IN THE COURT OF APPEALS OF IOWA
No. 14-0764
Filed March 25, 2015
KYLE CONKLIN and A.C., a minor, by
KYLE CONKLIN, her father, next
friend and legal guardian,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cherokee County, Carl J.
Petersen, Judge.
Kyle Conklin and A.C. appeal the district court’s grant of the State’s
motion to dismiss. AFFIRMED.
Jack B. Bjornstad of Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General of Iowa, and William R. Pearson, Assistant Attorney General, for
appellee State.
Heard by Vogel, P.J., McDonald, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
VOGEL, P.J.
Kyle Conklin along with his minor daughter A.C., (hereafter “Conklin”),
appeal the district court’s grant of the State’s motion to dismiss. Conklin asserts
there is a private cause of action for a violation of the Iowa Constitution, and the
court erred in concluding the Iowa Tort Claims Act (ICTA) did not provide an
avenue for relief. He further claims the court improperly found the State, as well
as the individual actors, were entitled to immunity.
We decline to judicially imply a remedy for a violation of the Iowa
Constitution. Therefore, Conklin cannot bring a private cause of action against
the State for alleged violations of the Iowa Constitution. Furthermore, the ICTA
does not provide an avenue for relief with regard to his claims. For these
reasons we need not address the issue of the State’s immunity, and we affirm
the district court’s order granting the State’s motion to dismiss.
I. Factual and Procedural Background
This matter is an appeal from the district court’s dismissal of Conklin’s civil
suit against the State of Iowa, which alleged various constitutional violations.
The suit stems from a warrant for Conklin’s arrest, issued during the child-in-
need-of-assistance (CINA) proceedings and the termination of Conklin’s parental
rights to his four sons.
The children—four boys1—first came to the attention of the Iowa
Department of Human services on June 28, 2010. The State petitioned for an ex
parte removal order alleging the children should be removed from the mother’s
1
A.C., Conklin’s daughter, lives with Conklin in Nebraska. She was never removed
from his care and was not the subject of a termination proceeding. As of the date of the
petition at issue in the present suit, A.C. remained in his custody.
3
care; however, the children were located at the father’s residence in Nebraska.
They were removed and placed in foster care in Iowa. They were adjudicated
children in need of assistance pursuant to an Iowa juvenile court order filed
August 4, 2010.
On October 18, 2010, the State issued an arrest warrant for Conklin,
alleging a misdemeanor tampering-with-witness charge relating to a witness in
the children’s CINA proceedings. The warrant provided “No Bail until seen by
Magistrate.” Conklin made several attempts to resolve the bail issue but did not
do so until January 9, 2012, one day prior to the termination hearing. On that
date, the children’s mother picked Conklin up from a bus station in Sioux City,
Iowa, and drove him to the Cherokee County jail where he turned himself in. He
was released the same day, and the outstanding warrant was resolved. Because
of his efforts to resist the warrant and not enter Iowa, Conklin had no physical
contact with the children between October 18, 2010, and January 2012.
In an order filed March 27, 2012, the juvenile court terminated Conklin’s
parental rights to his four sons; with respect to Conklin, it ordered termination
pursuant to Iowa Code section 232.116(1)(e) (2011), given he had not
maintained consistent and meaningful contact with the children. The termination
order was affirmed by our court, which agreed with the juvenile court that Conklin
had not shown reasons that would excuse his absence from the children’s lives.
See In re G.C., No. 12-0709, 2012 WL 3590182, at *2 (Iowa Ct. App. Aug 22,
4
2012).2
Conklin filed the petition now at issue on December 17, 2013, alleging
that, due to the State’s actions in issuing a no-bail warrant during the pendency
of the CINA proceeding, Conklin’s parental rights were interfered with, then
subsequently terminated. The petition stated:
This is an action brought under the Constitution of the State
of Iowa and the United States Constitution challenging the
Defendant’s violation of the Plaintiffs’ constitutional rights.
....
Jurisdiction of the Court is invoked pursuant to Iowa Code
Section 669.4.
The caption named the State of Iowa as the defendant, and alleged the following
claims: (1) violation of the right to bail and access to surety, as guaranteed by
article I, section 12 of the Iowa Constitution; (2) violation of the right to be free
from excessive bail, as guaranteed by article I, section 17 of the Iowa
Constitution and the Eighth Amendment to the United States Constitution;
2
The mother’s parental rights were also terminated, and we affirmed on her appeal.
With respect to Conklin, our court noted:
The father did not participate in any reunification services despite
the State providing him the opportunity and encouraging him to do so.
After sixteen months of no personal contact, the first time the father saw
his children face-to-face was after the first day of termination
proceedings. The father provided no financial support to the children
other than providing the mother with a couple of gift cards. The father
did, however, have regular, brief phone contact with the children . . . .
The father contends the State denied him a fair opportunity to
resume care of his children because he had a “no-bond” warrant for his
arrest in Iowa . . . . On January 9, 2012, one day prior to the termination
proceeding, the father turned himself in and was released the same day.
The juvenile court found the father offered no satisfactory reason
as to why he did not resolve the no-bond warrant issue earlier. We
agree. The no-bond warrant did not relieve the father of his parental
responsibilities nor is the challenge to the constitutionality of such
warrants properly before this court. The father’s acts led to the October
2010 arrest warrant. The father failed to resolve the issue from October
2010 to January 2012.
In re G.C., 2012 WL 3590182, at *2 (internal citation omitted).
5
(3) violation of the right of the natural parent to the care, custody, and
management of children and the right to liberty—with respect to Conklin
Conklin—and the right to familial association—as to A.C.—as guaranteed by
article I, section 1 of the Iowa Constitution and the Fourteenth and Ninth
Amendments to the United States Constitution; and (4) violation of the right to be
free from unreasonable seizure, with respect to Conklin, as guaranteed by article
I, section 8 of the Iowa Constitution and the Fourth Amendment to the United
States Constitution.
On January 21, 2014, the State filed a motion to dismiss, arguing there
was no private cause of action for a violation of either the Federal or the Iowa
Constitution. It claimed the Iowa Constitution itself prohibited a private cause of
action against the State in the absence of enabling legislation, and furthermore,
no legislation had been enacted that would allow such a suit. Thus, the proper
avenue to plead Conklin’s claims was to assert a cause of action under 42 United
States Code section 1983 (2013). It also argued that, in the alternative, the State
is entitled to either absolute judicial or absolute quasi-judicial immunity. On
appeal, the State further asserts that the ITCA does not operate to waive the
immunity.
A hearing was held on March 3, 2014. On April 15, 2014, the district court
issued an order granting the State’s motion to dismiss. Specifically, it agreed
with the State that the ITCA did not waive the State’s immunity. Because
Conklin’s claims were based on the issuance of the arrest warrant and the
subsequent prevention of Conklin’s ability to see his children, the court
concluded no individual could issue or enforce a warrant and therefore no private
6
individual could be sued for a violation of the constitution, unless acting under
color of law. Thus, under the requirements of the ITCA, the State could not be
sued civilly. The court also concluded the State (and its employees) enjoyed
absolute and quasi-judicial immunity for its actions in issuing and enforcing the
arrest warrant. Based on these findings, the court concluded no claims could be
brought against the State for an asserted violation of the Iowa Constitution.3
Conklin appeals.
II. Standard of Review
We review the district court’s ruling on a motion to dismiss for correction of
errors at law. Mueller v. Wellmark, Inc., 818 N.W.2d 244, 253 (Iowa 2012). To
the extent we are reviewing constitutional claims, our review is de novo. State v.
Kurth, 813 N.W.2d 270, 272 (Iowa 2012).
III. Private Cause of Action for Violations of the Iowa Constitution
Whether a private cause of action exists for the State’s alleged violation of
the Iowa Constitution is a matter of first impression for our court.4 We further
note this would need to be a judicially implied remedy, given both parties agree
there has been no legislation creating a private cause of action.
3
Though Conklin asserted his rights under the United States Constitution had been
previously violated, his claims were pled under the ITCA, and he did not plead any
Federally-based causes of action. Moreover, the State’s motion to dismiss and the
district court’s ruling did not address Conklin’s Federal Claims nor has Conklin advanced
any arguments under the Federal Constitution. Consequently, we will not address
Conklin’s Federal Claims.
4
Conklin relies on a decision from the Northern District of Iowa that predicted the Iowa
Supreme Court would conclude that a private cause of action for a violation of the Iowa
Constitution existed. See McCabe v. Macaulay, No. 05-CV-73, 2007 WL 2903191, at *2
(N.D. Iowa Oct. 1, 2007). However, a federal district court decision is not binding
authority on our court. See generally State v. Short, 851 N.W.2d 474, 481 (Iowa 2012).
7
When there is no express cause of action set forth in a statute, to judicially
imply such a cause of action, the court must inquire whether: (1) the plaintiff is a
member of the class for whose benefit the statute was enacted; (2) legislative
intent, either explicit or implicit, exists to create or deny the remedy; (3) the cause
of action is consistent with the underlying purpose of the statute; and (4) the
private cause of action would intrude into an area over which the federal or state
government holds exclusive jurisdiction. Meinders v. Duncan Cmty. Sch. Dist.,
645 N.W.2d 632, 635 (Iowa 2002). Though the Iowa Constitution is not a statute,
we nonetheless find these factors persuasive when analyzing whether a private
cause of action exists for a violation of our state constitution.
Article XII, section 1 of the Iowa Constitution states in part: “The general
assembly shall pass all laws necessary to carry this constitution into effect.”
Implicit in this phrasing is that the constitution itself does not create a cause of
action for a violation of its terms; rather, the legislature must pass laws in order
for a remedy to exist. Consequently, the intent of our constitution is to rely on a
legislative remedy rather than an implied judicial remedy for the existence of a
private cause of action. Notably, no legislation has been passed providing for
such a remedy. Therefore, the text of the constitution itself counsels that we
should decline to judicially imply the existence of a private cause of action. See
Meinders, 645 N.W.2d at 635–36 (holding no private cause of action existed for a
violation of Iowa Code chapter 279 (2001) due to the fact the statute itself did not
create a remedy, and therefore, the legislature did not intend to create a private
cause of action for a violation of its mandates).
8
Several of our sister states, whose constitutions have similar language to
that found in article XII, have also declined to imply a private cause of action for a
violation of their state constitutions. See Lewis v. State, 629 N.W.2d 868, 870
(Mich. 2001) (holding the court could not create a judicial remedy for the violation
of the Michigan Constitution because to do so would violate the separation-of-
powers doctrine, given its constitution granted the legislature the power to enact
laws putting the constitutional provisions into effect); Bandoni v. State, 715 A.2d
580, 595 (R.I. 1998) (relying on a provision in the Rhode Island Constitution very
similar to article XII, and concluding, “we are of the opinion that the creation of a
remedy in the circumstances presented by this case should be left to the body
charged by our Constitution with this responsibility”); Shields v. Gerhart, 658 A.2d
924, 930–33 (Vt. 1995) (holding the plaintiff could not bring a private cause of
action seeking money damages for a violation of the Vermont Constitution).5
5
Conklin cites several cases from other states that have allowed a private cause of
action for a violation of various provisions of their state constitutions. See Binette v.
Sabo, 710 A.2d 688, 690–700 (Conn. 1998) (holding a private cause of action existed for
the state’s violation of the constitution’s search-and-seizure provision); Peper v.
Princeton Univ. Bd. of Trs., 389 A.2d 465, 477 (N.J. 1978) (adopting the holding of
Bivens, thereby judicially implying a cause of action for a violation of the state
constitution’s equal protection clause); Bott v. DeLand, 922 P.2d 732, 737–39 (Utah
1994) (holding a private cause of action could be brought for a violation of the
unnecessary-rigor clause in the Utah Constitution). However, we decline to consider
these cases persuasive authority, particularly given the fact that, in more recent years,
several of these states have refrained from expanding these holdings when considering
whether to recognize a cause of action for a violation of various other state constitutional
provisions. See generally Martin v. Brady, 780 A.2d 961, 966 (Conn. App. Ct. 2001)
(holding the officers’ conduct was not sufficiently egregious to warrant the availability of
a private cause of action for a violation of the Connecticut Constitution, thereby
narrowing the availability of the remedy); Spackman v. Bd. of Educ. of Box Elder Cnty.
Sch. Dist., 16 P.3d 533, 537 (Utah 2000) (abrogating Bott, 922 P.2d at 737–39, and
holding no private cause of action could be brought for a violation of the state
constitution without the existence of a self-executing clause, but even then, a “self-
executing constitutional provision does not necessarily give rise to a damages suit”).
Nor do we agree, as counsel asserted in oral argument, that the Iowa Supreme Court
has already judicially implied a remedy for a violation of the Iowa Constitution as against
9
We find the reasoning set forth in these opinions persuasive, particularly
the separation-of-powers analysis. Specifically, we agree with the conclusion
that, given the express language in article XII, which grants the legislature the
power to enact laws to carry the constitutional provisions into effect, it would
create a significant separation-of-powers issue were we to judicially imply a
remedy in the absence of a statute. See Klouda v. Sixth Judicial Dist. Dep’t of
Corr. Serv., 642 N.W.2d 255, 260 (Iowa 2002) (noting: “The separation-of-
powers doctrine is violated ‘if one branch of government purports to use powers
that are clearly forbidden, or attempts to use powers granted by the constitution
to another branch.’” (internal citation omitted)). Clearly, when the constitution
explicitly states that it is within the province of the legislature to establish
remedies, were we to judicially create a cause of action, it would violate the
separation-of-powers doctrine—we would be exercising “powers granted by the
constitution to another branch.” See id.
Nonetheless, Conklin urges us to imply a private cause of action, relying
on Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971). In Bivens, the Supreme Court held that a federal cause of
action under the Fourth Amendment existed, with damages recoverable against
the federal agents upon proof that the violation occurred. 403 U.S. at 395–96. In
doing so, it noted: “The present case involves no special factors counseling
hesitation [in creating a private cause of action] in the absence of affirmative
the State. See Girard v. Anderson, 257 N.W. 400, 402 (Iowa 1938) (holding there is a
private cause of action available against a private individual based on the defendant’s
unlawful entering of the plaintiff’s home and seizure of the plaintiff’s property, and further
noting the protection of the home is a tenet of the Iowa Constitution).
10
action by Congress.” Id. at 396. However, we note that at the time of this
decision, 42 United States Code section 1983 already existed, and therefore a
private cause of action—when a person acting under color of state law violated
an individual’s federal constitutional rights—had already been established. See
42 U.S.C. § 1983. Thus, as the Pennsylvania court noted, the Court simply:
[E]xpanded the remedy available under Section 1983 to address
the wrong done by the federal officers. With that approach, the
Bivens Court required the cause of action to meet the statutory
requirements of Section 1983. It provided this cause of action only
because there was no other adequate federal legislative or
administrative remedy, and there were “no special factors
counseling hesitation in the absence of affirmative action by
Congress.” Bivens, 403 U.S. at 396.
Jones v. City of Philadelphia, 890 A.2d 1188, 1210 (Pa. 2006).
Moreover, recent case law has indicated the Supreme Court is moving
away from the holding in Bivens, that is, it is declining to imply remedies for
constitutional violations in the absence of a statute. See Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 66–72 (2001) (noting the extensive case law refusing to
extend Bivens, and further stating: “In 30 years of Bivens jurisprudence we have
extended its holding only twice”; therefore, the Court declined to authorize a civil
suit against private individuals acting under color of federal law for violating the
Federal Constitution); Schweiker v. Chilicky, 487 U.S. 412, 420–22 (1988)
(holding there was no private cause of action for the Social Security
Administration’s violation of the plaintiff’s due process rights); Bush v. Lucas, 462
U.S. 367, 389–90 (1983) (declining to extend Bivens to recognize a private cause
of action for a violation of the plaintiff’s First Amendment rights, absent
Congressional legislation authorizing such a remedy). Therefore, recent case
11
law counsels against a reliance on Bivens to imply a private cause of action for a
violation of the Iowa Constitution.
This conclusion is further supported by the fact that Conklin can properly
bring his claims as a section 1983 action. When a private actor, operating under
color of state law, violates the Federal Constitution, the plaintiff may bring a civil
suit against them. 42 U.S.C. § 1983; see also Dickerson v. Mertz, 547 N.W.2d
208, 214 (Iowa 1996). Conklin pled all but one of his claims alleging violations of
the United States Constitution as well as the Iowa Constitution, a pleading that
could viably establish a section 1983 action. See generally Dickerson, 547
N.W.2d at 214 (noting the elements the plaintiff must establish to succeed on a
1983 cause of action). Thus, there is already an avenue of relief under which
Conklin may bring his claims, which is another “special factor counseling
hesitation” when considering whether to imply a cause of action for a violation of
the Iowa Constitution. See Bivens, 403 U.S. at 396.
In summation, the Iowa Constitution itself counsels against judicially
implying a remedy for a violation of its terms. See Iowa Const. art. XII, § 1.
Several of our sister states with similar constitutional provisions have declined to
create a cause of action for a violation of their state constitutions, particularly
given the separation-of-powers issue that would arise were the courts to do so.
Furthermore, Bivens and its progeny, as well as the availability of a section 1983
cause of action to Conklin, are also special factors counseling hesitation for
creating such a remedy. For these reasons, we decline to judicially imply a
private cause of action for a violation of the Iowa Constitution.
12
IV. Whether the Claims can be Brought Under the ITCA
Conklin further asserts the ITCA provides an avenue of relief for his
claims. Specifically, he argues the claims are properly brought under Iowa Code
chapter 669 (2013), which operates to waive the State’s immunity as well as
create a remedy.
The ITCA allows a plaintiff to bring a claim against the State praying for
money damages when his loss is “caused by the negligent or wrongful act or
omission of any employee of the state while acting within the scope of the
employee’s office or employment, under circumstances where the state, if a
private person, would be liable.” Iowa Code § 669.2(3)(a); see also Magers-
Fionof v. State, 555 N.W.2d 672, 674 (Iowa 1996). However: “The act does not
itself create a cause of action. It merely recognizes and provides a remedy for a
cause of action already existing which would have otherwise been without
remedy because of the common law immunity.” Sanford v. Manternach, 601
N.W.2d 360, 370 (Iowa 1999).
As concluded above, there is no private cause of action for a violation of
the Iowa Constitution. Thus, because the ITCA only provides a remedy for an
already-established cause of action, the ITCA is inapplicable to the constitutional
claims brought by Conklin. See id. at 370–71 (examining whether there was a
recognized tort for the deprivation of good time conduct, but because there was
no statutory remedy for a violation of Iowa Code chapter 903 (1999), the court
held the plaintiff’s claims could not be brought under the ITCA). Therefore, the
ITCA does not provide an avenue of relief for Conklin’s claims.
13
Because we conclude there is no private cause of action for a violation of
the Iowa Constitution, and the ITCA does not provide an alternate avenue of
relief, we need not address whether the State enjoys immunity from Conklin’s
civil suit. For these reasons, we affirm the district court’s grant of the State’s
motion to dismiss.
AFFIRMED.