Larry R. Hedlund v. State Of Iowa, K. Brian London, Commissioner of the Iowa Department of Public Safety, Individually Charis M. Paulson, Director of Criminal Investigation, Individually Gerard F. Meyers, Assistant Director Division of Criminal Investigation, Individually

IN THE SUPREME COURT OF IOWA

No. 22–0243

Submitted April 11, 2023—Filed June 9, 2023

LARRY R. HEDLUND,

Appellee,

vs.

STATE OF IOWA, K. BRIAN LONDON, Commissioner of the Iowa Department
of Public Safety, Individually; CHARLES M. PAULSON, Director of Criminal In-
vestigation, Individually; GERARD F. MEYERS, Assistant Director Division of
Criminal Investigation, Individually,

Appellants.

Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

The State and named defendants appeal the district court’s grant of the

plaintiff’s motion for summary judgment, which concluded that the 2019 amend-

ment to Iowa Code section 70A.28(5)(a) applies retrospectively. REVERSED AND

REMANDED.

McDermott, J., delivered the opinion of the court, in which all justices

joined.

Brenna Bird, Attorney General, and Jeffrey C. Peterzalek (argued) and Wil-

liam R. Pearson, Assistant Attorneys General, for appellants.

Thomas J. Duff (argued) and Jim Duff of Duff Law Firm, P.L.C., West Des

Moines, and Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des

Moines, for appellee.
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McDERMOTT, Justice.

Larry Hedlund filed a lawsuit in 2013 against the State and several state

officials (collectively, the “State”) asserting a claim for wrongful discharge under

Iowa’s whistleblower-protection law, Iowa Code section 70A.28 (2013). In 2019,

while Hedlund’s lawsuit was still pending, the legislature amended section

70A.28 to allow an aggrieved employee to pursue damages beyond those that the

prior version of the statute allowed. 2019 Iowa Acts ch. 109, § 1 (codified at Iowa

Code § 70A.28(5)(a) (2020)). Hedlund filed a motion arguing that the new amend-

ments should apply retrospectively to his claim. The district court ruled in his

favor. The State filed an application for interlocutory appeal challenging that rul-

ing, which we granted.

This case is no stranger to our court. In 2016, we decided an appeal chal-

lenging the district court’s dismissal of Hedlund’s wrongful-discharge-in-viola-

tion-of-public-policy claim and a related motion to amend the district court’s

ruling, ultimately dismissing the appeal as untimely. Hedlund v. State (Hedlund

I), 875 N.W.2d 720, 722–24, 727 (Iowa 2016). In 2019, we decided an appeal

challenging the dismissal of Hedlund’s section 70A.28 claim and two other

claims. Hedlund v. State (Hedlund II), 930 N.W.2d 707 (Iowa 2019). We reversed

the dismissal of his section 70A.28 claim but held that he wasn’t entitled to a

jury trial because the statute provided only equitable relief. Id. at 718. In both

appeals, we detailed Hedlund’s allegations and the earlier procedural history of

this case, and we will forego restating them in full here. Hedlund II, 930 N.W.2d

at 712–15; Hedlund I, 875 N.W.2d at 722–24. This appeal, as the parties observe,
 3

presents a question of statutory interpretation about the temporal application of

the chapter 70A amendments. We pick up the relevant procedural history where

Hedlund II left off.

Three days after we filed our opinion in Hedlund II, an amendment to sec-

tion 70A.28(5)(a) went into effect. 2019 Iowa Acts ch. 109, § 1 (codified at Iowa

Code § 70A.28(5)(a) (2020)). Language added by that amendment to the existing

statute is shown here in italics:

A person who violates subsection 2 [(wrongfully discharging or re-
taliating against an employee)] is liable to an aggrieved employee for
affirmative relief including reinstatement, with or without back pay,
civil damages in an amount not to exceed three times the annual
wages and benefits received by the aggrieved employee prior to the
violation of subsection 2, and any other equitable relief the court
deems appropriate, including attorney fees and costs.

Iowa Code § 70A.28(5)(a) (2020). Compare id. § 70A.28(5)(a) (2020), with id.

§ 70A.28(5)(a) (2019).

Hedlund filed a motion asking the district court to declare that the statu-

tory amendments applied retrospectively to his claim and entitled him to pursue

the additional damages. He further argued that because the new damages au-

thorized under the statute compensate aggrieved plaintiffs for their losses, they

constitute legal relief entitling him to a jury trial. The district court, as men-

tioned, granted Hedlund’s motion, and this interlocutory appeal from the State

followed. The State makes three arguments on appeal: that the district court

erred in applying the amendments retrospectively; that the “law of the case” (our

decision in Hedlund II) forecloses a jury trial and compensatory damages; and

that Hedlund waived his right to a jury trial because, after the case had been
 4

remanded, the parties agreed during a trial scheduling conference to set the case

for a ten-day nonjury trial and the district court entered a trial scheduling order

accordingly.

We begin with the State’s challenge to retrospective application of the

amendments. The district court used a multifactor test described in some of our

prior cases for determining whether a statute applies retrospectively. The first

step in this analysis considers “whether the legislature expressly stated its intent

that a statute should apply retrospectively.” Dindinger v. Allsteel, Inc., 860

N.W.2d 557, 563 (Iowa 2015). The second step assesses “whether the statute

affects substantive rights or relates merely to a remedy.” Anderson Fin. Servs.,

LLC v. Miller, 769 N.W.2d 575, 579 (Iowa 2009). If it relates to a remedy, the

statute is presumed to apply retrospectively, and the court then embarks on “a

three-part test to determine if retroactive application is consistent with legislative

intent.” Id. In this subtest seeking to ascertain legislative intent, the court is to

(1) “examine the language of the act,” (2) “consider the manifest evil to be reme-

died,” and (3) “determine whether there was an existing statute governing or lim-

iting the mischief that the new act is intended to remedy.” Janda v. Iowa Indus.

Hydraulics, Inc., 326 N.W.2d 339, 344 (Iowa 1982).

On the first step, the district court determined that the statute did not

expressly provide for retrospective application of the amendments. On the sec-

ond step, the district court looked to our definition of a “remedial” statute as one

that “provides an additional remedy to an already existing remedy or provides a
 5

remedy for an already existing loss.” Iowa Beta Chapter of Phi Delta Theta Frater-

nity v. State, 763 N.W.2d 250, 267 (Iowa 2009). The district court determined

that the heightened damages added by the amendments met this definition, and

thus, the statute must be presumed retrospective. Turning then to the three-

part test to divine legislative intent, the district court chiefly relied on two news-

paper articles in which two legislators mentioned pending matters raising whis-

tleblower-protection claims, and a floor statement by a legislator sponsoring the

bill with the amendments, as evidence that the legislature intended retrospective

application.

We break with the district court’s analysis on the second part of the test—

whether the amendments are substantive or remedial. Even if a statute might fit

a broad conception of “remedial” as we’ve defined that term, a statute that im-

poses a meaningful change in the parties’ positions after the conduct at issue is

nonetheless “substantive” and requires prospective treatment. In Hiskey v. Malo-

ney, for instance, we declined to retrospectively apply a statute that allowed

county treasurers to seek as an additional remedy a personal judgment for the

payment of delinquent real estate taxes, even though a remedy permitting judg-

ments against the person’s property already existed. 580 N.W.2d 797, 799 (Iowa

1998). Similarly, in Davis v. Jones, we declined to retrospectively apply a statute

that made former Iowa residents subject to the court’s jurisdiction by personal

service of a lawsuit, even though they would have been subject to the court’s

jurisdiction if personally served in the same manner while they lived in Iowa. 78

N.W.2d 6, 7–10 (Iowa 1956). Summarizing both cases in Dindinger v. Allsteel,
 6

Inc., we noted that “[n]either of those statutes altered the scope of what was and

was not permissible conduct under Iowa law,” but still “we considered both to be

substantive rather than remedial or procedural changes.” 860 N.W.2d at 563,

565 (declining to retrospectively apply amendments to the Iowa Civil Rights Act

that imposed liability for wage discrimination and enhanced existing remedies).

The United States Supreme Court has interpreted amendments to the Fed-

eral Civil Rights Act similarly. See Landgraf v. USI Film Prods., 114 S. Ct. 1483

(1994). In Landgraf v. USI Film Products, the Court analyzed whether enhanced

remedies provided to plaintiffs in civil rights cases applied retrospectively. Id. at

1489. Before the amendments, the Act afforded only equitable remedies, with

backpay as the primary form of relief available. Id. at 1490. The amendments

allowed the addition of compensatory damages and a trial by jury. Id.

Although the amendments in Landgraf provided an additional remedy to

an already-existing remedy, the Supreme Court refused to retrospectively apply

them. Id. at 1508. To do so, the Court said, would have meant applying “statutes

affecting substantive rights, liabilities, or duties to conduct arising before their

enactment.” Id. at 1504. The Court explained that “[u]nlike certain other forms

of relief, compensatory damages are quintessentially backward looking” and are

thus “the type of legal change that would have an impact on private parties’

planning.” Id. at 1506.

Considering the similarities between the statutory amendments in this

case and in Landgraf, we find the Landgraf Court’s reasoning instructive. In both

cases, statutory amendments added compensatory damages to the equitable
 7

remedies that were already in place. See id. at 1490–91. In both cases, applying

the statute to past conduct would expose the defendants to increased liability

with far harsher penalties than were available when the alleged misconduct took

place. Id. at 1506–07.

In this case, before the amendments, a defendant sued under section

70A.28 could be held liable for reinstatement, backpay, and fees. See Iowa Code

§ 70A.28(5)(a) (2019). After the amendments, the employer could, in addition, be

required to pay up to three times the employee’s annual wages and benefits. See

Iowa Code § 70A.28(5)(a) (2020). This change conceivably turns, in some in-

stances, an employer’s liability for damages from one in the low five-figures to

one well into the six-figures after. This is, in our view, “the type of legal change

that would have an impact on private parties’ planning.” Landgraf, 114 S. Ct. at

1506.

“The extent of a party’s liability, in the civil context as well as the criminal,

is an important legal consequence that cannot be ignored.” Id. at 1507. A change

to a remedy can, without question, bring about a substantive change that re-

quires a prospective, not retrospective, application. “Elementary considerations

of fairness dictate that individuals should have an opportunity to know what the

law is and to conform their conduct accordingly; settled expectations should not

be lightly disrupted.” Id. at 1497. What’s more, retrospective application of the

amendments’ heightened remedies would not serve the purpose of motivating

defendants to take preventive action before the alleged misconduct occurs. See

id. at 1506 n.35. Because retrospectively applying the amendments to section
 8

70A.28(5)(a) would substantively alter the State’s potential liability for preenact-

ment conduct, the amendments should not apply retrospectively. The district

court thus erred in its ruling to the contrary.

This doesn’t end our analysis. Both parties in their appellate briefs cite to

another case, Hrbek v. State, in which we used a different analytical test to de-

termine whether a statute should have retrospective application. 958 N.W.2d

779, 782 (Iowa 2021). Both parties present arguments (to different extents) that

would apply our revised analytical test in Hrbek to the amendments in this case.

In Nahas v. Polk County, a case also filed today, we applied this revised test for

retrospective application. ___ N.W.2d ___ (Iowa 2023).

Under our revised test, the court first must determine whether the stat-

ute’s application “is in fact retrospective.” Id. at ___ (quoting Hrbek, 958 N.W.2d

at 782). If the application is indeed retrospective, then the court next must de-

termine whether the statute should be applied retrospectively. Id. at ___. For this

determination, we engage in statutory interpretation to determine whether the

legislature “expressly made [the statute] retrospective.” Iowa Code § 4.5. If so,

then the court determines whether any substantive law bars the statute’s retro-

spective application. Nahas, ___ N.W.2d at ___. Most of the difficult judgments

will come in analyzing the first question, and less so the second or third. See

Landgraf, 114 S. Ct. at 1498 (cautioning that “deciding when a statute operates

‘retroactively’ is not always a simple or mechanical task”); Antonin Scalia &
 9

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 262 (2012) [here-

inafter Scalia & Garner, Reading Law] (“The difficult question is: What does ret-

roactivity consist of?”).

Applying the revised test to this case, we begin by determining whether the

amendments’ application is in fact retrospective. Hrbek, 958 N.W.2d at 782. An

application is retrospective “when a statute applies a new rule, standard, or con-

sequence to a prior act or omission.” Id. We focus on the timing of “the specific

conduct regulated or addressed in the statute.” Nahas, ___ N.W.2d at ___. We

must determine, in other words, whether the act or event that the statute is

meant to regulate is in the past or future. If the future, then it’s prospective; if

the past, then it’s retrospective. Prospective uses are generally permitted since

they don’t upend a party’s settled expectations or prevent a party from conform-

ing its conduct to avoid future liability. Retrospective uses, on the other hand,

require further analysis.

In Hrbek, we analyzed whether a new statute that barred represented de-

fendants in postconviction-relief cases from filing pro se documents operated

retrospectively. 958 N.W.2d at 781–82. The defendant argued that, because he’d

filed his application for postconviction relief long before the new statute went

into effect, rejecting his pro se brief would constitute a retrospective application

of the new statute. Id. at 782–83. We determined that the act that the statute

meant to regulate was the filing of the pro se brief itself, not the application for

postconviction relief. Id. at 783. Because he filed his pro se brief after the stat-

ute’s enactment, we held that the statute operated prospectively. Id. at 783–84.
 10

In Nahas, we analyzed whether either of two different subsections of Iowa

Code section 670.4A operated retrospectively. ___ N.W.2d at ___. Subsection

(1)(a) of the statute established qualified immunity for municipalities. Id. at ___.

We determined that the activity that this subsection meant to regulate was the

unlawful conduct alleged in the petition. Id. at ___. Because that conduct oc-

curred before the statute’s enactment, we declined to retrospectively apply sub-

section (1)(a). Id. at ___. Subsection (3) of the statute, on the other hand, imposed

several heightened pleading standards for petitions that allege a violation of the

Iowa Municipal Tort Claims Act. Id. at ___. Because the plaintiff filed his petition

and two later amendments after the statute’s enactment, we held that two of the

statute’s heightened pleading requirements—to “state with particularity the cir-

cumstances constituting the violation” and to plead “a plausible violation” of the

law—applied prospectively to those pleadings. Id. at ___ (quoting Iowa Code

§ 670.4A (2021)).

Hedlund argues that applying a heightened remedy operates prospectively,

not retrospectively, because it regulates an event in the future—the jury’s verdict

at the forthcoming trial. But this misidentifies the activity that the statute is

meant to regulate. See Hrbek, 958 N.W.2d at 782 (“The prior act or omission is

the event of legal consequence ‘that the rule regulates.’ ” (quoting Landgraf, 114

S. Ct. at 1524 (Scalia, J., concurring in the judgment))). The specific conduct

regulated in section 70A.28(5)(a) is the wrongful discharge or retaliation de-

scribed in subsection (2). See Iowa Code § 70A.28(5)(a). The damages available
 11

in subsection (5)(a) simply describe the potential consequences for that miscon-

duct. See id. The amendments apply a new consequence—damages up to three

times an employee’s annual wages and benefits—to a prior act of wrongful ter-

mination or retaliation. See id. As a result, the activity that the statute regulates

doesn’t take place in the future but in the past, making its application retrospec-

tive.

Turning then to the second step of this test, we must determine whether

the statute should be applied retrospectively. Nahas, ___ N.W.2d at ___. We ordi-

narily presume that statutes operate only prospectively. Dindinger, 860 N.W.2d

at 563. “As a general, almost invariable rule, a legislature makes law for the

future, not for the past.” Scalia & Garner, Reading Law at 261. The legislature

has, by statute, built this presumption into every law that it enacts; Iowa Code

section 4.5 states: “A statute is presumed to be prospective in its operation un-

less expressly made retrospective.”

The legislature included no express language in the statute to give it ret-

rospective application. We thus need not move to the third step (whether any

substantive law bars the statute’s retrospective application) under our revised

test. Because Hedlund seeks to apply the amendments retrospectively, and be-

cause the legislature made no express provision for retrospective application, the

amendments to chapter 70A.28 do not apply in this case. Under our revised test,

too, the district court’s judgment must be reversed.
 12

We prefer the revised test to our prior approach. Among other features, it

upholds the statutory presumption that statutes will not be applied retrospec-

tively unless the legislature expressly provides for retrospective application. See

Iowa Code § 4.5. As the Supreme Court put the point in Landgraf:

Requiring clear intent assures that Congress itself has affirmatively
considered the potential unfairness of retroactive application and
determined that it is an acceptable price to pay for the countervail-
ing benefits. Such a requirement allocates to Congress responsibility
for fundamental policy judgments concerning the proper temporal
reach of statutes, and has the additional virtue of giving legislators
a predictable background rule against which to legislate.

114 S. Ct. at 1501 (majority opinion). Our revised approach also generally follows

the reasoning of Landgraf, the Supreme Court’s most recent case on retrospec-

tive application of statutes, and thus is the approach now followed by federal

courts. See, e.g., Elbert v. True Value Co., 550 F.3d 690, 692–93 (8th Cir. 2008)

(applying Landgraf to deny the retrospective application of amendments to a

statute that enlarged the universe of potential plaintiffs and enhanced damages).

Finally, we believe the revised approach is consistent with the results in

our prior cases, including those that engaged in a separate analysis for remedial

or procedural statutes. For example, in State v. Fordyce, consistent with the sec-

ond step of our revised approach, we declined to apply new “stand your ground”

legislation to the defendant’s case, explaining, “it was the legislature’s preroga-

tive not to make that [amendment] effective” retroactively. 940 N.W.2d 419, 424,

427 (Iowa 2020) (quoting State v. Williams, 929 N.W.2d 621, 637 (Iowa 2019)).

In State v. Macke, consistent with the second step of our revised approach, we

held that legislation limiting appeals did not apply to appeals that were already
 13

pending on the law’s effective date given the absence of “retroactivity language”

in the legislation. 933 N.W.2d 226, 235 (Iowa 2019). In Dindinger, consistent

with the second step of our revised approach, we considered Iowa Code section

4.5 and held that a law that “altered the scope of what was and was not permis-

sible conduct under Iowa law” did not apply to conduct that predated the effec-

tive date of the law. 860 N.W.2d at 565–66. In Anderson Financial Services, LLC

v. Miller, consistent with the second step of our approach, we held that a cap on

finance charges, with no express language regarding retroactivity, did not apply

to loans that originated before the law became effective. 769 N.W.2d at 580–81.

In Iowa Beta Chapter of Phi Delta Theta Fraternity v. State, consistent with the

second step of our revised approach, we declined to apply a law eliminating per-

sonal liability for torts committed by state employees because the legislature had

not specified retrospective application and “[a]t the time of the commission of the

tort, [the state employee] could be held personally liable for his acts.” 763 N.W.2d

at 267. In City of Waterloo v. Bainbridge, consistent with the second step of our

approach, we held that a law enabling a city to obtain title to abandoned build-

ings applied to a building that had been abandoned before the law’s effective date

but had remained abandoned thereafter, because the statute was aimed at “[t]he

unsafe condition created by abandoned buildings, regardless of when they be-

came abandoned.” 749 N.W.2d 245, 247–48, 251 (Iowa 2008). In Iowa Compre-

hensive Petroleum Underground Storage Tank Fund Board v. Shell Oil Co., con-

sistent with the second step of our revised approach, we applied environmental

legislation “designed to address past and future petroleum leaks” to past releases
 14

of petroleum as well as future ones. 606 N.W.2d 370, 375–76 (Iowa 2000). In

Thorp v. Casey’s General Stores, Inc., consistent with the third step of our revised

approach, we refused to apply a statutory amendment retrospectively because it

would deprive the plaintiff of a vested cause of action without due process. 446

N.W.2d 457, 463 (Iowa 1989). And in Janda v. Iowa Industrial Hydraulics, Inc.,

consistent with the first step of our approach, we held that interest on judgments

entered after a new interest-rate-setting statute went into effect should be cal-

culated from the petition’s date of filing, even if that date was before the statute’s

effective date, despite language that the statute didn’t apply to judgments en-

tered before the effective date. 326 N.W.2d at 343–45. But see State ex rel. Turner

v. Limbrecht, 246 N.W.2d 330, 333–34 (Iowa 1976) (finding in the preamble of a

consumer fraud statute a legislative intent that it apply retrospectively). In short,

we believe the revised approach generally offers a more coherent explanation for

the results in these cases. (Of course, nothing we say in this case is meant to

affect cases governed by Iowa Code section 4.13(2), which states that “[i]f the

penalty, forfeiture, or punishment for any offense is reduced by a reenactment,

revision, or amendment of a statute, the penalty, forfeiture, or punishment if not

already imposed shall be imposed according to the statute as amended.”)

Because we find in the State’s favor that section 70A.28(5)(a) cannot apply

retrospectively to Hedlund’s claims, we need not address the State’s law-of-the-

case and waiver arguments. We reverse the district court’s grant of Hedlund’s

motion seeking retrospective application of the amendments to chapter 70A.28

and remand for further proceedings.
 15

REVERSED AND REMANDED.