.
    Christopher C. Foy of Leslie, Collins & Foy, Waverly, for appellee.
   CADY, Justice.

In this appeal from a decision by the district court on a petition for modification of a decree for dissolution of marriage, the noncustodial parent primarily challenges the denial of his request to terminate his child-support obligation and to establish a postsecondary education subsidy for his adult son. The district court and the court of appeals both found he failed to show a substantial change in circumstances justifying modification. We granted further review. We vacate the decision of the court of appeals, affirm the decision of the district court in part, reverse in part, and remand for further proceedings.

I. Background Facts and Proceedings

Bonnie and James Pals were married on August 14, 1982. They had two children. Nicole was born June 19, 1979 and was adopted by James during the marriage. Joel was born August 30,1985.

Bonnie and James were divorced on April 1, 1991. The parties stipulated that Bonnie would have primary physical care of the children, and James would have reasonable visitation with them. The court ordered James to pay child support for both children pursuant to the child support guidelines in the amount of $679 per month. Support was to continue in that amount until Nicole turned eighteen or finished high school, whichever occurred later; or married, died, or became self-supporting. Additionally, the decree contained a separate provision that provided:

In the event that the first child of the parties shall continue with any post-secondary education, the required level of support shall continue at the rate of $679 per month until such time as the first child of the parties either completes the post-secondary education or attains the age of 22, whichever shall first occur, pursuant to section 598.1(2), The Code.

Once the obligation to support Nicole terminated, the monthly support obligation for Joel was reduced to $495. The decree contained the same terms for termination of Joel’s support as for Nicole, and also included the same provision to extend the support obligation in the event Joel pursued a postsecondary education.

Nicole turned eighteen in 1997 and began college. Pursuant to the decree, James continued to pay $679 in child support. Nicole married in October 2000, an event under the decree that terminated James’s obligation to provide support for her and reduced his support obligation to Joel to $495 a month. Notwithstanding, James continued to pay $679 in child support each month until May 2004, when he filed a petition to modify the decree.

Joel graduated from high school in 2004, and began college at Northern Iowa Area Community College in the fall of that year. He moved from Bonnie’s house into a rental house he shared with three roommates. During Joel’s first year of college, James paid the cost of tuition and books not covered by scholarships and grants— $1,118.50.

In the modification proceeding, James alleged the following changes since the time of the decree constituted a substantial change in circumstances justifying modification: (1) he retired as a teacher and began receiving retirement benefits on June 1, 2004; (2) the legislature enacted Iowa Code section 598.21(5A), providing for postsecondary education subsidies, in 1997; (3) the parties never submitted a qualified domestic relations order (QDRO) to the court for approval to implement the original decree’s division of James’s IP-ERS benefits; and (4) his income decreased, while Bonnie’s income increased. James asked the court to modify the decree to enter a QDRO dividing his IPERS benefits according to the provisions of the original decree, terminate his child-support obligation, and order a postsecondary education subsidy for Joel. James also sought attorney fees.

The district court entered its judgment on March 1, 2005. The court concluded James failed to establish a substantial change in circumstances to justify the termination of his child-support obligation or the imposition of a postsecondary education subsidy. However, the court found James overpaid $7912 in child support under the original decree by continuing to pay $679 per month after Nicole’s marriage in October 2000. Accordingly, the court offset his child-support arrearage that had accumulated when he stopped paying support after he filed the modification petition in May 2004, and gave James “a net credit of $8457 yet to be applied to the ongoing post-secondary support obligation owed to Bonnie.” Additionally, the court entered a QDRO implementing the original decree’s division of James’s IP-ERS benefits and ordered each party to be responsible for his or her own attorney fees and one half of the court costs.

James appealed, and Bonnie cross-appealed. James claimed the district court erred in failing to replace the child-support obligation under the decree with an educational subsidy, effective August 2004. He also asked that he be reimbursed for any child-support payments made during the pendency of the appeal not paid over to Joel. Bonnie claimed the district court erred in granting James a credit for the support overpayment. She further claimed the QDRO entered by the district court did not accurately reflect the IPERS division in the original decree. We transferred the case to the court of appeals. The court of appeals reversed the portion of the district court judgment that gave James a credit for the overpaid support, but otherwise affirmed the district court decision. James applied for further review, which we granted.

II. Standard of Review

“A proceeding to modify or implement a marriage dissolution decree subsequent to its entry is triable in equity and reviewed de novo on appeal.” In re Marriage of Mullen-Funderburk, 696 N.W.2d 607, 609 (Iowa 2005) (citations omitted).

III. Modification of Support for College-Aged Child

Dissolution decrees may be modified upon a substantial change in circumstances. Iowa Code § 598.21(8) (2003). To constitute a “substantial change in circumstances,” the changed conditions “ ‘must be material and substantial, not trivial, more or less permanent or continuous, not temporary, and must be such as were not within the knowledge or contemplation of the court when the decree was entered.’” In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996) (quoting Mears v. Mears, 213 N.W.2d 511, 515 (Iowa 1973)). This is the longstanding general approach to the modification of provisions in a decree of dissolution of marriage, and it utilizes a fact-intensive analysis. See, e.g., In re Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995) (“A party who seeks a modification of a dissolution decree must establish by a preponderance of the evidence that there has been a substantial change in circumstances since the entry of the decree or its last modification.” (citing In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992); In re Marriage of Bergfeld, 465 N.W.2d 865, 870 (Iowa 1991))); Brandy v. Brandy, 241 Iowa 1050, 1053, 44 N.W.2d 379, 381 (1950) (“The changing of a decree is only justified where it is shown that there has been a substantial change of circumstances and is done to adapt the decree to changed conditions of the parties.” (citing Metzger v. Metzger, 224 Iowa 546, 278 N.W. 187 (1938); Barish v. Barish, 190 Iowa 493, 180 N.W. 724 (1920); Hart v. Hart, 239 Iowa 142, 30 N.W.2d 748 (1948); Smith v. Smith, 239 Iowa 896, 32 N.W.2d 662 (1948))). However, the legislature has at times altered this approach by describing specific circumstances that permit modification. See, e.g., Iowa Code § 598.21(8A) (“If a parent awarded joint legal custody and physical care or sole legal custody is relocating the residence of the minor child to a location which is one hundred fifty miles or more from the residence of the minor child at the time that custody was awarded, the court may consider the relocation a substantial change in circumstances.”); id. § 598.21(9) (“[A] substantial change of circumstances exists when the court order for child support varies by ten percent or more from the amount which would be due pursuant to the most current child support guidelines established pursuant to subsection 4 or the obligor has access to a health benefit plan, the current order for support does not contain provisions for medical support, and the dependents are not covered by a health benefit plan provided by the obligee _”). Thus, it is necessary to consider any statutes that may provide authority for a court to modify a dissolution decree when a party seeks modification, including modification of child-support provisions for a college-aged child.

Prior to July 1, 1997, Iowa did not have a specific statute to determine each parent’s contributions to their children’s- college education. Instead, our legislature defined child “support” under section 598.1(6) to generally include support of a child between the ages of eighteen and twenty-two who was a fulltime college student. Id. § 598.21(6) (1995). This definition permitted the court to impose a child-support obligation on the noncustodial parent in the event the child pursued a post-secondary education as a fulltime student.

In 1997, the legislature amended section 598.1(6) to remove the postsecondary-sup-port clause from the definition of support, redefined support to terminate at age nineteen, and enacted a separate statute to provide for a postsecondary education subsidy by both parents. 1997 Iowa Acts ch. 175, §§ 185,190; accord In re Marriage of Mullen-Funderburk, 696 N.W.2d at 609 (discussing the amendments).

We considered the operation of the amended statute and subsidy provision in In re Marriage of Sojka, 611 N.W.2d 503 (Iowa 2000). In Sojka, a parent sought to use the postsecondary-education-subsidy statute to modify a pre-1997 decree that provided for continued monthly support for a college-aged child, as well as payment of a portion of the tuition, room and board, and other college expenses. Sojka, 611 N.W.2d at 504. We held the postsec-ondary-education-subsidy statute did not apply retroactively to permit modification of college-support provisions of a dissolution decree entered prior to the effective date of the statute. Id. at 505. However, in 2002, our legislature enacted section 598.21(5A)(e) to specifically authorize courts to retroactively apply the postsec-ondary-edueation-subsidy statute to modify prior decrees that imposed a support obligation for college expenses. See 2002 Iowa Acts ch. 1018, § 17 (adding subpara-graph (e), which provides, “A support order, decree, or judgment entered or pending before July 1, 1997, that provides for support of a child for college, university, or community college expenses, may be modified in accordance with [section 598.21(5A) ].” In recently commenting on the effect of this amendment, we stated, “any decree providing for support of a child in college entered before July 1,1997, is subject to modification.” In re Marriage of Goodman, 690 N.W.2d 279, 283 (Iowa 2004) (citing Iowa Code § 598.21(5A)(e) (2003)).

In this case, the district court and the court of appeals rejected all of the grounds James raised to support a modification of the child-support provisions of the original decree, including the ground that the enactment of the postsecondary-education-subsidy statute and the subsequent declaration by the legislature that the statute applies to decrees entered prior to July 1, 1997, supported modification. Interpreting our recent holding in In re Marriage of Rosenfeld, 668 N.W.2d 840 (Iowa 2003), Bonnie claimed the postsecondary-edu-cation-subsidy statute did not apply to allow modification in this case because the original decree established the support obligation for Joel’s college expenses. The district court and the court of appeals agreed with this interpretation.

In Rosenfeld, we determined that the postsecondary-education statute applied to a modification action brought after July 1, 1997 to establish support for a college-aged child when the original pre-1997 decree did not establish any level of college-aged educational support. See Rosenfeld, 668 N.W.2d at 847 (“Iowa Code section 598.21(5A) is nevertheless applicable because the court did not fix college expenses prior to the enactment of [section] 598.21(5A).” (Citation and footnote omitted.)). Bonnie, however, interpreted Ro-senfeld to mean that the flipside of our holding was also, true — that the postsec-ondary-education-subsidy statute would not apply if the pre-1997 decree did set college-aged support. In accordance with this reasoning, Bonnie argued that James cannot use the postsecondary-education-subsidy statute to change the support provisions under the original decree in this case to reflect the provisions of the postsecondary-education-subsidy statute because the original decree in this case, unlike the decree in Rosenfeld, set the support obligation for James while Joel was in college.

We think Bonnie’s argument misreads Rosenfeld, and fails to properly apply the postsecondary-education-subsidy statute to permit modification of the child-support provisions of the decree in this case. In In re Marriage of MullenFunderburk, we explained that the postsecondary-edu-cation-subsidy statute applied in Rosenfeld because the original pre-1997 decree did not establish any level of college-aged educational support, and the issue was being decided for the first time after the enactment of the statute. In re Marriage of Mullen-Funderburk, 696 N.W.2d at 610-11 (citing In re Marriage of Rosenfeld, 668 N.W.2d at 848). In other words, sub-paragraph (e), providing for the retroactive application of the statute, was not implicated in Rosenfeld because the absence of a provision for college-aged support in the original decree made the action an original adjudication. Id. at 611. Thus, the postsecondary-education-subsidy statute applied to establish a subsidy. See id. (explaining that original adjudications of college-aged support “should be based on both the facts and the law in existence when the determination is made”' — i.e., section 598.21(5A), and do not require a substantial change in circumstances). However, the existence of a provision for college-aged educational support in an original decree does not mean by implication that the subsidy statute does not apply. This implication ignores the clear legislative intent to permit modification of prior decrees based on the subsequent change in the law. See Iowa Code § 598.21(5A)(e) (“A support order, decree, or judgment entered or pending before July 1, 1997, that provides for support of a child for college, university, or community college expenses may be modified in accordance with this subsection.”). The result is that the postsecondary-education-subsidy statute, section 598.21(5A), applies whether or not the original decree provided for college-aged support. If it did, subsection (5A) applies by virtue of subpara-graph (e). If it did not, subsection (5A) applies because college-aged support is an original adjudication.

We recognize the language of the statute provides that the postsecondary education subsidy applies retroactively to modify decrees entered prior to July 1, 1997 that provided for support of a child for college “expenses.” Id. Thus, the subsidy statute can only be used to modify child-support provisions in decrees for college expenses. The original decree in this case did not specifically designate that the continued support after high school was for college “expenses.” However, we think the support provision was nevertheless the type of provision the legislature wanted to be covered under the retroactivity provision, subparagraph (e). Provisions in a divorce decree that extend a child-support obligation while the child is in college necessarily consider expenses associated with attending college. See id. § 598.21(4)(a) (stating that child support is for the “reasonable and necessary” expenses of a child). This approach is also consistent with our pronouncement in In re Marriage of Goodman that the retroac-tivity provision applies to pre-July 1, 1997 decrees “providing for support of a child in college.” See In re Marriage of Goodman, 690 N.W.2d at 288.

We therefore reverse the judgment of the district court insofar as it denied modification of child support by refusing to apply the postsecondary-education-subsidy statute, and remand the case to the district court to eliminate James’s child-support obligation and to determine whether there is good cause to establish a postseeondary education subsidy for Joel under the law and the facts now in existence. See Iowa Code § 598.21F(1) (Supp.2005) (“The court may order a postsecondary education subsidy if good cause is shown.”); see also In re Marriage of Mullen-Funderburk, 696 N.W.2d at 611 (stating that determinations of postsecondary education subsidies “should be based on both the facts and the law in existence when the determination is made”).

We recognize that the application of the postsecondary-education subsidy statute necessarily results in a termination of the prior support obligation. The legislature intended the standard under section 598.21(5A) and the new definition of “support” under section 598.1(9) to apply retroactively to pre-July 1, 1997 decrees. Thus, if the district court on remand finds no good cause to establish a college subsidy, the prior decree must nevertheless be modified to eliminate the existing child-support obligation under the decree. If the district court finds good cause for a subsidy, then the terms of the subsidy modify and replace the existing child-support provision of the decree.

James has asked that the termination of his child-support obligation be made retroactive to August 21, 2004, three months after he served Bonnie with his original notice and petition for modification. See Iowa Code § 598.21(8) (stating child-support obligations “may be retroactively modified only from three months after the date the notice of the petition for modification is served on the opposing party”). We leave this issue to the district court on remand. We also leave it to the district court to determine any claim of reimbursement for support not given to Joel by Bonnie.

IV. Overpayment

One final issue remains for our consideration. The court of appeals determined that James was not entitled to a credit for the overpayment of monthly support after Nicole married, and it reversed the district court modification decree insofar as it granted James a credit of $3457 against future support payments.

“Courts generally do not allow a credit to the obligor spouse for voluntary expenditures made on behalf of the child in a manner other than that specified by a decree.” 24A Am. Jur.2d Divorce and Separation § 1067, at 474 (1998); accord Harner v. Harner, 105 Ill.App.3d 430, 61 Ill.Dec. 312, 434 N.E.2d 465, 468 (1982) (“The general rule is that payments made for the benefit of children which are voluntary and not pursuant to a divorce decree may not be credited against other amounts due under the decree.”); In re Marriage of McCurnin, 681 N.W.2d 322, 328 (Iowa 2004) (holding obligor was not entitled to credit for overpayment of support because he was a volunteer); Bradford v. Futrell, 225 Md. 512, 171 A.2d 493, 497 (1961) (stating the obligor “will not be credited for payments made when he unnecessarily interposed himself as a volunteer and made payments direct to the children of his own accord”); Webb v. Webb, 475 S.W.2d 134, 136 (Mo.Ct.App.1971) (“‘Decrees for child support should be strictly complied with and credit should not be allowed for overpayments voluntarily made.’ ” (quoting Wills v. Glunts, 222 Ga. 647, 151 S.E.2d 760, 762 (1966))); Griess v. Griess, 9 Neb.App. 105, 608 N.W.2d 217, 224 (2000) (“The general rule appears to be that no credit is given for voluntary overpayments of child support, even if they are made under a mistaken belief that they are legally required.”); Horne v. Home, 22 N.Y.2d 219, 292 N.Y.S.2d 411, 239 N.E.2d 348, 350 (1968) (“[Payments made by a father to or for the benefit of his children voluntarily and not pursuant to a divorce decree may not be credited by him against other amounts due and owing under the decree.”); Newton v. Newton, 202 Va. 515, 118 S.E.2d 656, 659 (1961) (“[I]t is the obligation of the divorced husband to pay the specified amounts according to the terms of the decree and that he should not be permitted to vary these terms to suit his convenience.... To permit him to increase the amount of the specified payments at one time, reduce them at another, and require an adjustment of the differences in the future, would lead to continuous trouble and turmoil.”); Robert A. Brazener, Right to Credit on Accrued Support Payments for Time Child is in Father’s Custody or for Other Voluntary Expenditures, 47 A.L.R.3d 1031, 1037 (1973) (“Generally speaking, a father is not entitled to credit against arrearages for overpayments in support money which he made to the mother.”). See generally Alice Wright Cain, Right to Credit on Child Support for Previous Overpayments to Custodial Parent for Minor Child While Child Is Not Living with Obligor Parent, 7 A.L.R.6th 411 (2005). Normally, exceptions are made only “when the equities of the circumstances demand it and when allowing a credit will not work a hardship on the minor children.” Griess, 608 N.W.2d at 224 (citations omitted); see also 24A Am. Jur.2d Divorce and Separation § 1068, at 476-77.

James testified he overpaid because he “wanted [his] son to continue to have the same standard of living he had had before.” It was undisputed that James knew Nicole married, knew his support obligation was $495 per month after Nicole married, and he knew he was overpaying his support. See Palagi v. Palagi, 10 Neb. App. 231, 627 N.W.2d 765, 774 (2001) (equity did not demand giving obligor credit for overpayment of support when he “knowingly and voluntarily” overpaid and did not view the overpayments as “a ‘burden,’ but, rather, he was predisposed all along to fund [his daughter’s college education”). This is not the kind of case in which courts normally grant an exception to the general no-credit-for-voluntary-overpayment rule to do equity, and we see no reason to make an exception in this case. See, e.g., Griess, 608 N.W.2d at 224-25 (exception applicable when “[b]oth parties’ attorneys in the original modification action had a hand in producing the erroneous calculation of child support,” and granting a credit would “not work a hardship on the children”); In re Marriage of Olsen, 229 Ill.App.3d 107, 171 Ill.Dec. 39, 593 N.E.2d 859, 865 (1992) (“It is obvious that the parties mutually misunderstood the marital agreement provision and that Mr. Olsen paid, in good faith, child support from both his bonuses and dividends, believing that he was required to do so by the 20% provision.”); In re Marriage of Tollison, 208 Ill.App.3d 17, 153 Ill.Dec. 2, 566 N.E.2d 852, 854 (1991) (exception applicable when “the overpayment was a result of a court wage deduction order,” and that the obligor filed early on during the period of overpayment “a motion for clarification wherein he indicated he had been seeking clarification of the correct amount owed but to no avail,” which should have put the obligee “on notice that [the obli-gor] was not waiving any rights and to preclude any reliance on her part on the overpayments”); Jackson v. Jackson, 306 Ky. 715, 209 S.W.2d 79, 80 (1948) (father allowed credit for paying daughter’s private school tuition when “the child would lose the credits she had earned if removed at that time and placed in a public school”; father “paid the tuition for the remainder of the term rather than cause the child the inconvenience and loss of credits occasioned by a change of schools”; the payment “was made under compulsion of circumstances created by [the mother]”); Goodson v. Goodson, 32 N.C.App. 76, 231 S.E.2d 178, 182 (1977) (remanding for trial court to balance equities in light of these guidelines: “Credit is more likely to be appropriate for expenses incurred with the consent or at the request of the parent with custody. Payments made under compulsion of circumstances are also more likely to merit credit for equitable reasons. The medical payments for Scott’s tonsillectomy and related treatment would seem to fall within this category.”); see also Cain, 7 A.L.R.6th at §§ 5-10 (listing cases in which credit allowed); Brazener, 47 A.L.R.3d at §§ 4-7 (same). Accordingly, we reverse the portion of the district court judgment that granted James a credit for the overpayment of child support.

V. Conclusion

The district court and the court of appeals erred by concluding that a postsec-ondary education subsidy was not permissible in this case. By its terms, section 598.21(5A) allows for a postsecondary education subsidy. We therefore vacate the decision of the court of appeals and reverse the judgment of the district court insofar as it denied termination of support and establishment of a postsecondary education subsidy. We also reverse the judgment of the district court insofar as it granted James a credit for overpayment of support. We remand the case to the district court for proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: /s/ Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Chester D. SWENSON, a Minnesota Attorney, Registration No. 10789X.
    No. A04-2251.
    Supreme Court of Minnesota.
    May 31, 2006.
   ORDER

On May 23, 2005, this court suspended petitioner from the practice of law for a period of 60 days. Petitioner has filed an affidavit stating that he has fully complied with the terms of the suspension order, has closed his law practice, and requests reinstatement to permanent retired status. The Director of the Office of Lawyers Professional Responsibility does not oppose the request.

Based on all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that effective immediately petitioner Chester D. Swenson is reinstated to the practice of law in the State of Minnesota and is hereby placed on permanent retired status.

BY THE COURT:

/s/ Helen M. Meyer Associate Justice