Jane Doe v. New London Community School District

IN THE SUPREME COURT OF IOWA
No. 13–0405

Filed June 20, 2014

JANE DOE,

Appellee,

vs.

NEW LONDON COMMUNITY SCHOOL DISTRICT,

Appellant,

GINA SISK,

Defendant.

Appeal from the Iowa District Court for Henry County, Cynthia H.

Danielson, Judge.

A school district brings an interlocutory appeal from the district

court’s denial of its motion for summary judgment based on the statute

of limitations. REVERSED AND REMANDED WITH INSTRUCTIONS.

Steven E. Ort of Bell, Ort & Liechty, New London, for appellant

New London Community School District.

Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C.,

Des Moines, for appellee.

Alfredo G. Parrish and Tammy M. Westhoff Gentry of Parrish

Kruidenier Dunn Boles Gribble Gentry & Fisher, L.L.P., Des Moines, for

defendant Gina Sisk.
 2

MANSFIELD, Justice.

This case requires us to decide the timeliness of a lawsuit filed

against a school district in 2012 alleging past sexual abuse. The abuse

was alleged to have occurred when the plaintiff was a high school

student in the early 2000s. The alleged abuser was a teacher who also

served as the plaintiff’s track coach.

The school district moved for summary judgment based on the

statute of limitations in the pre-2007 Iowa Municipal Tort Claims Act.

The district court denied the motion. We granted the district’s

application for interlocutory appeal. We now reverse the district court,

holding: (1) the common law discovery rule does not apply to claims

under the pre-2007 Iowa Municipal Tort Claims Act; (2) Iowa Code

section 614.8A (2005) does not apply to individuals who were fourteen

years or older when the alleged sexual abuse occurred; and (3) the

absence of a discovery rule in the pre-2007 Iowa Municipal Tort Claims

Act does not violate article I, section 6 of the Iowa Constitution.

I. Facts and Procedural Background.

Like the parties and the district court, we assume the truth of

plaintiff’s factual allegations for purposes of our review.

Plaintiff Jane Doe attended school in the New London Community

School District (the District). When Doe started eighth grade in August

1999, defendant Gina Sisk began her first year as an employee of the

District and taught Doe’s eighth-grade science class. Doe participated in

track and field beginning in March of 2000; Sisk was her coach.

During the summer of 2000, Doe was fourteen years old and

between the eighth and ninth grades. At that time, Sisk began to engage

in improper sexual conduct toward her. The starting point was when

Sisk drove Doe and another female student to Lincoln, Nebraska, to
 3

participate in a regional track meet. While there, Sisk, Doe, and the

other student shared a hotel room. Sisk purchased and viewed a

pornographic video in the hotel room shared with Doe and the other

student. Sisk and Doe then slept together in the same hotel room bed,

and Sisk fondled Doe’s genitals.

Following the encounter in the hotel room in July 2000, Sisk

regularly initiated sexual contact with Doe. The acts included kissing,

fondling, digital penetration, and oral sex. Sisk instructed Doe to lie to

her parents and others so Sisk could gain access to Doe. Sisk also

arranged subsequent liaisons with Doe at hotels and motels.

The sexual activity continued during the 2000–2001 school year

and thereafter. Doe feared for her safety at times during the relationship

with Sisk. During one argument, Sisk pushed Doe into a locker and

later called and harassed her. On another occasion, Sisk held a knife to

Doe’s throat and attempted to smother her with a pillow after Doe

threatened to reveal the relationship. In addition to threatening violence,

Sisk also threatened Doe’s position on the track team. During the

summer of 2002 when the relationship temporarily ceased, Sisk

repeatedly drove by Doe’s home and called her cell phone.

In the spring of 2003, Doe was called to the principal’s office at the

high school and asked whether she was involved in a relationship with

Sisk. Sisk had instructed Doe to deny any relationship, and Doe did so

“out of fear of Defendant Sisk and [a] desire to protect her position on the

track team.” Doe was not further questioned by the school about Sisk or

any relationship with her.

In May of 2003, as her junior year was ending, Doe decided to

enlist in the United States Coast Guard. She “wanted to escape

Defendant Sisk’s control and knew that this would not be possible if she
 4

attended a local college to run track.” Even after Doe joined the Coast

Guard upon her high school graduation in 2004, Sisk continued to

contact Doe by sending her letters and visiting her in Florida and

Tennessee. Doe finally ceased all contact with Sisk in 2006. In July

2008, Doe left active duty with the Coast Guard.

In 2011, Doe sought the services of a counselor due to issues with

anxiety and depression. It was through counseling that Doe claims she

“discovered a causal link between the sexual abuse she endured as an

adolescent, at the hands of Defendant Sisk, and the emotional problems

she had been experiencing for many years.”

On March 2, 2012, Doe filed a petition against Sisk and the

District. She asserted claims of assault, battery, and intentional

infliction of emotional distress against Sisk. Against the District, she

alleged claims of respondeat superior, negligent hiring, negligent

retention, negligent supervision, and negligent infliction of emotional

distress. Against both defendants, she asserted claims of negligence and

violations under the Iowa Constitution. Sisk denied Doe’s allegations

about the sexual relationship. The District also denied any wrongdoing.

Both the District and Sisk filed motions for summary judgment arguing

that Doe’s claims were barred by the statute of limitations in the Iowa

Municipal Tort Claims Act (IMTCA). See Iowa Code § 670.5 (2005). 1 Doe

resisted and maintained her claims were timely filed because of the

discovery rule. She alleged that the IMTCA incorporates a common law

discovery rule allowing claims to be brought within two years of the date

1Section 670.5 of the IMTCA was amended by the legislature in 2007. See 2007
Iowa Acts ch. 110, § 5. However, all parties agree that the pre-2007 language governs
here because the conduct in question occurred before 2007. Id. § 6. (“This Act applies
to all complaints, claims, and actions arising out of an alleged death, loss, or injury
occurring on or after July 1, 2007.”).
 5

when the injury and its cause reasonably could have been discovered.

See, e.g., Frideres v. Schiltz, 540 N.W.2d 261, 269 (Iowa 1995) (“The

common law discovery rule requires that the plaintiff know or in the

exercise of reasonable care should have known both the fact of the injury

and its cause.”). Alternatively, if the IMTCA did not include a discovery

rule, she alleged that this circumstance violated the equal protection

clause in the Iowa Constitution. See Iowa Const. art. I, § 6.

On February 18, 2013, the district court denied the defendants’

motions for summary judgment and held that “at least two genuine

issues of material fact” were in dispute. “First, Doe and the Defendants

disagree as to whether or not Doe provided [the District] with notice of

her claim before the commencement of this action . . . .” Second,

according to the district court, “the parties disagree, and the Court

believes that the record is not developed to the point to resolve the

question of when Doe’s injuries occurred.” The district court went on to

state that the defendants had not “satisfied [their] burden of production

to demonstrate that no genuine issue of material fact exists regarding the

application of the appropriate statute of limitations to [Doe]’s claim.”

Both Sisk and the District filed applications for interlocutory

appeal, which we granted. While the appeal was pending, Sisk was

dismissed from the lawsuit by stipulation. The District continued to

pursue its appeal.

II. Standard of Review.

We review the district court’s ruling on a motion for summary

judgment for correction of errors of law. Thomas v. Gavin, 838 N.W.2d

518, 521 (Iowa 2013). Summary judgment is appropriate when “the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine
 6

issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). We view the

summary judgment record in the light most favorable to the nonmoving

party. Bierman v. Weier, 826 N.W.2d 436, 443 (Iowa 2013). We review

constitutional issues de novo. Lewis v. Jaeger, 818 N.W.2d 165, 175

(Iowa 2012).

III. Analysis.

The district court denied the summary judgment motions after

finding the presence of genuine issues of material fact. However, the

parties now essentially agree that the dispositive issue is one of law—

whether a discovery rule is available to the plaintiff. If it is not, then

plaintiff’s claims are time-barred. Our conclusion that the fate of this

lawsuit turns on the availability of a discovery rule appears to be

inescapable. No injury is alleged to have occurred after 2006, and no

notice is alleged to have been given after March 2003, yet Doe did not file

suit until March 2012. Of course, we exclude the time period from July

2004 until July 2008 when Doe was in the Coast Guard. See 50 App.

U.S.C.A. § 526(a) (West Supp. 2013) (tolling of statutes of limitation

during military service). Still, more than two years elapsed from July

2008, when Doe left active duty, until March 2012, when she filed suit.

The IMTCA has a two-year statute of limitations, see Iowa Code

§ 670.5, and no party disputes the applicability of the IMTCA to the

present case. Sisk was employed by the District when the alleged abuse

occurred. See id. § 670.1(2) (“Municipality” means city, county, township,

school district, and any other unit of local government . . . .); id. § 670.2

(“[E]very municipality is subject to liability for its torts and those of its

officers and employees, acting within the scope of their employment or

duties, whether arising out of a governmental or proprietary function.”).
 7

A. Does the IMTCA Incorporate a Common Law Discovery

Rule? At the time of the alleged misconduct, the IMTCA provided as

follows:

Every person who claims damages from any
municipality or any officer, employee or agent of a
municipality for or on account of any wrongful death, loss or
injury within the scope of section 670.2 or section 670.8 or
under common law shall commence an action therefor
within six months, unless said person shall cause to be
presented to the governing body of the municipality within
sixty days after the alleged wrongful death, loss or injury a
written notice stating the time, place, and circumstances
thereof and the amount of compensation or other relief
demanded. Failure to state time or place or circumstances
or the amount of compensation or other relief demanded
shall not invalidate the notice; providing, the claimant shall
furnish full information within fifteen days after demand by
the municipality. No action therefor shall be maintained
unless such notice has been given and unless the action is
commenced within two years after such notice. The time for
giving such notice shall include a reasonable length of time,
not to exceed ninety days, during which the person injured
is incapacitated by the injury from giving such notice.

Iowa Code § 670.5.

In 1986, we held that the foregoing six-month limitation period for

persons who had failed to give notice before suing a municipality violated

the Equal Protection Clauses of both the United States and Iowa

Constitutions. See Miller v. Boone Cnty. Hosp., 394 N.W.2d 776, 778–81

(Iowa 1986). While plaintiffs proceeding under the IMTCA without giving

notice had only six months to bring suit, persons with claims against

private parties were allowed two years to file suit. Id. at 779 & n.4. We

ended our opinion with a statement that “Iowa Code chapter 614 [the

general limitations of actions chapter] is the applicable statute of

limitations for all actions arising under chapter 613A [now 670].” Id. at

781.
 8

Yet several years later, in Clark v. Miller, we clarified that we had

not intended to declare the entirety of what is now section 670.5

unconstitutional, only the six-month time limit. See 503 N.W.2d 422,

425 (Iowa 1993). Thus, we held that if timely notice were given, as

provided in the statute, the claimant could have a full two years from the

giving of notice to file suit, even though this resulted in a different

limitations period than was available against a private party. Id. This

discrepancy between the IMTCA and general tort law did not violate

equal protection guarantees. Id.

We have separately addressed the question whether a discovery

rule is available under the pre-2007 IMTCA on multiple occasions and

consistently held it is not. In Montgomery v. Polk County, the plaintiff

sued the county for loss of her bail money, alleging the clerk of court had

paid out the money to an unauthorized individual. See 278 N.W.2d 911,

912–13 (Iowa 1979). The plaintiff’s filing missed the IMTCA statutory

deadlines if they were computed from the date the clerk paid out the bail

money. Id. However, the plaintiff alleged the discovery rule extended her

deadlines because she had been unaware of the clerk’s actions. Id. at

913–14. We disagreed. We found that Iowa Code section 613A.5 (now

section 670.5) was a “statute of creation” where the deadlines for giving

notice or filing suit were triggered by the “injury.” Id. at 917. We

emphasized that the IMTCA contains no term like “accrues” to give the

statute “elasticity” for the court to consider “when a cause of action

‘accrues.’ ” Id. at 914; cf. Iowa Code § 614.1 (“Actions may be brought

within the times herein limited, respectively, after their causes accrue,

and not afterwards, except when otherwise specially declared . . . .”).

Because the IMTCA required an injured person to “ ‘commence an action

therefor [i.e., for the injury] within six months,’ ” we concluded the
 9

legislature did not intend to extend the time for filing claims except in the

situations elsewhere covered by the statute, such as a person

incapacitated by injury. 278 N.W.2d at 914, 918 (quoting Iowa Code

§ 613A.5 (now § 670.5)). Hence, we held the discovery rule was not

applicable to claims brought under the IMTCA. Id.

Four years later, we revisited this issue in another case because

the district court had predicted that “upon reconsideration, a majority of

this court would now vote to overrule Montgomery” on the applicability of

the discovery rule to claims filed under the IMTCA. Farnum v. G.D.

Searle & Co., 339 N.W.2d 392, 396 (Iowa 1983). Yet instead of overruling

Montgomery, we reaffirmed that the court “adheres to the holding in

Montgomery.” Id. Thus, in our view, the trial court “erred in holding that

[the IMTCA] includes a discovery rule.” Id.

We stuck to this position in two other pre-Miller cases. See

Uchtorff v. Dahlin, 363 N.W.2d 264, 266 (Iowa 1985) (“Though Uchtorff

urges us to overrule Farnum and Montgomery, the majority of this court

is not persuaded to do so.”); Orr v. City of Knoxville, 346 N.W.2d 507, 510

(Iowa 1984) (finding “no reason to overrule” Farnum’s decision on the

discovery rule).

Furthermore, our interpretation of this aspect of the IMTCA did not

change after Miller. In Callahan v. State, decided four years after Miller,

we reiterated that Montgomery held “the discovery rule did not apply to

the statute of limitations of . . . Iowa Code section 613A.5 [now section

670.5], noting that the time limitation of that section did not commence

on ‘accrual’ of the claim.” 464 N.W.2d 268, 270 (Iowa 1990). We

contrasted the IMTCA’s limitations provision with that in the Iowa Tort

Claims Act. Id. Only the latter, we explained, “begin[s] the period of

limitations with the ‘accrual’ of the claim.” Id.; see also Vachon v. State,
 10

514 N.W.2d 442, 445 (Iowa 1994) (reaffirming Callahan and noting that

“[w]here a statute of limitations uses the term ‘accrued’ with regard to

when the statute begins to run, the discovery rule applies”).

In Perkins ex rel. Perkins v. Dallas-Center Grimes Community School

District, we resolved a different question under the IMTCA, holding that

the tolling provision for minors in Iowa Code section 614.8 did not apply

to IMTCA claims. See 727 N.W.2d 377, 380–81 (Iowa 2007). Yet in the

course of our opinion, we emphasized that “[t]he Iowa legislature has

never indicated any intent to incorporate a tolling provision [in section

670.5].” Id. at 381. Miller, we explained, only affected “the statute’s

requirement of filing suit in six months or giving notice within sixty

days.” Id. at 380.

We reiterated the Perkins holding in Rucker v. Humboldt

Community School District, where we highlighted that “our Miller opinion

struck down only the provision requiring commencement of an action

within six months if notice is not given within sixty days.” 737 N.W.2d

292, 294 (Iowa 2007). Although both Perkins and Rucker involved

statutory rather than common law tolling, they confirmed that Miller did

not affect any aspect of the IMTCA other than the six-month deadline for

filing suit where no notice had been given and thus did not alter the

holdings in Montgomery, Farnum, and Uchtorff.

As we have noted, the general assembly amended the IMTCA’s

limitations provision in 2007. 2007 Iowa Acts ch. 110, § 5. Thus, the

new version reads:

Except as provided in section 614.8, a person who claims
damages from any municipality or any officer, employee or
agent of a municipality for or on account of any wrongful
death, loss, or injury within the scope of section 670.2 or
section 670.8 or under common law shall commence an
 11
action therefor within two years after the alleged wrongful
death, loss, or injury.

Iowa Code § 670.5 (Supp. 2007). The Legislative Services Agency’s 2007
Summary of Legislation indicates that the new language, expressly

requiring the action to be commenced within two years of the “injury,”

was believed to be a continuation of the old:

The Act eliminates a portion of Code Section 670.5, formerly
Code Section 613A.5, requiring a person claiming damages
from any municipality on account of any wrongful death,
loss, or injury to commence an action within six months
after the wrongful death, loss, or injury. This six month
statute of limitation period was declared unconstitutional by
the Iowa Supreme Court in Miller v. Boone County Hospital,
394 N.W.2d 776 (Iowa 1986). The Act retains the remaining
portion of Code Section 670.5 that allows a person to
commence a tort action against any municipality on account
of any wrongful death, loss, or injury within two years after
the date of the wrongful death, loss, or injury.

Legis. Servs. Agency, 2007 Summary of Legislation, S.F. 384—Limitations

of Civil Rights Claims and Civil Lawsuits—Minors, Mentally Ill Person,

and State and Local Government (Iowa 2007), available at

https://www.legis.iowa.gov/search?fq=&q=2007+Summary+of+Legislatio

n&start=0&sort=score+desc&rows=10&fq=-status%3AReserved.

In sum, on several occasions, we have discussed the pre-2007

version of section 670.5 and said it did not incorporate a common law

discovery rule. See, e.g., Callahan, 464 N.W.2d at 270; Uchtorff, 363

N.W.2d at 266; Farnum, 339 N.W.2d at 396; Montgomery, 278 N.W.2d at

918. We reached this conclusion based upon the absence of language

like “accrue” or “accrual” in the IMTCA to suggest that something other

than the date of injury might be the starting point for the statute of

limitations. See Callahan, 464 N.W.2d at 270; Montgomery, 278 N.W.2d

at 918. Especially given the further fact that section 670.5 has now been
 12

legislatively rewritten, we see no reason to disturb our longstanding

precedent in this area.

B. Does the Special Limitations Period for Child Sexual Abuse

Claims in Iowa Code Section 614.8A Apply to IMTCA Claims? Doe

alternatively argues that she is entitled to the benefit of the special

statute of limitations set forth in section 614.8A for child sexual abuse

claims. See Iowa Code § 614.8A (2005). That section provides:

An action for damages for injury suffered as a result of
sexual abuse which occurred when the injured person was a
child, but not discovered until after the injured person is of
the age of majority, shall be brought within four years from
the time of discovery by the injured party of both the injury
and the causal relationship between the injury and the
sexual abuse.

Id. The District maintains that section 614.8A is not available to Doe

because she was not a child, as that term is used in the law, at the time

of the alleged abuse.

Section 614.8A was enacted in 1990. See 1990 Iowa Acts ch.

1241, § 2. The underlying legislation consisted of two sections. The first

section amended an existing law that limited evidence of the alleged

victim’s prior sexual conduct in civil actions relating to sexual abuse. Id.
§ 1 (codified at Iowa Code § 668.15 (1991)). The second section was the

special limitations provision quoted above. Id. § 2 (codified at Iowa Code

§ 614.8A (1991)).

Four years later, in Doe v. Cherwitz, we were called upon to answer

questions certified to us by a federal district court. See 518 N.W.2d 362,

363 (Iowa 1994). One question dealt with the meaning of child in section

614.8A. Id. In particular, was an eighteen-year-old a child if “the age of

majority” at the time was nineteen years? Id.
 13

We declined to hold that “child” in section 614.8A meant someone

who had not attained the age of majority. Id. at 363–64. Rather, we

noted that the first section of the 1990 legislation referred to sexual

abuse “as defined in section 709.1,” that section 709.1 in turn defined

“sexual abuse” to include a sex act with a “child,” and that a “child” was

defined in the criminal code as a person under the age of fourteen. Id.

We also acknowledged the defendants’ argument that the legislature had

used the word “child” in the second section of the legislation rather than

“minor.” Id. at 363. 2 We decided that the first section of the legislation

“shed[] light” on the meaning of child in the second section and,

therefore, for purposes of section 614.8A, a child meant someone under

the age of fourteen. Id. at 363–64.

Our conclusion that section 614.8A incorporated the criminal

code’s definition of child was perhaps debatable. One can take the view

that, as enacted, the section divided the time period when the injured

person “was a child” from the time period when that person “is of the age

of majority,” without contemplating a gap of years in between. See Iowa

Code § 614.8A. And while the first section of the 1990 legislation

referred to sexual abuse “as defined in section 709.1,” the second section

did not include a section 709.1 reference, perhaps suggesting that

section 709.1 did not govern the meaning of child in section 614.8A. See

id. 3

2Thetolling provision in section 614.8 employs the term “minor” and did so
when the legislature enacted section 614.8A in 1990. See Iowa Code § 614.8 (1989);
1990 Iowa Acts ch. 1241, § 2.
3On the other hand, the legislature did use the term “child” rather than the term
“minor” in section 614.8A. Because the latter term appeared nearby in Iowa Code
section 614.8, the legislature’s choice of wording in section 614.8A arguably implied
that it meant to draw a distinction between a “child” and a “minor.”
 14

However, we have reiterated what we said in Cherwitz in two other

opinions. Six months after Cherwitz, we upheld a verdict in a civil action

brought by a daughter against her father for abuse that had occurred in

1987. See Claus v. Whyle, 526 N.W.2d 519, 523 (Iowa 1994). In

rejecting the father’s limitations defense, we cited Cherwitz for the

proposition that a child had to be under the age of fourteen for purposes

of section 614.8A. Id. at 524 & n.2. We said, “Being only thirteen years

of age on November 7, 1987, Beverly Jo was still a child as contemplated

by section 614.8A when the incident occurred.” Id. at 524.

A year later in Frideres v. Schiltz, we again referred briefly to our

Cherwitz decision concerning the meaning of a child in section 614.8A.

See 540 N.W.2d 261, 265 (Iowa 1995). We did not suggest the Cherwitz

decision was flawed or otherwise call it into question. See id.

In 1996, in Borchard v. Anderson, we squarely reaffirmed Cherwitz.

See 542 N.W.2d 247, 250 (Iowa 1996). There, we ruled that a civil action

for infliction of domestic abuse was time-barred and explained,

The second statutory exemption plaintiff suggests,
Iowa Code section 614.8A, is also inapplicable. This section
extends the period of time in which a person may file an
action for damages for sexual abuse suffered as a child. The
term “child” pursuant to this section means “one under the
age of fourteen.” Doe v. Cherwitz, 518 N.W.2d 362, 364
(Iowa 1994); see also Iowa Code § 599.1 (stating all minors
attain their majority by marriage). Plaintiff was fifteen years
old at the time of her marriage to Anderson. Therefore Iowa
Code section 614.8A cannot save her claim.

Id.

At this point, Cherwitz has been followed as the law of this state

for twenty years. Good arguments may exist for a different interpretation

of section 614.8A, but they are not new arguments that did not exist in

1994. Also, one cannot say that Cherwitz’s interpretation of the statute
 15

was merely dictum or a decision rendered in passing; we were answering

a certified question directly posed to us by the federal district court.

Hence, we believe that some of the observations we made in

another recent statutory interpretation case also apply here:

[T]he path we follow in this case is one primarily built on the
venerable principles of stare decisis and legislative
acquiescence. We are slow to depart from stare decisis and
only do so under the most cogent circumstances. Moreover,
we presume the legislature is aware of our cases that
interpret its statutes. When many years pass following such
a case without a legislative response, we assume the
legislature has acquiesced in our interpretation.

....

. . . Overall, we think our legislature would be quite
surprised to learn if we decided to reverse course and take a
different position under the guise of statutory interpretation.
We did our job twenty-seven years ago and will leave it for
the legislature to take any different approach. The specific
arguments presented by the plaintiffs are not so powerful or
obvious that they plainly undermine our prior line of cases.

Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013)

(citations omitted).

Notably, our existing interpretation of section 614.8A does not

minimize the harm associated with sexual abuse of minors aged fourteen
to seventeen. These persons can still utilize the tolling provisions of

section 614.8 as enacted by the legislature; they merely cannot utilize

section 614.8A.

Here, Doe had already turned fourteen in the summer of 2000

when the alleged sexual abuse began. She was not a child within the

meaning of section 614.8A and therefore cannot use this statute to

preserve her claims against the District. 4

4Even if we overruled Cherwitz and the later decisions that followed it, we would
then have to confront another question: Can Iowa Code section 614.8A apply to pre-
2007 IMTCA claims? In Perkins and Rucker, we ruled the tolling provision for minors in
 16

C. Would Failure to Apply the Discovery Rule Violate Article I,

Section 6 of the Iowa Constitution? Doe’s final argument is that

failure to apply the discovery rule to her cause of action would violate the

Iowa Constitution’s equal protection clause. Article I, section 6 of the

Iowa Constitution states, “All laws of a general nature shall have a

uniform operation; the general assembly shall not grant to any citizen, or

class of citizens, privileges or immunities, which, upon the same terms

shall not equally belong to all citizens.” Iowa Const. art. I, § 6. Doe

contends that not recognizing a discovery rule for claims under the

IMTCA would “treat those injured by municipal employees differently

than those injured by private tortfeasors without a rational basis for

doing so.” Doe thus concedes the proper test to apply in this case is the

rational basis test. See Horsfield Materials, Inc. v. City of Dyersville, 834

N.W.2d 444, 458 (Iowa 2013) (“Because no suspect class or fundamental

right is at issue, we apply the rational basis test.”); King v. State, 818

N.W.2d 1, 25 (Iowa 2012) (“Unless a suspect class or a fundamental right

is at issue, equal protection claims are reviewed under the rational basis

test.”); Fisher v. McCrary-Rost Clinic, P.C., 580 N.W.2d 723, 725 (Iowa

1998) (noting that “statutes of limitation do not implicate or affect

fundamental rights”).
________________________________
section 614.8 did not apply to pre-2007 IMTCA claims. Rucker, 737 N.W.2d at 295;
Perkins, 727 N.W.2d at 381. In those cases we reasoned that “ ‘[t]he Iowa legislature
has never indicated any intent to incorporate a tolling provision in [the pre-2007]
chapter 670.’ ” Rucker, 737 N.W.2d at 295 (quoting Perkins, 727 N.W.2d at 381).
Finally, the current, post-2007 version of the IMTCA expressly recognizes
section 614.8, but not section 614.8A, as an exception to its normal limitations period.
See Iowa Code § 670.5 (2013) (“Except as provided in section 614.8, a person who claims
damages from any municipality . . . shall commence an action therefor within two years
after the alleged wrongful death, loss, or injury.” (Emphasis added.)). Thus, even were
we to overrule Cherwitz and its progeny and find section 614.8A applicable to claims
under the pre-2007 IMTCA, it seems clear that this holding could not apply to claims
arising under the current version of the IMTCA.
 17

“The rational basis test is a ‘deferential standard,’ ” and for the

purposes of an equal protection claim, “we must determine only whether

the classification is ‘rationally related to a legitimate governmental

interest.’ ” Horsfield, 834 N.W.2d at 458 (citations omitted). “Under a

traditional rational basis review, courts are required to accept

generalized reasons to support the legislation, even if the fit between the

means and end is far from perfect.” Varnum v. Brien, 763 N.W.2d 862,

879 n.7 (Iowa 2009). As we have said recently regarding the rational

basis test,

A statute or ordinance is presumed constitutional and the
challenging party has the burden to negate every reasonable
basis that might support the disparate treatment. The City
is not required or expected to produce evidence to justify its
legislative action. Still, for state constitutional purposes, the
government interest must be realistically conceivable. And
in the equal protection context, the means chosen to
advance that interest cannot be so overinclusive and
underinclusive as to be irrational.

Horsfield, 834 N.W.2d at 458–59 (citations omitted) (internal quotation

marks omitted). In addition, merely favoring one class over another (e.g.,

municipalities over private tortfeasors or riverboats over racetracks) is

not in itself a justification for differential treatment. Racing Ass’n of

Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 13 (Iowa 2004). There has to be

some independent ground for the different treatment. Id.

Upon our review, we believe a rational basis exists for the

legislature to place, within reason, greater limits on legal claims against

municipalities than on legal claims against private entities.

Municipalities have finite resources and a limited ability to raise more

resources. See Messerchmidt v. City of Sioux City, 654 N.W.2d 879, 882

(Iowa 2002) (discussing the discretionary function immunity for

municipalities and noting that it applies where the city may weigh
 18

various competing needs including “limited financial resources”). Claims

against municipalities, unlike claims against private entities, are

ultimately paid for by residents of those municipalities. For example, in

this case, any award against the District would be paid by local

taxpayers or by an insurer under a policy purchased by local taxpayers.

Insurance rates, in turn, are often affected by claims experience and the

risks being covered. Thus, our legislature could reasonably determine

that municipalities should bear some responsibility for misconduct

committed by their employees and not benefit from absolute sovereign

immunity, but the legal responsibility should not extend as far as that of

a private entity.

Indeed, this philosophy pervades the IMTCA, which contains

numerous exemptions for municipalities that are not available to private

tortfeasors. See Iowa Code § 670.4(1)–(15) (2005) (listing “[c]laims

exempted”); see also Kulish v. Ellsworth, 566 N.W.2d 885, 890 (Iowa
1997) (overruling the plaintiff’s claim that a city’s immunity under the

emergency response exemption amounted to an equal protection

violation); Baker v. City of Ottumwa, 560 N.W.2d 578, 582 (Iowa 1997)

(finding no equal protection violation where city was immune from suit

under the IMTCA’s swimming pool exemption); Gard v. Little Sioux

Intercounty Drainage Dist., 521 N.W.2d 696, 699 (Iowa 1994) (finding a

rational basis for the immunity of drainage districts but not

municipalities from tort claims, given “the limited nature of a drainage

district’s purposes and powers”). Doe’s position, seemingly, would

endanger every one of these exemptions, as Doe’s counsel effectively

acknowledged in oral argument before this court.

In Farnum, we decided a question very close to the present one,

holding it did not violate the Equal Protection Clause of either the Iowa or
 19

the United States Constitutions for a discovery rule to be available under

the Iowa Tort Claims Act but not the IMTCA. 339 N.W.2d at 396–97. We

explained, “Despite home rule, counties operate under greater fiscal

constraints than the state does. Their main source of revenue is the

property tax. The property tax levy is subject to a statutory ceiling.” Id.

at 397 (citations omitted). Similar grounds justify the availability of a

discovery rule as to claims against private tortfeasors but not

municipalities. We have never overruled Farnum.

It is true that in Miller, we invalidated the six-month limitations

period for claims against municipalities that the legislature had imposed

whenever notice was not given within sixty days of the injury. See 394

N.W.2d at 780. We considered four possible rational bases for upholding

this limit and rejected all four. Id. at 779–80. These were: “stale claims,”

“planning of budgets,” “settling of valid claims,” and “repair of defective

conditions.” Id. With respect to budget planning, we noted that the
legislature contemplated municipalities would purchase liability

insurance to protect themselves. Id. at 780. Budget planning, however,

is not the same issue as limited resources. A municipality may have the

ability to avoid a budget surprise through the use of insurance, but this

does not mean its resources are without limits. We did not discuss in

Miller the tight fiscal constraints of municipalities, the factor we had

considered dispositive in Farnum when we upheld the IMTCA’s failure to

include a discovery rule.

Furthermore, Miller used language that was pointedly critical of the

six-month bar. We referred to the six-month bar that applied when no

sixty-day notice had been given as “arbitrary treatment” and a “trap for

the unwary.” Id.; see also id. at 778 (“To defer to the legislature because

it has provided liability for the negligence of the State’s political
 20

subdivisions is to say every condition imposed, no matter how harsh,

may never be questioned.”).

Subsequent authority, as we have already noted, clarified the

scope of Miller. This clarification extended to its constitutional holding.

See Harden v. State, 434 N.W.2d 881, 885 (Iowa 1989).
In Harden, we had to decide whether the Equal Protection Clause

of the United States Constitution or of the Iowa Constitution was violated

when a minor plaintiff suing under the Iowa Tort Claims Act could not

rely on the tolling provision of Iowa Code section 614.8 (extending the

time to bring a claim for a plaintiff injured as a minor to one year “from

and after the attainment of majority”). Id. The plaintiff argued she was

“denied equal protection of the law because [the Iowa Tort Claims Act]

gives minors injured by the state a two-year statute of limitations, while

minors injured by a private party benefit from the tolling provisions of

section 614.8.” Id.

The plaintiff in Harden relied heavily on our decision in Miller. Id.

Yet we rejected the plaintiff’s claim, stating:

Miller is distinguishable from this case on several
grounds. First, [the Iowa Tort Claims Act] establishes a two-
year statute of limitations, and not a sixty-day notice
requirement. The argument that this two-year statute of
limitations is a “trap to the unwary” is much weaker than in
the case of the sixty-day notice provision. Also, Miller dealt
with a municipal government and this case deals with a
state government. In Miller, we rejected the rationale that a
municipal government needed a sixty-day notice provision in
order to plan budgets, prevent stale claims, or settle valid
claims. These arguments are more rational when viewed in
the context of a state government placing a two-year
limitation of action on claims against the state. The
restrictive notice requirement is considerably different than
the requirement that a claim be made within two years after
the claim accrues.

Id. at 885–86.
 21

Harden thus indicates that the presence of a “trap for the unwary”

drove the decision in Miller and that the legislature does not have a

general obligation to give litigants suing government entities the benefit

of the same limitations rules as litigants suing private parties. See id. In

the present case, while we do not at all deny the seriousness of Doe’s

allegations, we are not talking about a legislative trap for the unwary.

Our view is consistent with the holdings of other courts that the

legislature may establish different limitations rules for municipal or state

defendants as opposed to private defendants.

Legislatures may limit the time within which actions
against municipal corporations can be brought. Frequently,
legislatures enact statutes prescribing periods of limitation,
which may be for a shorter period than that provided in the
general limitations statute.

17 Eugene McQuillin, The Law of Municipal Corporations § 49:8, 260–63

(3d ed. 2014 rev. vol.); see, e.g., Day v. Mem’l Hosp. of Guymon, 844 F.2d

728, 732 (10th Cir. 1988) (applying Oklahoma law and finding no equal

protection violation under the Oklahoma Constitution in a one-year

notice provision applicable to governmental tort claims but not to private

tort claims); Large v. City of Birmingham, 547 So. 2d 457, 458 (Ala. 1989)

(noting a provision that required a plaintiff to provide a municipality with

notice of any tort claims against it within six months of accrual was not

in violation of constitutional guaranties of equal protection); Sadler v.

New Castle County, 524 A.2d 18, 27–28 (Del. Super. Ct. 1987) (upholding

notice provision that operated as a special one-year statute of limitations

and observing that “[t]he Court is satisfied that the differences between

governmental and nongovernmental tortfeasors warrant[] specialized

treatment where the City of Wilmington may incur liability for tortious

conduct”); Johnson v. Md. State Police, 628 A.2d 162, 166–67 & n.7 (Md.
 22

1993) (noting a “majority of courts . . . have held that notice of claim

requirements under the Tort Claims Acts do not violate equal protection

principles” and compiling cases); Rowland v. Washtenaw Cnty. Rd.

Comm’n, 731 N.W.2d 41, 52 n.9 (Mich. 2007) (noting, while examining a

120-day notice provision, that “the vast majority of jurisdictions that

have considered such a constitutional challenge ha[ve] concluded that

notice-of-claim and statute-of-limitations rules placed on persons

bringing tort actions against governmental entities are rationally related

to reasonable legislative purposes and thus do not violate equal

protection” and compiling cases); Findley v. City of Kansas City, 782

S.W.2d 393, 397 (Mo. 1990) (en banc) (finding a number of legitimate

legislative concerns justified a notice provision that required persons

injured by municipal tortfeasors to notify the mayor of a municipality

within ninety days of their accident or lose their ability to seek damages

and holding the provision did not violate equal protection); Willis v. City

of Lincoln, 441 N.W.2d 846, 851–54 (Neb. 1989) (rejecting argument that

one-year notice of claim deadline in the Political Subdivisions Tort

Claims Act violated the United States or the Nebraska Constitution,

commenting that it “may provide the political subdivision with an early

opportunity to remedy a situation dangerous to the public,” and adding

that “those concerns are particularly compelling in reference to claims

against political subdivisions, whose services are frequently essential to

the public safety and welfare”); Espanola Hous. Auth. v. Atencio, 568 P.2d

1233, 1235–36 (N.M. 1977) (finding a city’s limited financial expenditures

and restricted ability to raise money provided a rational basis to support

a shortened statute of limitations against government entities); Powell v.

N.M. State Highway & Transp. Dep’t, 872 P.2d 388, 394 (N.M. Ct. App.

1994) (“A majority of states that have considered [statutes requiring the
 23

giving of notice to a governmental entity as a condition of filing suit

against governmental bodies] have upheld such statutes against

challenges asserting that notice requirements violate constitutional equal

protection provisions.”) (compiling cases); Univ. of Tex. Med. Branch at

Galveston v. Greenhouse, 889 S.W.2d 427, 432 (Tex. App. 1994) (noting a

discovery rule was not applicable to a six-month notice provision and

rejecting a constitutional challenge to that provision).

We recognize some courts have determined there is no rational

basis to support different classifications for statute of limitations rules

involving governmental entities. But the facts of these cases indicate

that most—if not all of them—can be viewed as special cases, like Miller,

where the separate limitations rule for the governmental entity appeared

to be particularly arbitrary. See, e.g., Crandall v. City of Birmingham,

442 So. 2d 77, 79 (Ala. 1983) (per curiam) (finding no rational basis for a

ninety-day limitations period for claims against state’s largest city when

claims against all other municipalities were subject to a 180-day

limitations period); Silva v. City & County of Honolulu, 165 P.3d 247,

258–59 (Haw. 2007) (distinguishing Farnum and finding no rational basis

for a six-month limitations period for claims against a county as opposed

to a two-year limitations period for claims against the state given that the

legislature had recently eliminated the disparity and given that the

record did not show Hawaiian counties had the same limits on raising

funds as Iowa counties).

IV. Conclusion.

For the foregoing reasons, we find the common law discovery rule

does not apply to actions under the pre-2007 IMTCA, the limitations

provision in Iowa Code section 614.8A is not applicable to this case, and

the absence of a common law discovery rule in the pre-2007 IMTCA does
 24

not violate the Iowa Constitution’s equal protection clause. Therefore, we

reverse the district court’s denial of the District’s motion for summary

judgment and remand the case with instructions that the district court

enter summary judgment dismissing Doe’s petition.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All justices concur except Wiggins, Hecht and Appel, JJ. who

dissent.
 25

#13–0405, Doe v. New London Cmty. Sch. Dist.

WIGGINS, Justice (dissenting).

I dissent. I agree with the court that we have previously defined

“child” in Iowa Code section 614.8A to mean a person under fourteen

years old. Doe v. Cherwitz, 518 N.W.2d 362, 364 (Iowa 1994). I also

acknowledge that under the principles of stare decisis, we are obligated

to follow prior precedent and should not overturn a prior decision merely

because we may interpret the statute differently than our predecessors.

State v. Bruce, 795 N.W.2d 1, 3 (Iowa 2011). However, it is our obligation

to revisit a prior decision of our court if we conclude the previous

decision is unsound. Id. I believe our prior interpretation of section

614.8A is unsound and needs revisiting. Before doing so, it is first

necessary to comment on our prior decisions on this statute.

As the court points out, we first decided this issue in 1994. See

Cherwitz, 518 N.W.2d at 364. There, we contemplated the entire

amendment and concluded the word “child” in section 614.8A should be

defined as it is defined in section 702.5 of the criminal code. Id. At the

time of the Cherwitz decision, this court sat in panels. Although the

panel decided Cherwitz unanimously, we did not make the decision by

deliberating as a whole.

Two months later, another five-member panel of the court cited to

Cherwitz. See Claus v. Whyle, 526 N.W.2d 519, 524 (Iowa 1994). This

panel included three members of the Cherwitz panel. Id. at 520. In

Claus, the plaintiff was thirteen years old at the time of the alleged

abuse. Id. at 524. Thus, the court held the statute of limitations did not

bar her cause of action because she was under the age of fourteen at the

time of her alleged sexual abuse. Id. The Claus case did nothing to

further or reaffirm our interpretation of section 614.8A from Cherwitz
 26

because a reexamination of our prior interpretation was not necessary to

decide the statute of limitations did not bar the plaintiff’s cause of action.

Finally, in 1996 the same panel of judges who decided Cherwitz

held section 614A.8 did not apply to a fifteen year old. Borchard v.

Anderson, 542 N.W.2d 247, 248, 250 (Iowa 1996). The panel reached

this conclusion without any further analysis. See id. at 250.

Additionally, there is no indication the plaintiff asked the court to

reconsider its decision in Cherwitz. See id. We have not revisited our

interpretation of section 614.8A for almost twenty years.

Turning to the merits, I believe we wrongly decided the

interpretation of section 614.8A in Cherwitz. The house file adopting

section 614.8A had two sections. It provided:

Section 1. Section 668.15, Code Supplement 1989, is
amended to read as follows:

668.15 DAMAGES RESULTING FROM SEXUAL
ABUSE – EVIDENCE.

1. In a civil action alleging conduct which constitutes
sexual abuse, as defined in section 709.1, sexual assault, or
sexual harassment, a party seeking discovery of information
concerning the plaintiff’s sexual conduct with persons other
than the person who committed the alleged act of sexual
abuse, as defined in section 709.1, sexual assault, or sexual
harassment, must establish specific facts showing good
cause for that discovery, and that the information sought is
relevant to the subject matter of the action and reasonably
calculated to lead in the discovery of admissible evidence.

2. In an action against a person accused of sexual
abuse, as defined in section 709.1, sexual assault, or sexual
harassment, by an alleged victim of the sexual abuse, sexual
assault, or sexual harassment, for damages arising from an
injury resulting from the act of sexual abuse alleged
conduct, evidence concerning the past sexual behavior of the
alleged victim is not admissible.

Sec. 2. NEW SECTION. 614.8A DAMAGES FOR
CHILD SEXUAL ABUSE – TIME LIMITATION.
 27
An action for damages for injury suffered as a result of
sexual abuse which occurred when the injured person was a
child, but not discovered until after the injured person is of
the age of majority, shall be brought within four years from
the time of discovery by the injured party of both the injury
and the causal relationship between the injury and the
sexual abuse.

1990 Iowa Acts ch. 1241. In the first section, the underlined language is

new language, while the language with the strikethrough is language

stricken from the prior statute.

A close examination of this amendment reveals a number of factors

indicating Cherwitz was wrongly decided. First, the first section of House

File 2268 is a discovery and evidentiary rule; it is not substantive law.

The second section is substantive law. For this reason, the legislature’s

reference to section 709.1 in the first section’s procedural rule does not

mean the legislature necessarily incorporated section 709.1 in the

second section’s substantive rule. Moreover, the legislature chose to cite

specifically to section 709.1 in the first section, but failed to do so in the

second section. This leads me to believe the legislature never intended to

apply the definition of child in section 709.1 to the second section. The

legislature could have made its intent clear by referencing section 709.1

in the second section, but did not do so.

Further, the panel in Cherwitz ignored a guiding principle of

interpretation when it decided Cherwitz. We have said a guiding

principle of interpretation when we interpret a statute of limitations is

that “[c]ourts do not favor statutes of limitations.” Welp v. Iowa Dep’t of

Revenue, 333 N.W.2d 481, 484 (Iowa 1983). When we can interpret a

limitations statute in two possible ways, we prefer and apply the

interpretation that gives the litigant the longer period of time to seek

relief. Id.
 28

The common meaning of child is “[a] person under the age of

majority.” Black’s Law Dictionary 271 (9th ed. 2009). Our Code defines

child in the same way when defining to whom our child protection laws

apply. See Iowa Code § 232.68(1) (2005) (“ ‘Child’ means any person

under the age of eighteen years.”); id. § 234.1(2) (“ ‘Child’ means either a

person less than eighteen years of age or a person eighteen or nineteen

years of age” who meets certain conditions); id. § 235.1(2) (“Child” means

the same as “defined in section 234.1.”); id. § 252B.1(2) (“ ‘Child’ . . .

means a child actually or apparently under eighteen years of age . . . .”).

When the legislature failed to include the section 709.1 definition of child

in section 614.8A, we should apply the common meaning of child in

interpreting section 614.8A. By giving child its common meaning, we are

interpreting section 614.8A in a way that gives the litigant the longer

period to seek relief.

Lastly, the legislature’s inaction since our decision does not

prevent us from reexamining our position. As we have previously stated:

It is, of course, the role of the legislature to write
statutes, and it is our role to interpret them based on their
application in the course of litigation. Moreover, the
legislature can rewrite a statute to reflect its intent when it
does not believe our interpretation in a particular case has
accomplished this goal. Yet, these general principles of
separation of powers and fundamental duties do not totally
absolve us from our continued responsibility to interpret
applicable statutes in each case and, more importantly, to
revisit our past interpretations if we are convinced they have
not clearly captured the intent of our legislature. We adhere
to precedent, but also remain committed to clarifying the law
as we work with our precedent. When our interpretation of a
statute has created problems in the application of the statute
to subsequent cases, we should be willing to reexamine our
precedent to see if our understanding of the legislative intent
can be better articulated.
 29

Rathje v. Mercy Hosp., 745 N.W.2d 443, 447 (Iowa 2008). Although stare

decisis is important to maintain the rule of law, we should not use stare

decisis to maintain a clearly erroneous statutory interpretation just

because we used that interpretation in the past. Kersten Co., Inc. v. Dep’t

of Soc. Servs., 207 N.W.2d 117, 121 (Iowa 1973).

Thus, I would affirm the judgment of the district court and allow

this matter to proceed to trial.

Hecht and Appel, JJ., join this dissent.