Iowa Beta Chapter Of Phi Delta Theta Fraternity Vs. State Of Iowa, University Of Iowa, And Phillip E. Jones

IN THE SUPREME COURT OF IOWA
No. 07–0330

Filed February 20, 2009

IOWA BETA CHAPTER OF
PHI DELTA THETA FRATERNITY,

Appellee,

vs.

STATE OF IOWA, UNIVERSITY OF IOWA,
and PHILLIP E. JONES,

Appellants.

Appeal from the Iowa District Court for Johnson County,

Mitchell E. Turner, Judge.

The defendants appeal a decision finding them liable for damages

under Iowa Code section 808B.8 (2001). AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

Thomas J. Miller, Attorney General, and George A. Carroll,
Assistant Attorney General, for appellants.

John M. Maher of Maher & Dolan Law Firm, P.L.C., Cedar Rapids,

and James W. Affeldt of Elderkin & Pirnie, P.L.C., Cedar Rapids, for

appellee.
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WIGGINS, Justice.

The district court entered judgment in favor of the Iowa Beta

Chapter of Phi Delta Theta Fraternity against the State of Iowa, the

University of Iowa, and one of its employees, Phillip E. Jones, the vice

president for student services and the dean of students. The fraternity

based its claim on the defendants’ use of an intercepted electronic

communication in violation of Iowa Code section 808B.8 (2001). Because

the fraternity is the real party in interest, has standing to bring this

action, and substantial evidence supports the district court’s finding of

liability, we affirm the court’s finding of liability. However, because we

disagree with the court’s findings on punitive and actual damages, we

remand the case to the district court to enter judgment in this matter

consistent with this opinion.

I. Background Facts and Proceedings.

When viewed in a light most favorable to the fraternity, the record

supports the following facts. In the fall of 2000, Elmer Vejar became a

pledged prospective member of the fraternity. However, because Vejar

was unable to obtain the minimum grade point average set by the

fraternity, the fraternity did not accept him as a member. The fraternity

rented rooms in the fraternity house to nonmembers during the summer

for income. The renters did not have access to the chapter meeting

rooms, but did have access to other common areas of the house such as

the kitchen, dining room, living room, and television room. All renters

had to move out of the house prior to “work week,” which is the week

before rush activities commenced. Vejar rented a room as a nonmember

in the summer of 2001.

The fraternity’s meetings were confidential and held in a

subbasement meeting room of the fraternity house. The fraternity
 3

stationed wardens at the meeting room door to exclude nonmembers

from entering or disturbing fraternity meetings. Because Vejar was no

longer a pledge or a member, the fraternity did not allow him to attend

meetings or other fraternity events, and he could not enter the private

meeting rooms of the fraternity house.

In early October of 2001, Vejar made an oral complaint to Jones

alleging the fraternity violated hazing and alcohol policies. Jones

explained to Vejar he would not investigate until Vejar filed a formal,

signed complaint and provided evidence to support the charges. Six or

seven weeks later, Vejar filed a formal complaint and submitted a six-

page statement and a two-and-a-half hour tape recording of an alleged

hazing session. Vejar obtained the recording by concealing an audio-

recording device in the chapter’s meeting room located in the

subbasement of the fraternity house. Later, he retrieved the recording

device.

The recording consisted of a digital tape recording of an alleged

hazing incident that occurred on August 11, 2001. The alleged hazing

incident took place in the subbasement of the fraternity house. The

alleged hazing consisted of a military-style lineup in which active

members were addressed as “hell masters” and pledges were being

trained. The associate dean of students, Thomas Baker, confirmed the

communication was recorded at the fraternity house and members of the

fraternity were doing the alleged hazing.

On November 19 Jones sent a letter to Steven Snyder, a fraternity

chapter advisor, notifying him of the formal complaint against the

fraternity, the impending investigation of the complaint, and requesting a

meeting between the two of them. The letter alleged the fraternity

violated the university’s hazing and alcohol policies. On December 4
 4

Mark Dagitz, the local fraternity province president and representative of

the national fraternity organization of Phi Delta Theta, sent a letter to the

current chapter president, placing the fraternity on “province probation”

because it had violated the national fraternity’s “risk management and

alcohol-free housing policies.” On December 12 Jones sent a letter to

Dagitz explaining he reviewed a copy of the letter Dagitz sent to the

chapter president and believed it to be an acknowledgement that a

hazing and alcohol violation took place in the fraternity. Jones

recommended settling the matter by the university giving Phi Delta Theta

a one-year suspension of university recognition with the possibility of

reinstatement after the year if the fraternity met several conditions as set

forth by the university. The vice president also informed Dagitz that the

fraternity could appeal his decision to the president of the university.

After correspondence between Dagitz and Jones, on January 11, 2002,

Jones sent a letter to Dagitz revoking the fraternity’s recognition by the

university for a period of at least one year, effective immediately. Jones

cited the tape recording as evidence of the hazing.

The fraternity acknowledged the alcohol violations, but contested

the hazing violation. In February counsel for the fraternity sent a letter

to Jones informing him of the fraternity’s intent to appeal his decision

and request an evidentiary hearing. By August no hearing had been set.

Negotiations between the fraternity and the university commenced, but

ended when the fraternity refused to admit it engaged in hazing. A

formal hearing was then scheduled.

An administrative hearing officer presided over a hearing on

August 27, 2003. At the hearing, the president of the fraternity entered

a plea of guilty to the charge that the fraternity served alcoholic

beverages to the pledges at the chapter house in September of 2001, but
 5

a plea of not guilty to the hazing charge. The tape recording was

submitted as evidence by the university. Baker testified to the contents

of the tape recording and stated that he believed the contents of the tape

recording were authentic. Baker also testified he thought the activities

heard in the recording were within the definition of hazing set forth in

both the internal policies of the fraternity and the Interfraternity Council

of the University of Iowa Constitution. Baker further testified he found

the contents of the tape recording to be compelling evidence that hazing

occurred, and that he initiated an investigation as a result of the tape’s

contents. When asked on cross-examination what he thought about

Vejar’s credibility, Baker testified it was irrelevant because he relied on

the contents of the tape recording and not the statements of Vejar.

Jones also testified Vejar’s credibility was irrelevant because he believed

the tape recording was authentic and stood on its own.

The hearing officer issued his decision on September 11. He found

the tape recording to be authentic, and found Vejar’s credibility

irrelevant. The officer noted he based his decision on the evidence

presented, and not on the allegations of Vejar. The officer continued the

university’s de-recognition of the fraternity.

On September 12, an attorney for the fraternity sent a fax to the

hearing officer containing a copy of Iowa Code section 808B.7 regarding

the interception and use of a recorded communication as evidence. He

also sent a copy to an attorney for the university.

On November 21, Jones sent a letter to the fraternity informing

them the university was dropping the hazing charges and imposing

sanctions only for the alcohol violation admitted by the fraternity. The

sanction imposed for the alcohol violation was a continued revocation of

the fraternity’s university recognition of its charter for an indefinite
 6

period to be reinstated at the university’s discretion. This revocation

continued the temporary revocation that had been imposed pending the

outcome of the administrative proceedings.

The fraternity appealed the sanction for the alcohol violation, and

David Skorton, the president of the university, heard the appeal. The

president issued an opinion on June 29, 2004, finding the passage of

time during which the case was pending in the appeal process had been

of sufficient duration for an appropriate sanction. The president

reiterated and explained the conditions originally set by the vice

president that the fraternity needed to meet before it would be re-

recognized by the university.

On February 4, 2005, the Phi Delta Theta House Association and

the fraternity filed suit against the State, the university, Jones, Baker,

Maria Lukas, and David Bergeon. The fraternity alleged the defendants

used the audiotape provided by Vejar in violation of Iowa Code section

808B. Baker, Lukas, and Bergeon were later dismissed as defendants on

a motion for summary judgment.

After a bench trial, the district court dismissed the house

association’s claims. It found in favor of the fraternity and against the

State, the university, and Jones. The court held the State, the

university, and Jones violated chapter 808B. It further held that they

used the unauthorized tape within the meaning of the statute

continuously from November 19, 2001, until July 29, 2004, when

Skorton issued his decision. The court utilized the liquidated damages

provision of Iowa Code section 808B.8(2) and awarded the fraternity

$100 per day from November 19, 2001, to July 29, 2004, (983 days) for a

total of $98,300 against the defendants jointly and severally. The court

also awarded punitive damages against Jones individually in the
 7

amount of $5000. The court granted attorney fees to the fraternity

against the defendants, jointly and severally, for $24,444.18. These fees

represented the fees the fraternity incurred during the administrative

hearing proceeding. The court granted the fraternity an additional

amount for attorney fees of $37,216.25 against the defendants jointly

and severally. These fees were for the fraternity’s prosecution of the case

in the district court. The State, the university, and Jones appeal. We

will set out additional facts as they relate to the issues raised in this

appeal.

II. Issues.

All three of the defendants raise the following issues on appeal:

(1) whether the fraternity had standing to bring the action; (2) whether

the fraternity was a protected party under section 808B.8; (3) whether

substantial evidence supported the finding that the intercepted

communication was an “oral communication” protected by the statute;

(4) whether substantial evidence supported a finding that defendants’

conduct was willful as that term is used in the statute; (5) whether the

defendants used the intercepted communication in violation of the

statute; and (6) whether the district court properly calculated the

compensatory damages and attorney fees.

In addition, Jones raises the following two issues on appeal:

(1) whether he can be held personally liable for his actions; and

(2) whether the fraternity is entitled to punitive damages for his actions.

III. Scope of Review.

Because the case was tried at law, our review is for correction of

errors at law. Iowa R. App. P. 6.4. We review the district court’s decision

to dismiss a case based on lack of standing for errors at law. Godfrey v.

State, 752 N.W.2d 413, 417 (Iowa 2008). The district court findings have
 8

the effect of a special verdict. Iowa R. App. P. 6.4. The district court’s

findings of fact are binding on us if supported by substantial evidence.

Iowa R. App. P. 6.14(6)(a).

When a party challenges a district court’s ruling claiming

substantial evidence does not support the decision, we must view the

evidence in the light most favorable to support the judgment and liberally

construe the court’s findings to uphold, rather than defeat, the result

reached. State v. Dohlman, 725 N.W.2d 428, 430 (Iowa 2006). We will

not find the evidence insubstantial merely because we may draw a

different conclusion from it. Raper v. State, 688 N.W.2d 29, 36 (Iowa

2004). The ultimate question is whether the evidence supports the

court’s finding, not whether the evidence would support a different

finding. Id. On the other hand, the district court’s conclusions of law

and its application of its legal conclusions are not binding on appeal. Id.

IV. Applicable Statutes.

Our resolution of the issues is controlled by the following statutes.

Section 808B.8 of the Iowa Code provides in relevant part:
1. A person whose wire, oral, or electronic
communication is intercepted, disclosed, or used in violation
of this chapter shall:

a. Have a civil cause of action against any person who
intercepts, discloses, or uses or procures any other person to
intercept, disclose, or use such communications.

b. Be entitled to recover from any such person all of
the following:

(1) Actual damages, but not less than liquidated
damages computed at the rate of one hundred dollars a day
for each day of violation, or one thousand dollars, whichever
is higher.

(2) Punitive damages upon a finding of a willful,
malicious, or reckless violation of this chapter.
 9
(3) A reasonable attorney’s fee and other litigation
costs reasonably incurred.

Iowa Code § 808B.8(1).

An “ ‘[o]ral communication’ means an oral communication uttered

by a person exhibiting an expectation that the communication is not

subject to interception, under circumstances justifying that expectation.”

Id. § 808B.1(8).

The legislature put the unlawful acts of chapter 808B in section

808B.2. The legislature made these acts class “D” felonies. Id.

§ 808B.2(1). A person violates chapter 808B when that person

[w]illfully uses, or endeavors to use, the contents of a wire,
oral, or electronic communication, knowing or having reason
to know that the information was obtained through the
interception of a wire, oral, or electronic communication in
violation of this subsection.

Id. § 808B.2(1)(d).

V. Analysis.
A. Whether the Fraternity Had Standing to Bring This Action.

In order to have standing, the plaintiff must have a specific personal or

legal interest and must be injured in fact. Godfrey, 752 N.W.2d at 418–

19. The defendants claim the fraternity did not have standing to bring
this action because the Iowa Beta Chapter of the fraternity was not in

existence at the time of trial.

The defendants are not making a standing argument, but rather a

real-party-in-interest argument. We recently explained the difference

between standing and the real party in interest. Pillsbury Co. v. Wells

Dairy, Inc., 752 N.W.2d 430, 434–35 (Iowa 2008). Standing requires that

a party have a legal interest in the litigation and be injuriously affected.

Id.
 10

The real party in interest is the true owner of the right sought to be

enforced. Id. at 435. The defendants’ claim that the fraternity was not in

existence at the time of litigation is analogous to a natural person dying

before the conclusion of the lawsuit. When a person dies before the

conclusion of the litigation, the person’s estate is the real party in

interest. In re Estate of Voss, 553 N.W.2d 878, 881–82 (Iowa 1996).

The district court found, and we agree, the fraternity was still in

existence at the time of the litigation. Iowa Code section 4.1(20) defines

“person” as an “association.” Unincorporated associations can maintain

an action in the name of the association. Keller & Bennett v. Tracy, 11

Iowa 530, 531 (1861). An association is “a collection of persons who

have united or joined together for some special purpose or business, and

who are called, for convenience, by a common name.” 7 C.J.S.

Associations § 1, at 25 (2004). Courts can consider a fraternity as an

association for purposes of litigation. See, e.g., Garofalo v. Lamda Chi

Alpha Fraternity, 616 N.W.2d 647, 657–58 (Iowa 2000) (Lavorato, J.,

concurring in part) (stating a fraternity is an association for purposes of

the action). An association can sue in its own name, or on behalf of its

members. Carson v. Pierce, 719 F.2d 931, 933 (8th Cir. 1983). The

question raised by the defendants is whether the fraternity was an active

association during the litigation.

On February 4, 2005, the fraternity brought this suit in the name

of the association, not in the name of any of its members. On

February 2, 2006, the national headquarters informed the fraternity that

its charter was suspended. The national organization expressed its

regrets for taking such a serious action, but explained that it “felt the

best way to ensure a bright future on the University of Iowa campus is to

suspend operations until a time can be determined to return.”
 11

(Emphasis added.) Immediately prior to losing its charter the fraternity

still had between thirteen and seventeen members living in the house,

and approximately ten to fifteen members who did not live in the house.

As of September 6, 2006, the date of the trial, the Iowa Beta Chapter did

not have any student members. The fraternity continues to maintain a

checking account, however, and files its tax returns every year.

Even though the national headquarters suspended the Iowa Beta

Chapter’s charter during the pendency of the litigation, there were still

members of the association at the time the suit was concluded. Once a

member graduates from the university, that person is an alumni

member. Thus, that person’s membership extends beyond the years of

undergraduate education and that person remains part of the

association known as the Iowa Beta Chapter of Phi Delta Theta.

Moreover, both the national headquarters in its letter to the chapter, and

the housing association representative, Steve Snyder, indicate an effort

on behalf of the fraternity to regain its charter at the University of Iowa,

creating the potential for the association to return to active status. While

there were no student members at the time, there were certainly alumni

members of the fraternity, including students who were members when

the chapter lost its charter in the middle of their active membership.

Thus, the fraternity is the real party in interest to bring this action.

B. Whether the Fraternity Is a Protected Party Under Section

808B.8. The defendants argue the fraternity is not a protected party

under section 808B.8; therefore, it did not have standing under chapter

808B to maintain this action. The defendants rely on Smoot v. United

Transportation Union, 246 F.3d 633 (6th Cir. 2001), claiming the

fraternity did not have standing because the intercepted communications

belonged to unidentifiable individuals, not to the fraternity.
 12

To find standing under the federal act, the Smoot court looked for

evidence in the record that the intercepted communication related to the

organization’s business. Smoot, 246 F.3d at 640. If the intercepted

communication related to the organization’s business, the organization

had an identifiable injury giving it standing to maintain the action. Id.

The gist of the defendants’ argument is that there was no evidence the

intercepted conversation related to fraternity business.

The University of Iowa Policies & Regulations affecting Students

2001–2002 states in section III, paragraph 8 that
the vice president . . . may revoke a student organization’s
recognition . . . if . . . (b) a member of the organization
violates University regulations at an event sponsored by the
organization or in the course of the organization’s affairs and
the organization failed to exercise reasonable preventive
measures.
The defendants relied on this provision to discipline the fraternity for

hazing by indefinitely revoking the university’s recognition of the

fraternity.

The defendants used the intercepted communication as though it

belonged to the fraternity. The associate dean identified the speakers as

members of the fraternity and the defendants disciplined the entire

fraternity because of the communication. Because the defendants held

the entire fraternity responsible for the actions of the individuals whose

communications they heard on the tape, it is clear the defendants

treated the entire fraternity as though it had an ownership interest in the

intercepted communication and was responsible for the events recorded

on the tape. Therefore, under the test in Smoot, the intercepted

conversation related to fraternity business, and the fraternity did have an

identifiable injury under the statute.
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C. Whether Substantial Evidence Supports the Finding That

the Intercepted Communication Was an “Oral Communication”

Protected by the Statute. The Iowa statute defines an oral

communication as “an oral communication uttered by a person

exhibiting an expectation that the communication is not subject to

interception, under circumstances justifying that expectation.” Iowa

Code § 808B.1(8). To decide whether the recording was an oral

communication under chapter 808B, we must construe section

808B.1(8).

The purpose of statutory construction is to determine legislative

intent. Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa

2004). Legislative intent is determined from the words chosen by the

legislature, not by what it should or might have said. State v. Wiederien,

709 N.W.2d 538, 541 (Iowa 2006). Absent a statutory definition or an

established meaning in the law, we give words their ordinary and

common meaning by considering the context within which they are used.

City of Des Moines v. Employment Appeal Bd., 722 N.W.2d 183, 196 (Iowa

2006). When construing a statute, we are required to assess a statute in

its entirety, not just isolated words or phrases. Schadendorf v. Snap-On

Tools Corp., 757 N.W.2d 330, 337 (Iowa 2008). When construing a

statute, we avoid a construction that makes part of a statute redundant

or irrelevant. Id. We try to give a statute a reasonable construction that

best achieves the statute’s purpose and avoids absurd results. Id.

Chapter 808B contains language similar to the language used by

Congress to create a claim for civil damages for an intercepted oral

communication in the Omnibus Crime Control and Safe Streets Act of

1968. Omnibus Crime Control and Safe Streets Act of 1968 § 801, 82

Stat. 211, 211–225 (1968) (current version at 18 U.S.C. §§ 2510–2522).
 14

In 1986, Congress amended the Omnibus Crime Control and Safe Streets

Act of 1968 by enacting the Electronic Communications Privacy Act.

Electronic Communications Privacy Act, 18 U.S.C. §§ 2510–2522. The

Electronic Communications Privacy Act changed the elements required to

be proven by a person seeking civil damages. See Romano v. Terdik, 939

F. Supp. 144, 145–46 (D. Conn. 1996) (explaining the difference between

the elements to be proven in a civil action under the Omnibus Crime

Control and Safe Streets Act of 1968 and the Electronic Communications

Privacy Act). Because Iowa’s act for civil damages is similar to the

Omnibus Crime Control and Safe Streets Act of 1968, we are allowed to

look to the federal law interpreting the 1968 Act before Congress

amended it for guidance in interpreting chapter 808B. See Pecenka v.

Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003) (stating when a

state law is modeled after a federal law, we can look to the federal law for

guidance in interpreting the state law). We are not bound, however, by

the federal law interpretation. Id.

Congress used the same language in defining an “oral

communication” in the Omnibus Crime Control and Safe Streets Act of

1968 as the Iowa legislature used in section 808B.1(8). Compare

Omnibus Crime Control and Safe Streets Act of 1968 § 802, 82 Stat. at

212 (current version at 18 U.S.C. § 2510(2)), with Iowa Code § 808B.1(8).

The legislative history concerning section 2510 and the language defining

an “oral communication” indicate the definition is intended to reflect

existing law on a person’s expectation of privacy as discussed in Katz v.

United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

S. Comm. on Judiciary, Omnibus Crime Control and Safe Streets Act of

1968, S. Rep. No. 90–1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112,

2178 (1968). The expectation of privacy test set forth in Katz normally
 15

consists of two questions: “first . . . whether the individual, by his

conduct, has ‘exhibited an actual (subjective) expectation of privacy’ ”;

and second, “whether the individual’s subjective expectation of privacy is

‘one that society is prepared to recognize as “reasonable.” ’ ” Smith v.

Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220,

227 (1979) (quoting Katz, 389 U.S. at 361, 88 S. Ct. at 516, 19 L. Ed. 2d

at 588 (Harlan, J., concurring)). We believe this expectation of privacy

test is applicable to section 808B.1(8).

Therefore, to determine whether a communication meets this

definition, the fraternity, through the individuals uttering the

communication, must have exhibited a subjective expectation of privacy

and that expectation must be one that society is prepared to recognize as

reasonable. The district court made the factual finding that the

intercepted communication met the statute’s definition of an oral

communication. If substantial evidence supports this finding, we must

affirm the district court’s finding.

Substantial evidence supports the fraternity exhibited a subjective

expectation of privacy in the conversations that Vejar intercepted. First,

the fraternity’s meetings were confidential and held in a subbasement

meeting room of the fraternity house. Second, the fraternity rented

rooms in the fraternity house during the summer for income but the

renters did not have access to the chapter meeting rooms, while they did

have access to other common areas of the house such as the kitchen,

dining room, living room, and television room. Third, the fraternity

stationed wardens at the meeting room door to exclude nonmembers

from hearing what the members discussed in the room. Finally, the only

way Vejar could hear a conversation held in the meeting room was for

Vejar to record it clandestinely.
 16

We also believe substantial evidence supports the fraternity’s

expectation of privacy is one that society is prepared to recognize as

reasonable. This standard is an objective standard and not a subjective

standard. Id. at 740–41, 99 S. Ct. at 2580, 61 L. Ed. 2d at 226–27. To

determine whether society is prepared to recognize an expectation of

privacy as reasonable, it is necessary to “reference to concepts of real or

personal property law or to understandings that are recognized and

permitted by society.” Rakas v. Illinois, 439 U.S. 128, 143 n.12, 99 S. Ct.

421, 430–31 n.12, 58 L. Ed. 2d 387, 401–02 n.12 (1978).

The fraternity is a private, for-members-only association. The

fraternity house is the place where the members live. The room in the

fraternity where Vejar intercepted the oral statements is the place where

the fraternity conducted its private business. Society respects the right

of a private organization to conduct its business in private. See United

States v. Bunkers, 521 F.2d 1217, 1219 (9th Cir. 1975), cert. denied, 423

U.S. 989, 96 S. Ct. 400, 46 L. Ed. 2d 307 (1975); cf. Mancusi v. DeForte,

392 U.S. 364, 368–69, 88 S. Ct. 2120, 2123–24, 20 L. Ed. 2d 1154,

1159–60 (1968) (union official, even though he shared office, was entitled

to expect that records would not be taken from his office without his

permission). Therefore, these facts provide substantial evidence that the

fraternity had an objective expectation of privacy in the communication

that society is prepared to recognize and protect as reasonable.

Accordingly, we affirm the district court finding that the

intercepted communication was an “oral communication” as defined in

section 808B.1(8).

D. Whether Substantial Evidence Supports That the

Defendants’ Conduct Was Willful as Used in the Statute. A civil

action exists when a person uses an oral communication in violation of
 17

chapter 808B. Iowa Code § 808B.8(1)(a). A violation of chapter 808B

occurs when a person willfully uses or endeavors to use, the contents of

the oral communication, and the defendant knew or had reason to know

the information was obtained through the unlawful interception of the

oral communication. Id. § 808B.2(1)(d). An unlawful interception of the

communication occurs when a person willfully intercepts an oral

communication. Id. § 808B.2(1)(a).

The defendants claim for an act to be done willfully, as used in

section 808B.2, the defendants and Vejar must have intentionally

violated or recklessly disregarded a known legal right of the fraternity. At

trial, the district court rejected the defendants’ claim that a willfully done

act means an act done by a person who intentionally violated or

recklessly disregarded a known legal right. The court only required that

the defendants and Vejar acted purposefully. We agree with the district

court’s conclusion that the word “willfully” as used in section 808B.2

means purposefully. We base our conclusion on our construction of

sections 808B.2 and 808B.8.

Courts, including our court, have long struggled to come up with

an all-encompassing definition for the word “willful” when the legislature

uses it in a criminal statute. State v. Azneer, 526 N.W.2d 298, 299 (Iowa

1995). The explanation for this struggle is that no generic term can

accommodate all the various crimes in which the legislature included the

person’s will as an element of the crime. Id.

When Congress adopted the willful standard in the Omnibus Crime

Control and Safe Streets Act of 1968, the legislative history cited to the

case of United States v. Murdock, 290 U.S 389, 54 S. Ct. 223, 78 L. Ed.

381 (1933) for the proposition a violation of the act must be willful to be

criminal. S. Comm. on Judiciary, Omnibus Crime Control and Safe
 18

Streets Act of 1968, S. Rep. No. 90–1097, reprinted in 1968 U.S.C.C.A.N.

at 2181. Murdock is not very helpful to us in determining what the Iowa

legislature meant by willfully in section 808B.2(1)(d). Murdock states one

possible meaning for “willfully” is to denote “an act which is intentional,

or knowing, or voluntary, as distinguished from accidental.” 290 U.S. at

394, 54 S. Ct. at 225, 78 L. Ed. at 385. Another possible meaning of the

term when used in a criminal statute is
an act done with a bad purpose; without justifiable excuse;
stubbornly, obstinately, perversely. The word is also
employed to characterize a thing done without ground for
believing it is lawful, or conduct marked by careless
disregard whether or not one has the right so to act.
Id. at 394–95, 54 S. Ct. at 225, 78 L. Ed. at 385 (citations omitted). The

Supreme Court then stated, to determine the proper meaning the court

must look to the context in which the word is used. Id. at 395, 54 S. Ct.

at 226, 78 L. Ed. at 385.

In 1986, the Electronic Communications Privacy Act amended the

Omnibus Crime Control and Safe Streets Act of 1968, deleting the word

“willfully” from the statute, and requiring that a person had to

intentionally use or endeavor to use the oral communication in order to

violate the Act. 18 U.S.C. § 2511(1)(d). Before this change in the law

became effective, two circuits of the United States Court of Appeals

required the word “willfully” in a civil action under the Omnibus Crime

Control and Safe Streets Act of 1968 “to denote at least a voluntary,

intentional violation of, and perhaps also a reckless disregard of, a

known legal duty,” rather than an act which is intentional, or knowing,

or voluntary, as distinguished from accidental. Citron v. Citron, 722 F.2d

14, 16 (2d Cir. 1983); see Malouche v. JH Mgmt. Co., 839 F.2d 1024,

1026 (4th Cir. 1988).
 19

On the other hand, state courts, using the willful standard in their

interception-of-communications statutes, have reached the opposite

conclusion. Deibler v. State, 776 A.2d 657, 665 (Md. 2001); State v.

O’Brien, 774 A.2d 89, 104 (R.I. 2001). After reviewing the context in

which the legislature used the word “willfully” in their statutes, both

courts determined the proper definition of willfully was only to require

purposeful conduct without a bad motive or a knowing unlawful

component. Deibler, 776 A.2d at 665; O’Brien, 774 A.2d at 104.

In Iowa, our court has said our interpretation of the word

“willfully” as used by the legislature is influenced by its statutory

context. State v. Osborn, 368 N.W.2d 68, 70 (Iowa 1985). Upon our

review of chapter 808B, we are convinced that the legislature meant for

the word “willfully” in section 808B.2 to only require purposeful conduct

without a bad motive or a knowing unlawful component. We base our

conclusion on the legislature’s use of the word “willful” in section

808B.8(1)(b)(2).

Before Congress amended the 1968 Act, a person violated the

federal statute by willfully using, or endeavoring to use the contents of a

wire, oral, or electronic communication. Omnibus Crime Control and

Safe Streets Act of 1968 § 802, 82 Stat. at 213 (current version at 18

U.S.C. § 2511(d)); see Iowa Code § 808B.2. If a violation of the statute

occurred, an aggrieved person was entitled to receive punitive damages

without any further showing. Omnibus Crime Control and Safe Streets

Act of 1968 § 802, 82 Stat. at 223 (current version at 18 U.S.C.

§ 2520(b)(2)). Thus, it made sense that the federal courts would interpret

willfully to require the act to be done with a voluntary, intentional

violation of a known legal duty, because punitive damages are not
 20

normally awarded for a purposeful act done without a bad motive or

knowing unlawful component.

Under the Iowa statute, a mere violation of the statute will not

entitle an aggrieved person to receive punitive damages. In order for a

person to receive punitive damages under the Iowa statute, the finder of

fact must make “a finding of a willful, malicious, or reckless violation of

this chapter.” Iowa Code § 808B.8(1)(b)(2). If we define “willfully” in

section 808B.2 as requiring a bad motive or knowing, unlawful

component, every violation would entitle a person to punitive damages.

Additionally, the “malicious,” or “reckless” language in section

808B.8(1)(b)(2) would be surplus language, because all violations of

section 808B.2 would give rise to punitive damages under the willful

requirement of section 808B.8(1)(b)(2). Therefore, we conclude, in the

context of the statute as passed by the legislature, the word “willfully” in

section 808B.2 only requires purposeful conduct without a bad motive or

knowing, unlawful component.

The requirement that the defendants knew or had reason to know

the information was obtained through the unlawful interception of the

oral communication is derived from section 808B.2(1)(d). The language

of the federal statute before and after the amendment to the 1968 Act is

the same. 18 U.S.C. § 2511(d). The federal courts have consistently

construed this section to require the aggrieved person to prove that the

user of the oral communication had “ ‘sufficient facts concerning the

circumstances of the interception such that the defendant could, with

presumed knowledge of the law, determine that the interception was

prohibited [by the statute].’ ” Williams v. Poulos, 11 F.3d 271, 284 (1st

Cir. 1993) (quoting Thompson v. Dulaney, 970 F.2d 744, 749 (10th Cir.

1992)). We agree with the federal courts’ construction because it is
 21

consistent with our law that persons ordinarily should not escape the

legal consequences of failing to observe statutory requirements by

asserting ignorance of the law. Diehl v. Diehl, 421 N.W.2d 884, 888 (Iowa

1988).

Baker, the associate dean of students, testified the defendants

knew Vejar placed the recording device clandestinely in order to obtain

the recording. Baker also was aware of the fact that the taping of the

oral communications was illegal. Baker and Jones both acknowledged

that they did not care about the legal implications surrounding the use of

the tape as evidence and purposefully used the tape to support the

university’s revocation of the fraternity’s status.

Accordingly, substantial evidence supports that Vejar willfully

intercepted the communication and that the defendants’ conduct was

willful.

E. Whether the Defendants Used the Intercepted

Communication in Violation of the Statute. To be civilly liable under

the Iowa statute a person must use the intercepted oral communication.

Id. § 808B.8(1). The federal act has this same requirement. 18 U.S.C.

§ 2520(a). Neither the state statute nor the federal act defines the word

“use.” When a statute does not define a word and in the absence of an

established meaning in law, courts generally presume the legislature

used words contained in a statute in their ordinary and usual sense with

the meaning commonly attributed to them. Office of Consumer Advocate

v. Iowa Utils. Bd., 744 N.W.2d 640, 643 (Iowa 2008). The dictionary

defines “use” to mean, “to put into action.” Webster’s Third New

International Dictionary 2523 (unabr. ed. 2002). Most federal courts have

used this dictionary definition to require an active rather than a passive

use of the intercepted communication for civil liability to attach under
 22

the federal act. See Peavy v. WFFA-TV, Inc., 221 F.3d 158, 174–75 (5th

Cir. 2000) (finding the use of an intercepted communication as a basis

for initiating an investigative report was a use within the act); Dorris v.

Absher, 179 F.3d 420, 426 (6th Cir. 1999) (deciding that listening to the

communications intercepted by her husband and typing out the

termination notices dictated by him was not a use); Reynolds v. Spears,

93 F.3d 428, 432–33 (8th Cir. 1996) (overhearing a recording made by

another is not a use); Leach v. Bryam, 68 F. Supp. 2d 1072, 1075 (D.

Minn. 1999) (holding a letter from attorney sent to another attorney

containing a veiled threat to use secretly taped phone conversations to

effectuate a settlement of a dispute was a use); Fields v. Atchison,

Topeka, & Santa Fe Ry., 985 F. Supp. 1308, 1313–14 (D. Kan. 1997),

withdrawn in part by Fields v. Atchison, Topeka & Santa Fe Ry., 5 F.

Supp. 2d 1160 (D. Kan. 1998) (concluding that the conduct of listening

did not fall within the definition of use). But see Thompson v. Dulaney,

838 F. Supp. 1535, 1547–48 (D. Utah 1993) (holding mere listening to an

intercepted communication was a use).

We believe mere listening to the intercepted communication is not

a use under the Iowa statute. Rather, a person must actively use the

intercepted communication for civil liability to attach. The district court

required an active use of the tape for liability to attach under the Iowa

statute. Therefore, if substantial evidence supports its finding, we must

affirm on this issue.

The evidence shows the defendants actively used the intercepted

communication to do their investigation, to notify the fraternity of the

charges against them, to attempt to force the fraternity to settle the

dispute by admitting to the charge of hazing, to file a formal complaint

against the fraternity, and to prove the charge of hazing. See Peavy, 221
 23

F.3d at 174–75 (using an intercepted communication as a basis for

initiating an investigative report was a use within the act); Leach, 68 F.

Supp. 2d at 1075 (holding a letter from attorney sent to another attorney

containing a veiled threat to use secretly taped phone conversations to

effectuate a settlement of a dispute was a use). It was only after the

defendants became aware that using the tape in the manner in which

they did violated section 808B.7 that the defendants withdrew the hazing

charge. The finder of fact can infer the withdrawal to be an attempt by

the defendants to discontinue their use under section 808B.7.

Accordingly, substantial evidence supports the district court’s

finding that the defendants used the tape in violation of section 808B.8.

F. Whether Jones Can Be Held Personally Liable for His

Actions. The trial of this matter ended on September 7, 2006. At the

conclusion of the trial, the parties decided not to orally argue the case to

the court. Instead, the parties agreed they would submit written post-

trial briefs and arguments. The court agreed and required the parties to

simultaneously submit their briefs and arguments by the close of

business on September 18. The court also held the record open for

submission of the attorney fee issue.

For the first time in his post-trial brief and argument, Jones raised

the issue that he had no personal liability under section 669.5. The

relevant part of this statute provides:
Upon certification by the attorney general that a
defendant in a suit was an employee of the state acting
within the scope of the employee’s office or employment at
the time of the incident upon which the claim is based, the
suit commenced upon the claim shall be deemed to be an
action against the state under the provisions of this chapter,
and if the state is not already a defendant, the state shall be
substituted as the defendant in place of the employee.
 24

Iowa Code § 669.5(2)(a).1 The legislature added this section to the Code

during the 2006 legislative session, effective July 1, 2006. 2006 Iowa

Acts ch. 1185, § 107. Phi Delta Theta filed its petition against Jones in

February 2005, prior to the enactment of this section. Prior to the

amendment, the statute allowed an employee to be held personally liable.

Iowa Code § 669.21. In the brief where Jones raised this issue, his

counsel, an assistant attorney general, stated “[t]he Attorney General

certifies Defendant Philip Jones was an employee of the state acting with

the scope of his office and employment at the time of the incidents upon

which the Plaintiffs’ claims are based.”

In its ruling on the merits of this matter the court noted

defendants in their post-trial brief argued for the first time that an

amendment to section 669.5 relieved Jones of personal liability and that

he should be dismissed from the case. There were no responsive

pleadings filed by the fraternity regarding this claim.

The district court addressed this issue and found it could hold

Jones personally liable because the amendment to section 669.5

operated only prospectively, and Jones acknowledged in a previous brief

filed with the court in April of 2006 that the fraternity complied with all

the procedures of chapter 669, the Iowa Tort Claims Act, in pursuing its

claim against Jones. We agree with the district court and find section

669.5, as amended, does not apply retrospectively to this case.2

1This new section was first codified in the 2007 Code of Iowa.

2Jones did not introduce the evidence of the attorney general certification during
trial. Instead he introduced the evidence in his final argument. See State v. Phillips,
226 N.W.2d 16, 19 (Iowa 1975) (holding counsel cannot introduce evidence in a final
argument). Phi Delta Theta did not challenge the manner in which the certification was
submitted to the trial court, and therefore, we consider this evidence on appeal.
 25

Legislative intent determines if a court will apply a statute

retrospectively or prospectively. Emmet County State Bank v. Reutter,

439 N.W.2d 651, 653 (Iowa 1989). Generally, a newly enacted statute is

presumed to apply prospectively, unless expressly made retrospective.

See City of Waterloo v. Bainbridge, 749 N.W.2d 245, 249 (Iowa 2008); see

also Iowa Code § 4.5. However, when the statute relates solely to remedy

or procedure, a court can apply the statute both prospectively and

retrospectively. Bainbridge, 749 N.W.2d at 249. A statute that relates to

a substantive right is ordinarily applied prospectively only. Baldwin v.

City of Waterloo, 372 N.W.2d 486, 491 (Iowa 1985).

The first step in determining if a statute applies retrospectively,

prospectively, or both is to determine whether the legislature expressly

stated its intention. The legislature did not expressly state that Iowa

Code section 669.5 applies retrospectively.

In the absence of a legislative declaration that the statute applies

retrospectively, the second step of the analysis is to determine whether

the statute is procedural, remedial, or substantive. A substantive statute

“creates, defines and regulates rights” whereas a procedural law “ ‘is the

practice, method, procedure, or legal machinery by which the

substantive law is enforced or made effective.’ ” Id. (citations omitted). A

remedial statute intends to correct “existing law or redress an existing

grievance.” Id.

In Moose v. Rich, our court considered the retrospective application

of a statute passed by the legislature immunizing co-employees from

liability for their negligent acts. 253 N.W.2d 565, 571–72 (Iowa 1977).

In Moose, the jury returned a verdict finding that a co-employee’s

negligence caused the plaintiff’s injuries. Id. at 567–68. The negligent

act of the co-employee occurred in 1971. Id. at 567. In 1974, the
 26

legislature passed a new statute immunizing an employee from liability

to co-employees for his or her negligent acts. 1974 Iowa Acts ch. 1111, §

1 (now codified at Iowa Code section 85.20). The new statute, section

85.20, only allowed co-employee liability upon a showing of gross

negligence. Iowa Code § 85.20. The defendant contended the jury could

not find him liable for the plaintiff’s injuries because section 85.20

applied retrospectively. Moose, 253 N.W.2d at 571. We rejected the

defendant’s claim that the court should apply section 85.20

retrospectively. Id. at 572. In doing so, we determined the law was

substantive because it involved the limitations on a right of an employee

to receive compensation from a co-employee. Id. We also held the law

was not remedial because the law did not redress a wrong, but made a

policy decision to limit the redress available to the plaintiff. Id.

Although, we do allow a statute to apply retrospectively when the

statute provides an additional remedy to an already existing remedy or

provides a remedy for an already existing loss, we have refused to apply a

statute retrospectively when the statute eliminates or limits a remedy.

Groesbeck v. Napier, 275 N.W.2d 388, 390–91 (Iowa 1979) (citing Moose,

253 N.W.2d at 572). In the latter situation, we have found the statute to

be substantive rather than procedural or remedial. Id. at 391.

Similarly, in this case, the amendment to section 669.5(2)(a)

limited the right of a person to seek compensation from a state employee

by relieving a state employee from personal liability when the employee is

acting within the scope of his or her employment. At the time of the

commission of the tort, Jones could be held personally liable for his acts.

After the amendment, only the State could be held liable for Jones’ acts.

Thus, this law is a substantive law that “creates, defines and regulates

rights” rather than merely being the practice or method of enforcing
 27

rights or addressing an existing grievance. Therefore, the district court

was correct in holding Jones personally liable for his actions.

G. Whether the Fraternity is Entitled to an Award of Punitive

Damages Against Jones. The district court awarded the fraternity

punitive damages against Jones in the sum of $5000. Jones claims his

conduct does not entitle the fraternity to recover punitive damages

against him.

Section 808B.8(1)(b)(2) allows a court to award “[p]unitive damages

upon a finding of a willful, malicious, or reckless violation of this

chapter.” (Emphasis added.) As previously stated in division V(D) of this

opinion, for civil liability to attach, a person’s conduct only needs to be

purposeful conduct without a bad motive or knowingly unlawful

component. It follows from our discussion in division V(D) that the

legislature intended more than a purposeful violation of the statute

before a court could award punitive damages. Accordingly, to recover

punitive damages under section 808B.8(1)(b)(2), a person must prove “at

least a voluntary, intentional violation of, and perhaps also a reckless

disregard of, a known legal duty.” Citron, 722 F.2d at 16; see Malouche,

839 F.2d at 1026.

The only testimony at the hearing from Jones regarding his

conduct in using the tape is as follows:

Q. Were you aware that the tape that he presented
may have been made illegally? A. I don’t know.

Q. Were you concerned about that? A. No, I wasn’t.

Q. Why were you not? A. Because it was -- I did not
have to consider it within the context of its legality, for
admissible or inadmissible.

Q. Why was that? A. Because I was not in a criminal
court situation.
 28

Although the testimony establishes he used the tape purposefully,

nothing in this exchange establishes or infers that Jones voluntarily,

intentionally, or recklessly violated a known legal duty. Under this

standard, an award of punitive damages is only allowed if the person

knew of the requirements of the act and acted willfully, maliciously, or

reckless in violating the act. The evidence does not establish Jones knew

his use of the tape violated the act.

Up until the time the fraternity made Jones aware of chapter 808B,

the evidence only supports that Jones knew that a clandestinely taped

conversation might not be admissible in a court of law. The fraternity

never established that Jones knew using a clandestinely taped

conversation violated chapter 808B. In fact, when the fraternity

informed Jones that the mere use of the tape violated chapter 808B, the

university dropped the hazing charges and abandoned the use of the

tape.

Consequently as a matter of law, the evidence was insufficient to

award punitive damages and the judgment for punitive damages against

Jones is reversed.

H. Whether the District Court Properly Calculated the

Compensatory Damages and Attorney Fees. Section 808B.8(1)(b)(1)

allows for an award of “[a]ctual damages, but not less than liquidated

damages computed at the rate of one hundred dollars a day for each day

of violation, or one thousand dollars, whichever is higher.” The district

court did not award the fraternity actual damages. It did award the

fraternity liquidated damages in the sum of $100 per day for 983 days for

the period from November 19, 2001, to July 29, 2004. The total

liquidated damage award amounted to $98,300. On appeal, the only

claim the defendants make is that liquidated damages should have
 29

stopped on November 21, 2003, the day the hazing charges were

dismissed.3 The defendants contend November 21 is the day they

stopped using the intercepted communication. The fraternity does not

respond to this argument in its brief.

The defendants dismissed the hazing charge on November 21. We

agree with the defendants that when the hazing charges were dismissed,

the defendants were no longer using the intercepted communication.

Accordingly, the computation of liquidated damages should have stopped

on November 21. Consequently, the district court should have only

awarded liquidated damages for 732 days, for a total amount of $73,200.

The next issue the defendants raise concerns the attorney fees the

court awarded the fraternity for the fees and costs the fraternity had to

expend to fight the administrative action the university instituted to

discipline it for the alleged hazing and alcohol violations. These fees

amounted to $24,444.18.

We have repeatedly stated that, as a general rule in Iowa, the court

cannot award attorney fees in the absence of a statute or contract

authorizing an award of attorney fees. Suss v. Schammel, 375 N.W.2d

252, 256 (Iowa 1985); Harris v. Short, 253 Iowa 1206, 1208–10, 115

N.W.2d 865, 866–67 (1962). Section 808B.8(1)(b)(3) does allow for an

award of a “reasonable attorney’s fee and other litigation costs

reasonably incurred.” This section only allows the fraternity to be

awarded its attorney fees and costs incurred in prosecuting its claim

under section 808B.8 for the defendants’ use of the intercepted

communication. Section 808B.8(1)(b)(3) does not allow for the recovery

of attorney fees incurred in an administrative process, where the issue is

3The defendants have not argued that section 808B.8(1)(b)(1) places a one-

thousand-dollar cap on liquidated damages, so we do not address this issue.
 30

whether the fraternity should be disciplined. At best, the attorney fees

incurred in the administrative process may be recoverable as actual

damages.

Although the fraternity argues these attorney fees are recoverable

as actual damages, the fraternity cannot recover both actual and

liquidated compensatory damages under section 808B.8(1)(b)(1). Section

808B.8(1)(b)(1) only allows for the recovery of the higher of the two

damages. The district court awarded the fraternity liquidated damages

in the sum of $98,300. We upheld the liquidated damage award, but

reduced the award to $73,200. The liquidated damages awarded to the

fraternity are greater than the attorney fees incurred by the fraternity in

the administrative process. Thus, the district court should not have also

awarded the fraternity its actual damages for the attorney fees incurred

in the administrative process. Consequently, we reverse the judgment

for attorney fees and costs for $24,444.18 entered against the

defendants.

Finally, the defendants claim we should reverse the award of

attorney fees and costs incurred by the fraternity in prosecution of this

case in the district court because we should reverse the underlying

judgment. We are only modifying, not reversing the underlying

judgment; therefore, we affirm the award of attorney fees and costs

incurred by the fraternity to prosecute the district court case in the sum

of $37,216.25.

VI. Disposition.

For the reasons stated in this opinion, we reverse the $5000

punitive damage award against Jones and the $24,444.18 award for

attorney fees and costs against all the defendants. We also reduce the

liquidated damage award to $73,200. We otherwise affirm the judgment
 31

of the district court. We remand the case to the district court to enter

judgment in this matter consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

WITH DIRECTIONS.

All justices concur except Baker, J., who takes no part.