Rickie Rilea and Timothy Riley v. Iowa Department of Transportation

IN THE SUPREME COURT OF IOWA
No. 17–1803

Filed October 19, 2018

RICKIE RILEA and TIMOTHY RILEY,

Appellees,

vs.

IOWA DEPARTMENT OF TRANSPORTATION,

Appellant.

Appeal from the Iowa District Court for Polk County, Eliza Ovrom

Judge.

The Iowa Department of Transportation appeals a district court

judgment reversing declaratory orders issued by the department.

AFFIRMED.

Thomas J. Miller, Attorney General, David S. Gorham, Special

Assistant Attorney General, and Robin G. Formaker and Richard E. Mull,
Assistant Attorneys General, for appellant Iowa Department of

Transportation.

Brandon Brown and Gina Messamer of Parrish, Kruidenier, Dunn,

Boles, Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for

appellees Rickie Rilea and Timothy Riley.
 2

MANSFIELD, Justice.

I. Introduction.

This appeal requires us to decide whether, before May 11, 2017,

Iowa Department of Transportation (IDOT) Motor Vehicle Enforcement

(MVE) officers could issue traffic citations unrelated to operating authority,

registration, size, weight, and load. Two motorists were separately cited

by MVE officers in 2016 for speeding in a construction zone. They sought

declaratory orders that MVE officers lacked authority to stop vehicles and

issue these citations. In the declaratory order proceedings, the IDOT

concluded that its officers possessed this authority. However, on petition

for judicial review, the district court found otherwise and reversed.

On appeal, we conclude that MVE officers lacked authority during

the relevant time period to stop vehicles and issue speeding tickets or other

traffic citations that did not relate to operating authority, registration, size,

weight, and load. Neither Iowa Code chapter 321 nor Iowa Code chapter

804, the two fonts of authority cited by the IDOT, provided the necessary

legal grounding for the MVE officers’ actions.

More specifically, Iowa Code section 321.477, at the time, authorized

IDOT peace officers “to make arrests for violations of the motor vehicle

laws relating to . . . operating authority, registration, size, weight, and

load.” Iowa Code § 321.477 (2016). 1 However, it did not provide authority

for arrests relating to other traffic violations. Meanwhile, Iowa Code

section 804.9 empowers a “private person” to make an arrest “[f]or a public

offense committed or attempted in the person’s presence.” Id. § 804.9.

Yet, section 804.9 does not extend to individuals who are not private

persons, and in any event, it does not confer authority on individuals to

1Unless otherwise noted, Code references in this opinion are to the 2016 Iowa
Code.
 3

issue citations in lieu of arrest. Only peace officers may issue citations in

lieu of arrest. See id. § 805.1(1). For these reasons and others discussed

in the body of this opinion, we affirm the judgment of the district court.

II. Facts and Procedural Background.

At approximately 12:30 p.m. on September 12, 2016, Rickie Rilea

was traveling southbound on Interstate 35 in Warren County when he was

stopped by an IDOT MVE officer. Rilea received a citation for going sixty-

six miles per hour in a roadwork zone with a fifty-five miles-per-hour speed

limit. See id. § 321.285.

At approximately 8:30 a.m. on September 27, Timothy Riley was

proceeding on Interstate 35 in Warren County when he was stopped by an

IDOT MVE officer. Riley was cited by the officer for traveling seventy-eight

miles per hour in a fifty-five miles-per-hour roadwork zone. See id.

On March 23, 2017, Rilea and Riley separately sought declaratory

orders from the IDOT determining that the IDOT’s authority was limited to

that set forth in Iowa Code section 321.477 and that the IDOT could not

stop drivers and issue citations for violations unrelated to operating

authority, registration, size, weight, and load. Their petitions for

declaratory orders alleged that between August 19, 2014, and August 19,

2016, MVE employees wrote over 12,840 citations unrelated to operating

authority, registration, size, weight, and load for motorists driving

noncommercial vehicles and that the IDOT maintained an internal policy

whereby MVE officers were directed to stop any motorist observed violating

any Iowa law and issue an appropriate citation. 2 To detect these

violations, MVE employees used state-issued radar detectors. MVE

employees also used official MVE vehicles with overhead flashing lights

2The IDOT disputed that it has such a policy, but Rilea and Riley submitted
exhibits tending to show the existence of such a policy.
 4

and sirens to effectuate these traffic stops. MVE employees did not take

these motorists before a magistrate or deliver them to a peace officer.

During the same time period, MVE employees wrote a lesser number of

citations—9,400—relating to operating authority, registration, size,

weight, and load.

On April 26, the IDOT issued a declaratory order in each proceeding.

The orders recognized the “limiting nature of Iowa Code § 341.477” and

instead relied on section 804.9(1), holding,

[S]o long as an offense is committed or attempted in the
officer’s presence, DOT MVE peace officers while acting in the
performance of their regular duties may make an arrest for the
offense, and the arrest is lawful because of the citizen arrest
powers in Iowa Code section 804.9.

On May 23, Rilea and Riley filed separate petitions for judicial review

with the Polk County District Court. See id. § 17A.19(10). The petitions

were later consolidated. Each petition alleged that “IDOT employees do

not have authority to stop motorists or issue citations for violations

unrelated to operating authority, registration, size, weight, and load.”

On October 24, after hearing argument, the district court reversed

the IDOT’s declaratory orders. The court reasoned,

IDOT admits it lacks authority under Section 321.477 to issue
citations for matters other than operating authority,
registration, size, weight, and load, yet it argues its officers
have citizen arrest authority to do so for violations which
occur in their presence. The citizen’s arrest statute applies to
“private persons.” The record shows that IDOT has 100
uniformed officers, who drive marked cars with lights and
sirens, and who possess radar guns to catch speeders. They
have issued thousands of citations for matters other than
operating authority, registration, size, weight, and load. They
are not acting as private persons, but as state actors. In
addition, they do not take people into custody for a formal
arrest. Under the plain language of Section 804.9 and the
Iowa Supreme Court’s ruling in . . . Merchants Motor Freight[,
Inc. v. State Highway Commission, 239 Iowa 888, 32 N.W.2d
773 (1948),] . . . the citizen’s arrest statute does not give them
authority to do so.
 5

The IDOT appealed, and we retained the appeal.

III. Standard of Review.

We examine district court reviews of agency decisions to determine

whether the court applied the law correctly. Hawkeye Land Co. v. Iowa

Utils. Bd., 847 N.W.2d 199, 207 (Iowa 2014). We apply the standards set

forth in Iowa Code section 17A.19(10) and “determine whether our

application of those standards produce[s] the same result as reached by

the district court.” Id. (alteration in original) (quoting Auen v. Alcoholic

Beverages Div., 679 N.W.2d 586, 589 (Iowa 2004)).

The level of deference owed to an agency’s interpretation of a statute

turns on whether the legislature vested the agency with the interpretive

authority. See Iowa Code § 17A.19(10)(c); Hawkeye Land Co., 847 N.W.2d

at 207. The legislature did not expressly grant interpretive authority to

the IDOT in chapter 321. Although the legislature gave the IDOT the

authority to “administer and enforce the provisions” of Iowa Code chapter

321 “[e]xcept as otherwise provided by law,” Iowa Code § 321.2(1), this is

not the same as interpretive authority, see Watson v. Iowa Dep’t of Transp.,

829 N.W.2d 566, 569 (Iowa 2013) (determining that the IDOT was not

vested with the authority to interpret Iowa Code section 321.208).

Moreover, the language at issue does not involve “substantive term[s]

within the special expertise of the agency.” Renda v. Iowa Civil Rights

Comm’n, 784 N.W.2d 8, 14 (Iowa 2010). Additionally, much of this case

involves chapter 804, which is not part of the IDOT’s domain. See id.

(noting that interpretive power has not been vested with the agency when

“the provisions to be interpreted are found in a statute other than the

statute the agency has been tasked with enforcing”). Because there is no

clear indication that the legislature vested the IDOT with authority to

interpret Iowa Code sections 321.477 and 804.9, “we review for erroneous
 6

interpretations of law.” Hawkeye Land Co., 847 N.W.2d at 207 (quoting

Iowa Dental Ass’n v. Iowa Ins. Div., 831 N.W.2d 138, 143 (Iowa 2013)); see

Iowa Code § 17A.19(10)(c).

IV. Analysis.

A. IDOT Authority Under Chapter 321. We first consider whether

IDOT MVE officers had authority based on chapter 321 to issue tickets for

traffic violations. To do so, we begin by tracing the IDOT’s statutory

authority under that chapter.

In 1913, the general assembly enacted legislation to establish the

Iowa State Highway Commission, the predecessor to the IDOT. 1913 Iowa

Acts ch. 122, title. In 1941, the legislature conferred authority on the

highway commission to stop motor vehicles or trailers “on the highways

for the purposes of weighing and inspection, to weigh and inspect the same

and to enforce the provisions of the motor vehicle laws relating to the size,

weight and load of motor vehicles and trailers.” 1941 Iowa Acts ch. 177,

§ 1 (codified at Iowa Code § 321.476 (1946)). Additionally, the highway

commission received authority to designate certain employees as peace

officers “to control, direct, and weigh traffic on the highways, and to make

arrests for violations of the motor vehicle laws relating to the size, weight

and load of motor vehicles and trailers.” 1941 Iowa Acts ch. 177, § 2

(codified at Iowa Code § 321.477 (1946)).

Sixteen years later, in 1957, the general assembly amended Iowa

Code section 321.477 to expand the highway commission’s authority so

that it included violations relating to registration. 1957 Iowa Acts ch. 160,

§ 2 (codified at Iowa Code § 321.477 (1958)).

Then, in 1974, the general assembly established the IDOT. 1974

Iowa Acts ch. 1180, preamble. At that time, “the duties and

responsibilities of the state highway commission [were] transferred to the
 7

state department of transportation.” Id. The IDOT inherited the authority

previously vested in the highway commission by the legislature through

Iowa Code section 321.477. Id. § 107 (codified at Iowa Code § 321.477

(1975)). The same legislation also amended section 321.477 to add

“operating authority” to the list of violations that the agency’s peace

officers could enforce. Id.

Previously, in 1939, the department of public safety (DPS) had been

created, thereby centralizing all state peace officers. 1939 Iowa Acts

ch. 120, § 1 (codified at Iowa Code § 80.1 (1946)). In the same 1974

legislation that formed the IDOT, the legislature also specified,

The division of the highway safety patrol of the [DPS]
shall enforce the provisions of this chapter relating to traffic
on the public highway[s] of the state, including those relating
to the safe and legal operation of passenger cars, motorcycles,
motor trucks, and buses, and to see that proper safety rules
are observed.

1974 Iowa Acts ch. 1180, § 101 (codified at Iowa Code § 321.2 (1975)).

This division of labor between the IDOT and the DPS remained in

place until 2017. Thus, when Rilea and Riley received their speeding

tickets from the IDOT in 2016, Iowa Code section 321.477 stated in

pertinent part as follows:

The [IDOT] may designate by resolution certain of its
employees upon each of whom there is hereby conferred the
authority of a peace officer to control and direct traffic and
weigh vehicles, and to make arrests for violations of the motor
vehicle laws relating to the operating authority, registration,
size, weight, and load of motor vehicles and trailers and
registration of a motor carrier’s interstate transportation
service with the department.

Iowa Code § 321.477.

In 2017, after controversy arose about the authority of the IDOT’s

MVE officers, the general assembly amended Iowa Code section 321.477

so it now reads in pertinent part as follows:
 8
1. The [IDOT] may designate by resolution certain of its
employees upon each of whom there is conferred the authority
of a peace officer to enforce all laws of the state including but
not limited to the rules and regulations of the department.
Employees designated as peace officers pursuant to this
section shall have the same powers conferred by law on peace
officers for the enforcement of all laws of this state and the
apprehension of violators.

2. Employees designated as peace officers pursuant to
this section who are assigned to the supervision of the
highways of this state shall spend the preponderance of their
time conducting enforcement activities that assure the safe
and lawful movement and operation of commercial motor
vehicles and vehicles transporting loads, including but not
limited to the enforcement of motor vehicle laws relating to the
operating authority, registration, size, weight, and load of
motor vehicles and trailers, and registration of a motor
carrier’s interstate transportation service with the
department.

Iowa Code § 321.477 (2018). The amendment was deemed of immediate

importance and took effect upon its enactment on May 11, 2017. 3 2017
Iowa Acts ch. 149, § 5.

Rilea and Riley contend that this amendment demonstrates the

general assembly realized a need in 2017 to fix a gap in the IDOT’s

enforcement authority. The IDOT maintains that the 2017 amendment

merely clarified preexisting law.

In Merchants Motor, our court addressed the scope of the highway

commission’s enforcement authority. 239 Iowa at 892–93, 32 N.W.2d at

775–76. A Minnesota corporation operated trucks “over established routes

and between fixed terminals both within and without” Iowa. Id. at 889, 32

N.W.2d at 774. Some trucks were licensed in Iowa, others in Minnesota.

Id. at 889–90, 32 N.W.2d at 774. The highway commission issued

summonses to the trucks with Minnesota registrations, claiming that they

3The 2017 amendment also included a sunset provision that would have

terminated its effect on July 1, 2018. See 2017 Iowa Acts ch. 149, § 4. In the following
legislative session, the legislature extended the term of the sunset to July 1, 2019. See
2018 Iowa Acts ch. 1170, div. II, § 3.
 9

were improperly licensed and asserting that the commission could enforce

laws relating to registration in addition to those relating to size, weight,

and load. Id. at 890, 32 N.W.2d at 774. 4

The Minnesota corporation sought and obtained an injunction

against the highway commission’s actions. See id. at 890, 32 N.W.2d at

774–75. On appeal, we affirmed the trial court. Id. at 896, 32 N.W.2d at

777. We found that the highway commission’s enforcement authority was

limited to that expressly conferred in Iowa Code section 321.477. Id. at

892, 32 N.W.2d at 775. We said, “The authority of the [highway

commission], under the motor vehicle statutes, is limited to size, weight

and load of vehicles and the trial court was correct in so holding.” Id. at

893, 32 N.W.2d at 776.

Our court also emphasized that chapter 80, concerning the DPS,

prohibited “other departments and bureaus of the state . . . from employing

special peace officers or conferring upon regular employees any police

powers to enforce provisions of the statutes, which are specifically reserved

by this act to this department.” Id. at 891, 32 N.W.2d at 775 (quoting Iowa

Code § 80.22 (1946)). Today, Iowa Code section 80.22 contains virtually

identical language:

All other departments and bureaus of the state are
hereby prohibited from employing special peace officers or
conferring upon regular employees any police powers to
enforce provisions of the statutes which are specifically
reserved by the 1939 Iowa Acts, ch. 120, to the department of
public safety.[5]

4Thiswas before the 1957 amendment noted above that gave the highway
commission express authority over registration violations.
5The authority reserved by the legislature in 1939 to the DPS included the
following:
2. To enforce all laws relating to traffic on the public highways of
the state, including those relating to the safe and legal operation of
passenger cars, motorcycles, motor trucks and busses; to issue operators’
 10

Iowa Code § 80.22 (2018). Therefore, section 80.22 expressly barred, and

still bars, other agencies from bestowing on their own peace officers

authority reserved to the DPS.

The conclusion we reached in Merchants Motor as to the highway

commission would logically apply to the IDOT, because the IDOT

succeeded to the highway commission’s powers and any limitations on

those powers. In State v. A-1 Disposal, decided after the IDOT replaced

the highway commission, we upheld the legality of stops for weighing

purposes that IDOT officers had performed at a temporary checkpoint.

415 N.W.2d 595, 595–96 (Iowa 1987). In finding that such stops were

constitutional because the intrusion on individual drivers was “relatively

slight,” we emphasized “DOT officers’ power to intrude on individuals is

strictly limited by the Iowa Code to inspecting for registration, weight, size,

load and safety violations.” Id. at 599 (citing Iowa Code §§ 321.476, .477,

.492 (1985)).

Notwithstanding the pre-2017 wording of Iowa Code section

321.477, and the decisions in Merchants Motor and A-1 Disposal, the IDOT

argues that it had general authority to issue speeding tickets and other

traffic citations based on sections 321.2 and 321.285 and State v. Moore,

609 N.W.2d 502 (Iowa 2000) (en banc).

Iowa Code section 321.2(1) does empower the IDOT to “administer

and enforce the provisions of [chapter 321].” Iowa Code § 321.2(1).

However, this is subject to the caveat, “[e]xcept as otherwise provided by

law.” Id. Section 321.2(2), meanwhile, authorizes the DPS to “enforce the

provisions of this chapter relating to traffic on the public highways of the

and chauffeurs’ licenses; to see that proper safety rules are observed and
to give first aid to the injured[.]
1939 Iowa Acts ch. 120, § 8 (codified at Iowa Code § 80.9(2)(b) (1946)).
 11

state.” Id. § 321.2(2). As we noted in Merchants Motor, section 321.2(2) is

effectively an express reservation for the DPS, and under section 80.22,

other state agencies are not allowed to encroach on it. See 239 Iowa at

891, 32 N.W.2d at 775. So section 321.2 cannot provide authority that

the IDOT would not otherwise have to issue traffic citations.

Iowa Code section 321.285 establishes a number of statewide speed

restrictions while affording the IDOT some discretion over speed limits on

certain public highways. See Iowa Code § 321.285(5). But it is a grant of

authority to the IDOT to set speed limits, not to enforce them with stops,

citations, and arrests. City of Des Moines v. Iowa Dep’t of Transp., 911

N.W.2d 431, 448 (Iowa 2018) (indicating that Iowa Code § 321.285(5)

allows the IDOT to establish speed limits in some circumstances on fully

controlled-access highways but not methods of enforcing speed limits).

Accordingly, section 321.285 does not support the IDOT’s positon in this

case.

In Moore, we upheld, over constitutional objections, a stop

performed by an Iowa Department of Natural Resources (DNR) officer of a

moving vehicle in a state park. See Moore, 609 N.W.2d at 502–03.

However, the DNR officer stopped the vehicle not to issue a speeding
citation, but simply to warn the driver to slow down because it was dark

and campers were nearby. Id. at 503. This was a valid community

caretaking activity. Id. at 504. We did say that Iowa Code section 321.285

“confers a public safety function on Iowa peace officers as well as a law

enforcement function.” Id. Perhaps the authority for a DNR officer to stop

a vehicle for speeding in a state park could more readily be found in a

combination of Iowa Code sections 456A.13, 461A.26, and 461A.36, which

authorize the DNR to employ peace officers and establish speed limits in

state parks, and authorize DNR officers to enforce the laws in areas under
 12

the DNR’s jurisdiction. See Iowa Code § 456A.13; id. §§ 461A.26, .36.

Regardless, Moore did not involve the issuance of a traffic citation.

Accordingly, we conclude that nothing in Iowa Code chapter 321 as

written and as judicially interpreted would have allowed IDOT MVE officers

to issue traffic citations before 2017.

The IDOT argues that allowing its officers to ticket speeding vehicles

in construction zones enhances public safety. However, general

considerations of public policy are not enough here to outweigh clear

statutory language or longstanding precedent. Prior to May 11, 2017,

IDOT peace officers were conferred only limited authority by chapter 321

to enforce violations relating to operating authority, registration, size,

weight, and load of motor vehicles and trailers.

B. IDOT Authority to Make Citizen’s Arrests Under Iowa Code

Section 804.9. The IDOT urges that even if it did not have authority to

issue the traffic citations under Iowa Code chapter 321, it possessed such

authority under section 804.9. That section provides, “A private person

may make an arrest . . . [f]or a public offense committed or attempted in

the person’s presence.” Id. § 804.9(1).

“When we are asked to interpret a statute, we first consider the plain

meaning of its language.” State v. Nall, 894 N.W.2d 514, 518 (Iowa 2017).

An IDOT MVE officer performing her or his official duties would not

normally be considered a “private person.” Moreover, “we read statutes as

a whole rather than looking at words and phrases in isolation.” Iowa Ins.

Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58, 72 (Iowa 2015).

It is significant that a nearby Iowa Code section covers the subject of

arrests “by peace officers.” Iowa Code § 804.7. It would seem illogical,

then, if the term “private person” as used a few sections later in the Code

also embraced peace officers acting in their official capacity.
 13

Additionally, although automated traffic enforcement has changed

the playing field, at the time these statutes were written most traffic

violations on public highways would have occurred in the presence of the

person issuing the citation (if they were detected at all). It would seem odd,

therefore, for the legislature to limit the “peace officer” authority over these

violations on public highways to the DPS under Iowa Code sections 80.22

and 321.2(2) while allowing other state agencies to circumvent that

authority easily by claiming “private person” status.

Furthermore, while Iowa Code section 804.9 authorizes so-called

citizen’s arrests, only a peace officer may issue a citation in lieu of arrest.

Iowa Code section 805.1(1) states,

[A] peace officer having grounds to make an arrest may issue
a citation in lieu of making an arrest without a warrant or, if
a warrantless arrest has been made, a citation may be issued
in lieu of continued custody.

Id. § 805.1(1) (emphasis added). Even if IDOT MVE officers could be

deemed “private persons” for purposes of Iowa Code section 804.9 while

performing their official duties, they would also have to be deemed “peace
officers” at the same time to take advantage of the authority vested by Iowa

Code section 805.1—permitting citations in lieu of an arrest. In our view,

that doesn’t work.

In Merchants Motor, the highway commission argued that its officers

could rely on citizen’s arrest authority. 239 Iowa at 893, 32 N.W.2d at

776. We disagreed:

[The Highway Commission states t]hat when [a registration
violation is] committed in his presence any person may arrest,
and the fact that the defendants are clothed with the authority
of peace officers, does not prevent them from acting as
individuals. This no doubt is true, but is not a question
presented here for determination. The record clearly shows
that defendants acted, and in the future will act, officially and
under orders from the Highway Commission. Furthermore,
 14
the appellants do not threaten arrests and have not arrested.
They have issued summonses which are not authorized by
Section 755.5 [now Iowa Code section 804.9.] There is not
merit in this contention.

Id. In short, although peace officers could “act[] as individuals,” for

example if they were off-duty, the citizen’s arrest authority did not apply

to peace officers acting “officially and under orders.” Id. In any event,
authority to issue summonses did not necessarily follow from arrest

authority. Id.

More recently, in State v. Lloyd, we relied on Iowa Code section

804.9(1) to uphold a stop performed by a South Dakota police officer of a

vehicle that had crossed over into Iowa. 513 N.W.2d 742, 745 (Iowa 1994).

The officer initially tried to pull over the defendant in South Dakota for

traveling without lighted taillights. Id. at 742. The defendant failed to

stop, and the South Dakota officer followed him into Iowa, where he

succeeded in pulling him over. Id. at 742–43. After citing the defendant

for operating his truck without lighted taillights and driving with an

expired license plate, the officer noticed that the defendant looked

intoxicated and called an Iowa police officer to the scene. Id. at 743. The

defendant was subsequently convicted in Iowa of operating while

intoxicated (OWI). Id.

On appeal, the defendant argued that the South Dakota officer, who

used his official vehicle to give chase to the defendant, had “no authority

to use the indicia of his office” to make a citizen’s arrest. Id. He also

insisted that “no valid citizen’s arrest could have occurred because [the

officer] only issued [the defendant] a citation and a warning.” Id.

We rejected both arguments without referring to Merchants Motor.

We concluded that “[a]n arrest by out-of-state officers is valid as a citizen’s

arrest under section 804.9(1) if made for a public offense committed in the
 15

officers’ presence.” Id. at 744. We quoted an earlier case where we said,

“When the Omaha officers came to Iowa, they ceased to be officers but they

did not cease to be persons.” Id. at 744–45 (quoting State v. O’Kelly, 211

N.W.2d 589, 595 (Iowa 1973)). We also found that Iowa Code section

804.9(1) gave the South Dakota officer authority not just to arrest the

defendant but also to detain him: “[I]f, as we believe, [the South Dakota

officer’s] conduct amounted to something less than a technical arrest, it

was not thereby less lawful.” Id. at 744.

To some extent, Merchants Motor and Lloyd may appear to be at

cross-currents, but we think the cases can be reconciled. Lloyd held that

an out-of-state officer who ventured into Iowa could make a citizen’s arrest,

noting that he had “ceased to be [an] officer[].” Id. at 744–45 (quoting

O’Kelly, 211 N.W.2d at 595). Merchants Motor held that an Iowa State

Highway Commission officer, when acting “officially and under orders,”

could not make a citizen’s arrest. 239 Iowa at 893, 32 N.W.2d at 776. The

difference is whether the person was clothed with Iowa official authority at

the time.

Further, Lloyd held that the authority to make a citizen’s arrest

included the authority to detain someone. 513 N.W.2d at 744. Merchants

Motor held that the ability to make a citizen’s arrest did not include the

ability to issue a citation in lieu of arrest. 239 Iowa at 893, 32 N.W.2d at

776. There is a distinction between a detention and a citation. Even

though the South Dakota officer issued citations in Lloyd, they were South

Dakota rather than Iowa citations. See 513 N.W.2d at 743. 6 Furthermore,

6Our opinion explained,
Officer Sandage gave defendant a warning ticket for driving without
his taillights and, after running a check on defendant’s South Dakota
vehicle registration, also cited Lloyd for an expired license plate. Both
offenses were low-class misdemeanors under South Dakota law.
 16

their lawfulness was not at issue; what mattered was the stop. See id.

(noting the defendant’s contention that the South Dakota officer had no

authority “to flag him down and detain him in Iowa”). Hence, both cases,

in our view, can be aligned with the plain statutory language we have

already discussed, which appears to allow only private persons to make

citizen’s arrests and only peace officers to issue citations. 7

The IDOT directs our attention to an attorney general opinion

regarding the authority of IDOT officers to make OWI arrests. See Op.

Iowa Att’y Gen. No. 90–12–8, 1990 WL 484921 (Dec. 28, 1990). There, the

attorney general stated,

Notwithstanding the arrest limitation of section
321.477, the propriety of the implied consent procedures
under chapter 321J do not necessarily depend on the law
enforcement officer’s authority to arrest an individual. State
v. Wagner, 359 N.W.2d 487, 489 (Iowa 1984); Iowa Code
§ 321J.6 (1989). When a law enforcement officer initiates the
implied consent procedures under chapter 321J, they act as
a statutory agent of the DOT for purposes of administering the
laws of this state pertaining to revocation of a drivers license.
Id. at 490.

Moreover, DOT peace officers may make arrests for OWI
if, in the performance of their regular duties, the offense is
committed or attempted in the officer’s presence, pursuant to
the citizen arrest powers of Iowa Code section 804.9 (1989).
See also Iowa Code § 804.24 (1989) (arrests by private persons
and disposition of prisoner); State v. O’Kelly, 211 N.W.2d 589,
595 (Iowa 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2652,
41 L. Ed. 2d 240 (1974) (arrest by Nebraska police officer of a
person in Iowa treated as an arrest by private person);
Merchants Motor Freight v. State Hwy. Com’n, 239 Iowa 888,
893, 32 N.W.2d 773, 776 (1948); 1988 Op.Att’yGen. 66 (L) (an
arrest by municipal police officer, outside of jurisdiction,
treated as an arrest by private person).

Id. at *3.

Lloyd, 513 N.W.2d at 743 (emphasis added).
7In 1998, the general assembly added a provision to the Iowa Code expressly
permitting out-of-state officers to make arrests in Iowa under certain circumstances. See
1998 Iowa Acts ch. 1140, § 1 (codified at Iowa Code § 804.7B (1999)).
 17

“Although this court is not bound by an opinion of the attorney

general, the opinion is entitled to the court’s respectful consideration.”

Bradley v. Iowa Dep’t of Pers., 596 N.W.2d 526, 530 (Iowa 1999). “[W]hen

a controversy addressed by an attorney general opinion reaches the court

for determination, the court must enter upon an independent inquiry as

to the interpretation to be placed upon the statute.” City of Clinton v.

Sheridan, 530 N.W.2d 690, 695 (Iowa 1995) (en banc); see also Renda, 784

N.W.2d at 17–21 (disagreeing with an attorney general opinion); Harrington

v. Univ. of N. Iowa, 726 N.W.2d 363, 369–70 (Iowa 2007) (same).

We do not part ways with the attorney general regarding the ability

of properly trained IDOT officers to make OWI arrests. OWI is governed by

a separate chapter, 321J. Hence, with respect to OWI, it is not controlling

that Iowa law reserves certain chapter 321 enforcement duties to the DPS.

See Iowa Code § 80.22; id. § 321.2(2). Iowa Code section 321J.1(8)(e)

defines “peace officer” for purposes of chapter 321J to include any “law

enforcement officer who has satisfactorily completed an approved [OWI]

course.” Id. § 321J.1(8)(e). Thus, an IDOT MVE officer, if properly trained,

can enforce chapter 321J. 8

Having said that, we are not persuaded by the attorney general that
IDOT officers can make citizens’ arrests under Iowa Code section 804.9 “in

the performance of their regular duties.” See Op. Iowa Att’y Gen., No. 90–

12–8, 1990 WL 484921, at *3. The authorities cited by the attorney

general, O’Kelly and Merchants Motor, do not support this conclusion for

reasons we have already discussed. And they do not provide authority for

8The IDOT also notes that the general assembly has given authority to “all peace
officers” to enforce the provisions of chapter 321 relating to school buses. See Iowa Code
§ 321.380 (“It shall be the duty of all peace officers and of the state patrol to enforce the
provisions of sections 321.372 to 321.379.”). Nothing we say herein today affects the
authority of IDOT MVE officers to enforce Iowa Code sections 321.372 to 321.379.
 18

IDOT MVE officers to issue traffic citations unrelated to operating

authority, registration, size, weight, and load.

According to the IDOT, Iowa Code section 80.9A(7) implicitly

recognizes that DPS officers have the authority to make citizens’ arrests

because it states, “The limitations specified in subsection 6 shall in no way

be construed as a limitation on the power of [DPS] peace officers when a

public offense is being committed in their presence.” Iowa Code § 80.9A(7).

And if DPS officers can make citizens’ arrests, why not IDOT officers? But

section 80.9A, which was adopted in 2008, could have been referring to

the general authority of peace officers to make arrests for offenses

committed in their presence. See 2008 Iowa Acts ch. 1031, § 88 (codified

at Iowa Code § 80.9A (2009)); see also Iowa Code 804.7(1).

In addition, the IDOT draws our attention to Iowa Code section

321.488. It provides,

The provisions of this chapter shall govern all peace
officers in making arrests without a warrant for violations of
this chapter for offenses committed in their presence, but the
procedure prescribed herein shall not be exclusive of any
other method prescribed by law for the arrest and prosecution
of a person.

Iowa Code § 321.488. Our analysis accepts the possibility that IDOT MVE

officers could have a separate source of authority outside of chapter 321

to issue traffic citations. For reasons we have explained, though, Iowa

Code section 804.9 is not such a source of authority.

The IDOT also points out that according to the Restatement (Second)

of Torts,

[t]he peace officer has all the privileges of arrest which, by the
rules stated in §§ 119 and 120, are conferred upon one not a
peace officer. In such a case, his privilege to arrest is not
dependent upon his being a peace officer; and it is immaterial
whether he purports to act in his capacity as peace officer or
as a private person . . . .
 19

Restatement (Second) of Torts § 121, cmt. d, at 206 (Am. Law Inst. 1965).

In Iowa, though, the general assembly has enacted legislation, which

prevails to the extent it may conflict with a comment in the Restatement.

See Iowa Code § 804.9.

For the foregoing reasons, we conclude that IDOT MVE officers,

when engaged in their official duties, cannot use citizen’s arrest authority

to issue traffic citations. 9

V. Conclusion.

For the foregoing reasons, we affirm the order of the district court.

AFFIRMED.

9Notably, the Illinois Supreme Court has held that police officers cannot rely on
citizen’s arrest authority when using radar guns to catch speeders. People v. Lahr, 589
N.E.2d 539, 540–41, 542 (Ill. 1992). In Lahr, the defendant was stopped by a police officer
and issued a citation for speeding in an area outside of the police officer’s jurisdiction.
Id. at 539. The defendant challenged the police officer’s use of the citizen’s arrest defense.
Id. at 539–40. Because the police officer employed a radar gun outside of his jurisdiction
and the possibility of a private citizen obtaining and using a radar gun to conduct
surveillance on roads was remote, the Illinois Supreme Court concluded that the police
officer was asserting his police authority and not acting as a private person. Id. at 541.
The court recognized that upholding a citizen’s arrest in these circumstances would
permit officers “to establish extraterritorial radar surveillance for speeding violations”
outside of an officer’s jurisdiction, which would essentially abolish the general rule
regarding an officer’s power outside of their jurisdiction. Id. at 542. Thus, in Illinois,
when an officer uses tools of his or her office not available to private citizens to obtain
evidence, the citizen’s arrest will not be upheld. Id. at 540. We are not adopting the same
reasoning here, but the outcome for practical purposes may be similar.