IN THE SUPREME COURT OF IOWA
No. 15–0695
Filed June 30, 2017
CHRISTOPHER J. GODFREY,
Appellant,
vs.
STATE OF IOWA; TERRY BRANSTAD, Governor of the State of Iowa,
Individually and in his Official Capacity; KIMBERLY REYNOLDS,
Lieutenant Governor of the State of Iowa, Individually and in her Official
Capacity; JEFFREY BOEYINK, Chief of Staff to the Governor of the State
of Iowa, Individually and in his Official Capacity; BRENNA FINDLEY,
Legal Counsel to the Governor of the State of Iowa, Individually and in
her Official Capacity; TIMOTHY ALBRECHT, Communications Director
to the Governor of the State of Iowa, Individually and in his Official
Capacity; and TERESA WAHLERT, Director, Iowa Workforce
Development, Individually and in her Official Capacity,
Appellees.
Appeal from the Iowa District Court for Polk County, Brad McCall,
Judge.
Plaintiff seeks interlocutory review of district court’s grant of
summary judgment. AFFIRMED IN PART AND REVERSED IN PART.
Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C.,
Des Moines, for appellant.
Jeffrey S. Thompson, Solicitor General, and Jeffrey C. Peterzalek,
Assistant Attorney General, for appellees.
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Alan R. Ostergren, Muscatine, for amicus curiae Iowa County
Attorneys Association.
Richard J. Sapp and Ryan G. Koopmans (until withdrawal) of
Nyemaster Goode, P.C., Des Moines, for amici curiae Iowa League of
Cities, Iowa State Association of Counties, Iowa Communities Assurance
Pool and Iowa Association of School Boards.
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APPEL, Justice.
In this case, we are called upon to determine whether the equal
protection and due process provisions of the Iowa Constitution provide a
direct action for damages in the context of an employment dispute
between an Iowa Workers’ Compensation Commissioner and various
state officials, including the Governor, the Lieutenant Governor, the
Governor’s chief of staff, the Governor’s legal counsel, the Governor’s
communication director, and the director of Iowa Workforce
Development.
The district court granted summary judgment in favor of the
defendants on the plaintiff’s claims. We granted interlocutory appeal.
For the reasons expressed below, we reverse in part and affirm in part
the judgment of the district court.
I. Factual and Procedural Background.
This case involves claims brought against various state officials for
damages related to public employment. The petition as amended named
the State of Iowa and individual defendants Terry Branstad, Kimberly
Reynolds, Jeffrey Boeyink, Brenna Findley, Timothy Albrecht, and Teresa
Wahlert. Christopher J. Godfrey stated in the petition that he was
appointed Workers’ Compensation Commissioner in 2006 for a partial
term and then was subsequently appointed for a full term by Governor
Chet Culver in 2009. Godfrey pled that the position of commissioner was
statutorily defined as a six-year term, whereas the Iowa Constitution
establishes a four-year term for the governorship. Since July of 2008
until the incidents complained of by Godfrey, Godfrey alleged that his
salary was $112,068.84 a year, near the maximum in the statutorily set
salary range of $73,250-$112,070. See 2008 Iowa Acts ch. 1191, § 14(1),
(5).
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Godfrey alleged in the petition that defendant Branstad, prior to
taking office, demanded Godfrey’s resignation by a letter dated
December 3, 2010. Godfrey, however, asserted he refused to resign,
claiming that his position was quasi-judicial, intended to be nonpartisan,
and insulated from politics because of the two-year difference in terms
between the commissioner (six years) and the Governor (four years).
Godfrey’s petition described several meetings with Branstad, Branstad’s
staff, and some of the other individual defendants in which Godfrey was
pressured to resign. Godfrey alleges that as a result of his refusal to
resign, he was punished by having his salary reduced to the statutory
minimum of $73,250. Godfrey claims he suffered other retaliation in the
workplace at the hands of the defendants.
At issue in this interlocutory appeal are four counts alleging
violation of due process and equal protection provisions of the Iowa
Constitution. 1 In Count VI, Godfrey alleges defendants deprived him of
his constitutionally protected property interest in his salary without due
process of law because of partisan politics and/or his sexual orientation
in violation of article I, section 9 of the Iowa Constitution. In Count VII,
Godfrey alleges the defendants damaged his protected liberty interest in
his reputation without due process of law in violation of article I, section
9 by falsely claiming poor work performance. In Count VIII, Godfrey
states the State of Iowa deprived Godfrey of equal protection of the laws
in violation of article I, section 6 by discriminating against Godfrey
because of his sexual orientation. Finally, in Count IX, Godfrey alleges
1After filing this interlocutory appeal, Godfrey voluntarily dismissed counts XII,
XIII, XIV, XV, XVII, XVIII, and a second count labeled “XIV.” These were defamation
counts brought against various individual defendants. No other counts were dismissed,
including the counts raising Bivens-type claims against the individual defendants.
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the individual defendants deprived him of equal protection of the laws by
treating homosexual appointed state officers or homosexual individuals
differently than heterosexual appointed state officers or heterosexual
individuals, also in violation of article I, section 6 of the Iowa
Constitution. Under all these claims, Godfrey asks for actual damages,
punitive damages, attorney’s fees, court costs, and interest.
The defendants moved for summary judgment. According to the
defendants, they were entitled to summary judgment because there is no
private cause of action for money damages for violation of article I,
sections 6 and 9 of the Iowa Constitution. In the alternative, the
defendants argued that Godfrey’s claims were preempted by the Iowa
Civil Rights Act, Iowa Code chapter 216 (2009).
The district court granted summary judgment for the defendants
on the Iowa constitutional claims. The district court explained that it
considered the motion for summary judgment as a motion to dismiss
because neither party asserted any particular facts upon which the
district court should base its decision. The district court noted that
federal precedent in Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264
(1979), and Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), appeared to support a
cause of action for due process violations in a wrongful termination case.
Further, the district court recognized that “[s]ignificant public policy
arguments favor recognition of such claims.” Nonetheless, the district
court found that a recent unpublished court of appeals decision holding
there are no private causes of action for violations of the Iowa
Constitution was dispositive and dismissed Godfrey’s constitutional
claims. See Conklin v. State, No. 14–0764, 2015 WL 1332003, at *5
(Iowa Ct. App. Mar. 25, 2015).
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Godfrey applied for interlocutory review. We granted the
application. For the reasons expressed below, a majority of the court
concludes that Bivens claims are available under the Iowa Constitution
and that the claims raised by plaintiff in Counts VI and VII were
improperly dismissed. On the question of whether the Iowa Civil Rights
Act provides an adequate remedy sufficient to stay any Bivens-type
claim, a majority concludes that the remedy provided by chapter 216 is
adequate under the facts and circumstances of this case, and that as a
result, Counts VIII and IX of the plaintiff’s complaint were properly
dismissed.
II. Standard of Review.
A motion for summary judgment is appropriately granted when
“there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Iowa R. Civ. P.
1.981(3). “We review the legal issues necessary for resolution of the
constitutional claims presented within the context of the summary
judgment proceeding de novo.” Varnum v. Brien, 763 N.W.2d 862, 874
(Iowa 2009); accord Kistler v. City of Perry, 719 N.W.2d 804, 805 (Iowa
2006).
Generally, our review on a motion to dismiss is for correction of
errors at law. Hedlund v. State, 875 N.W.2d 720, 724 (Iowa 2016);
Mueller v. Wellmark, Inc., 818 N.W.2d 244, 253 (Iowa 2012). To the
extent that we review constitutional claims within a motion to dismiss,
our review is de novo. McGill v. Fish, 790 N.W.2d 113, 116–17 (Iowa
2010); State v. Taeger, 781 N.W.2d 560, 564 (Iowa 2010). If the
petitioner fails to state a claim upon which relief may be granted, we will
affirm a grant of a motion to dismiss. Hedlund, 875 N.W.2d at 724; King
v. State, 818 N.W.2d 1, 8 (Iowa 2012). In ruling on a motion to dismiss,
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we accept all well-pled facts in the petition as true. Shumate v. Drake
Univ., 846 N.W.2d 503, 507 (Iowa 2014); Geisler v. City Council of Cedar
Falls, 769 N.W.2d 162, 165 (Iowa 2009).
III. Claims for Monetary Damages Under Article I, Section 6
and Article I, Section 9 of the Iowa Constitution.
A. Positions of the Parties.
1. Godfrey. Godfrey argues that article I, section 6 and article I,
section 9 of the Iowa Constitution are self-executing. As a result,
according to Godfrey, no implementing legislation is necessary for
Godfrey to bring a claim against the defendants for monetary damages
under the specific Iowa constitutional provisions involved in this case.
Godfrey cites United States Supreme Court precedent as providing
persuasive reasoning that some constitutional provisions are self-
executing. The United States Supreme Court declared in Davis v. Burke
that a constitutional provision may be said to be “self-executing” if it
“supplies a sufficient rule by means of which the right given may be
enjoyed and protected, or the duty imposed may be enforced.” 179 U.S.
399, 403, 21 S. Ct. 210, 212 (1900). According to Godfrey, the reasoning
in Davis supports his position that the due process and equal protection
provisions of article I, sections 6 and 9 of the Iowa Constitution fall
within the self-executing category.
Godfrey further argues that it would be illogical for the
fundamental principles in these key Iowa constitutional provisions to
depend upon legislative action for enforcement. In support of his
argument, Godfrey cites passages in Varnum where we stated that the
purpose of constitutional provisions such as the equal protection clause
was to place certain subjects beyond the reach the elected branches and
instead entrust their enforcement to the courts. 763 N.W.2d at 875–76
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Godfrey further cites Marbury v. Madison, in which Justice Marshall
wrote, “The very essence of civil liberty certainly consists of the right of
every individual to claim the protection of the laws, whenever he receives
an injury.” 5 U.S. 137, 163 (1803). Thus, according to Godfrey, a
requirement of legislation to enforce fundamental nonmajoritarian
constitutional rights makes no sense.
Godfrey recognizes that article XII, section 1 of the Iowa
Constitution provides that the legislature “shall pass all laws necessary
to carry [the] constitution into effect.” Godfrey emphasizes the word
“necessary” in article XII, section 1. Godfrey argues that no legislation is
necessary to enforce the due process and equal protections clauses of the
Iowa Constitution. He cites appellate state court cases that have held
that Bivens-type remedies are available notwithstanding similar language
in their state constitutions. See, e.g., Widgeon v. E. Shore Hosp. Ctr., 479
A.2d 921, 930 (Md. 1984); Peper v. Princeton Univ. Bd. of Trs., 389 A.2d
465, 476 (N.J. 1978).
Turning to more modern federal cases, Godfrey draws support
from Bivens, 403 U.S. 388, 91 S. Ct. 1999. In Bivens, the United States
Supreme Court recognized a private cause of action for damages for
violation of the search and seizure provisions of the Fourth Amendment.
Id. at 397, 91 S. Ct. at 2005.
In addition to federal cases, Godfrey looks for common law support
of his claims. He argues that the Restatement (Second) of Torts and
English common law principles are embraced in section 874A of the
Restatement (Second) of Torts, which provides,
When a legislative provision [defined in comment a as
including constitutional provisions] protects a class of
persons by proscribing or requiring certain conduct but does
not provide a civil remedy for the violation, the court may, if
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it determines that the remedy is appropriate in furtherance
of the purpose of the legislation and needed to assure the
effectiveness of the provision, accord to an injured member
of the class a right of action, using suitable existing tort
action or a new cause of action analogous to an existing tort
action.
Restatement (Second) of Torts § 874A & cmt. a, at 301 (Am. Law Inst.
1979) [hereinafter Restatement (Second)]. Godfrey notes many state
courts that have found state constitutional provisions self-enforcing have
relied upon this section of the Restatement (Second) as authoritative.
Echoing Justice Harlan’s concurrence in Bivens, Godfrey also
contends that English common law long recognized a cause of action for
damages for violation of rights secured by fundamental charters and
constitutions. Justice Harlan also noted that if an explicit congressional
authority were required to authorize a damage remedy under the
Constitution, then an explicit authority should also be required for
equitable relief. Bivens, 403 U.S. at 405, 91 S. Ct. at 2009 (Harlan, J.,
concurring).
Additionally, Godfrey points to the law of remedies in support of
his claims. Godfrey notes that we have repeatedly provided injunctive
relief for constitutional violations without any enabling legislation. See,
e.g., Hensler v. City of Davenport, 790 N.W.2d 569, 590 (Iowa 2010);
State v. Dudley, 766 N.W.2d 606, 622 (Iowa 2009); Varnum, 763 N.W.2d
at 906.
Godfrey argues there is no ordinary common law tort or statutory
action that will provide him with complete relief. With respect to
common law torts, Godfrey cites Bivens, where “the Court acknowledged
that the common law could not adequately regulate the government’s
unique power to inflict injury upon individuals.” James J. Park, The
Constitutional Tort Action as Individual Remedy, 38 Harv. C.R.-C.L. L.
10
Rev. 393, 413 (2003); see Bivens, 403 U.S. at 394, 91 S. Ct. at 2003
(majority opinion). Godfrey also argues the statutory remedies under the
Iowa Civil Rights Act are insufficient to vindicate his constitutional
interests. The Iowa Civil Rights Act does not address discrimination
based on partisan politics or his alleged deprivations of property or
liberty as a result of partisan politics. Thus, Godfrey argues, the
statutory remedy is insufficient to afford him complete relief.
Further, Godfrey notes that the remedies under the Iowa Civil
Rights Act do not provide the same measure of deterrence as a Bivens
action. Godfrey cites FDIC v. Meyers, 510 U.S. 471, 485, 114 S. Ct. 996,
1005 (1994), and Carlson v. Green, 446 U.S. 14, 21–22, 100 S. Ct. 1468,
1473 (1980), for the proposition that Bivens remedies offer more effective
deterrence than most statutory remedies because of the availability of
punitive damages and the prospect of individual liability.
Having established the general framework of analysis, Godfrey
then turns to Iowa caselaw. Godfrey argues that our prior caselaw does
not impede, and in fact supports, recognizing a private cause of action.
Godfrey cites several of our early twentieth century cases which he
maintains stand for the proposition that damages are available for
violations of the Iowa Constitution. See, e.g., Girard v. Anderson, 219
Iowa 142, 148, 257 N.W. 400, 403 (1934); McClurg v. Brenton, 123 Iowa
368, 371, 98 N.W. 881, 882 (1904). Godfrey further claims that Conklin,
the recent court of appeals case, is factually and procedurally
distinguishable, was incorrectly decided, and moreover, is not binding
precedent. See 2015 WL 1332003, at *1.
2. Defendants. The defendants argue that the due process and
equal protection clauses of the Iowa Constitution are not self-executing.
They claim the plain language of article XII, section 1 requires that “[t]he
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general assembly shall pass all laws necessary to carry this constitution
into effect.” Iowa Const. art. XII, § 1. While Godfrey focuses on the
narrow term “necessary,” the defendants draw our attention to the use of
“shall” in the constitutional provision.
The defendants argue that if the drafters of the Iowa Constitution
had intended the Iowa Constitution to be self-executing, they would have
said so. The defendants argue that if the Iowa Constitution was, in fact,
self-executing, the language in article XII, section 1 would be
unnecessary. Further, the defendants point to article I, section 18,
which provides that “[p]rivate property shall not be taken for public use
without just compensation first being made.” Iowa Const. art. I, § 18.
This provision, defendants argue, is the only provision in the Bill of
Rights which explicitly authorizes an award of money damages. The
defendants note that while a number of states have enacted an analogue
of 42 U.S.C. § 1983 for state constitutional claims, Iowa has not enacted
such a statute.
The defendants rely on a trilogy of our prior cases to support their
argument that the due process and equal protection clauses of the Iowa
Constitution are not self-executing. The first case is State ex rel. Halbach
v. Claussen, 216 Iowa 1079, 250 N.W. 195 (1933). In Claussen, this
court considered whether the provisions of article IV, section 10 of the
Iowa Constitution dealing with holding elections to fill vacancies for office
were self-executing. Id. at 1091, 250 N.W. at 200. The Claussen court
held that they were not. Id.
The second Iowa case cited by the defendants in support of their
argument that the due process and equal protection clauses of the Iowa
Constitution are not self-executing is Pierce v. Green, 229 Iowa 22, 294
N.W. 237 (1940). In Pierce, the plaintiff sought a writ of mandamus
12
ordering the state tax commission to convene and directing them to
exercise their honest discretion in assessing all property. Id. at 27, 294
N.W. at 242. We reversed a dismissal of the plaintiff’s action. Id. at 55,
294 N.W. at 256. In passing, the Pierce court stated that provisions of
the Iowa Constitution, including the equal protection clause, “are not
self-executing, but require legislative action to make them effective.” Id.
at 29, 294 N.W. at 243.
The third Iowa case cited by the defendants is Van Baale v. City of
Des Moines, 550 N.W.2d 153 (Iowa 1996). In Van Baale, we considered
claims brought by a discharged Des Moines police officer who
unsuccessfully protested his dismissal through the administrative
process and through judicial review before finally bringing a separate
equal protection action. Id. at 154. We held that Van Baale had failed to
assert a viable equal protection claim because he did not specify any
group of persons who were treated differently as a class. Id. at 157.
In addition to this substantive holding, however, the Van Baale
court added additional language. Id. The Van Baale court stated,
“Although the equal protection clause creates a constitutionally protected
right, that right is not self-enforcing. Equal protection rights may be
enforced only if the Congress or a legislature provides a means of redress
through appropriate legislation.” Id. (citation omitted).
Defendants concede that a number of other state supreme courts
have recognized direct damage actions under their state constitutions
without specific legislation. However, defendants maintain that some of
these state constitutions have different enabling clauses and other
constitutional provisions. The defendants claim that these other
constitutional provisions provide a stronger basis for damages action
than the provisions of the Iowa Constitution.
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The defendants recognize that in Bivens, the United States
Supreme Court recognized a direct cause of action for a search and
seizure violation of the United States Constitution. 403 U.S. at 397, 91
S. Ct. at 2005. The defendants argue that in more recent cases, the
Court has retreated from its Bivens holding. See, e.g., Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 74, 122 S. Ct. 515, 523 (2001); Chappell v.
Wallace, 462 U.S. 296, 305, 103 S. Ct. 2362, 2368 (1983).
The defendants assert that creating a direct cause of action for
violations of the due process and equal protections clauses would violate
separation of powers. Given the express language of the enabling clause
granting the power to enact laws in order to effectuate the Iowa
Constitution to the legislature, the courts cannot usurp the power of the
legislature by declaring the due process and equal protection provisions
of the Iowa Constitution to be self-executing. Defendants cite cases from
other states reprising such separation of powers concerns. See, e.g.,
Lewis v. State, 629 N.W.2d 868, 871 (Mich. 2001); Bandoni v. State, 715
A.2d 580, 595 (R.I. 1998).
Finally, the defendants argue that the early twentieth century
cases such as McClurg, 123 Iowa 368, 98 N.W. 881, and Girard, 219 Iowa
142, 257 N.W. 400, that Godfrey cites as supporting a direct cause of
action are inapposite. These cases, defendants stress, are factually and
legally distinguishable from Godfrey’s case.
B. Approach of United States Supreme Court to Question of
Whether Provisions of the United States Constitution Are Self-
Executing for Purposes of Actions for Money Damages. This case
deals with the proper interpretation of provisions of the Iowa
Constitution. Although the precedents of the United States Supreme
Court under the United States Constitution are not binding upon us in
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our interpretation of the Iowa Constitution, we may nonetheless give
them respectful consideration in our independent analysis. State v.
Ochoa, 792 N.W.2d 260, 267 (Iowa 2010). We may consider the
persuasiveness of federal precedent, but we are by no means bound by it.
State v. Short, 851 N.W.2d 474, 490 (Iowa 2014); State v. Baldon, 829
N.W.2d 785, 790 (Iowa 2013); State v. Pals, 805 N.W.2d 767, 771 (Iowa
2011).
The key modern United States Supreme Court precedent on the
question of whether provisions of the United States Constitution are self-
executing without legislative implementation is Bivens, 403 U.S. at 397,
91 S. Ct. at 2005. Bivens claimed that Federal Bureau of Narcotics
agents entered his apartment without a warrant, arrested him,
threatened to arrest his family, searched the apartment “from stem to
stern,” and took him to a federal courthouse where he was interrogated,
booked, and strip searched. Id. at 389, 91 S. Ct. at 2001. Bivens sought
damages for the humiliation and mental suffering he sustained from the
agents’ unlawful conduct based on alleged violation of the search and
seizure provisions of the Fourth Amendment. Id. at 389–90, 91 S. Ct. at
2001. The agents moved to dismiss, arguing that Bivens’s only remedies
existed under state law in tort for violation of the right to privacy. Id. at
390, 91 S. Ct. at 2001–02. The agents argued that the Fourth
Amendment only applied to limit the ability of the agents to defend their
actions as being a valid exercise of federal power—if the agents’ actions
offended the Fourth Amendment, then they would be treated under state
law as private individuals. Id. at 390–91, 91 S. Ct. at 2002.
The Bivens Court rejected the agents’ argument, maintaining that
when federal agents violate the Fourth Amendment their power as federal
agents “does not disappear like a magic gift when it is wrongfully used.”
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Id. at 391–92, 91 S. Ct. at 2002. The Fourth Amendment protects
individuals from wrongful conduct whether or not state law would find
fault with the same conduct if committed by a private individual. Id. at
392–94, 91 S. Ct. at 2002–03.
The Bivens Court further explained that the privacy rights
protected by state law and the Fourth Amendment may be “inconsistent
or even hostile” with one another. Id. at 394, 91 S. Ct. at 2003. For
example, if a private individual is granted entry to one’s home, then the
private individual is not liable for trespass—had the homeowner not
wished to grant the private individual entry, the homeowner could
lawfully bar entry or call the police. Id. at 394–95, 91 S. Ct. at 2003–04.
If, however, the individual seeking to enter is acting under federal
authority, it is futile to resist entry—the police would not assist the
homeowner in repelling an unwelcome federal agent. See id. at 395, 91
S. Ct. at 2004. State law may not act to expand or circumscribe federal
power; only federal law may so act. Id. The Fourth Amendment,
therefore, must exist as a claim independent from any other state law
claims. Id.
The Bivens Court supported the imposition of damages for
violations of the Fourth Amendment by explaining that an action for
damages has historically been the ordinary remedy for invasions of
privacy interests. Id. The Court explained it is “well settled that where
legal rights have been invaded, and a federal statute provides for a
general right to sue for such invasion, federal courts may use any
available remedy to make good the wrong done.” Id. at 396, 91 S. Ct. at
2004 (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 777
(1946)). In Bivens, the Court found no special factors which would urge
hesitation to create a cause of action absent legislative action, citing
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special factors like “federal fiscal policy” and imposing liability on a
congressional employee acting in excess of authority lawfully delegated
by Congress. Id. at 396–97, 91 S. Ct. at 2004–05. Finally, the Court
explained, actions for damages have not been expressly forbidden by
Congress in favor of another remedy which Congress views as equally
effective. Id. at 397, 91 S. Ct. at 2005.
Justice Harlan concurred in the judgment, explaining that it was
uncontroversial that Bivens had a right to be free from unlawful searches
and seizures, but that the real question was whether the Constitution
placed the ability to create an action for damages for constitutional
violations exclusively in the hands of Congress. Id. at 399–400, 91 S. Ct.
at 2006 (Harlan, J., concurring). Justice Harlan reasoned that the
Supreme Court possessed the authority to create an action for damages
because (1) the decision to grant damages does not involve “policy
considerations not susceptible of judicial discernment”; (2) the Court has
always had the power to grant equitable relief for invasions of
constitutional interests without explicit congressional authorization and
if a general grant of jurisdiction to the federal courts by
Congress is thought adequate to empower a federal court to
grant equitable relief . . . then it seems . . . that the same
statute is sufficient to empower a federal court to grant a
traditional remedy at law;
(3) state remedies for violations of common law rights are limited when
applied to federal officials acting under color of law; (4) injuries of the
kind Bivens suffered cannot be remedied by an injunction—they have
already occurred; and (5) recognizing a cause of action for damages
would likely not result in a great expenditure of judicial resources
hearing such claims because (a) these claims would rarely be successful
due to jury hostility, and (b) Fourth Amendment interests rank highly on
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a “scale of social values” compared to other interests which are already
protected by the availability of an action for damages. Id. at 402–11, 91
S. Ct. at 2008–12.
A few years after Bivens, the Supreme Court held that a woman
who alleged she had been discriminated against on the basis of sex by a
congressman had a cause of action for damages under the Fifth
Amendment’s Due Process Clause and its equal protection component.
Passman, 442 U.S. at 248, 99 S. Ct. at 2279. After determining the
plaintiff had a protected right to be free of sexual discrimination under
the Fifth Amendment, the Passman Court next asked whether there were
any special factors counseling hesitation such that a Bivens remedy for
damages should not be granted without Congressional authorization. Id.
at 245, 99 S. Ct. at 2277.
To answer whether there were “special factors” counseling
hesitation, the Passman Court reviewed considerations addressed by the
Bivens majority and Justice Harlan’s concurrence in Bivens. Id. at 245–
48, 99 S. Ct. at 2277–79. First, the Court found damages are an
appropriate remedy for due process and equal protection violations
because, as described in Bivens, damages are the ordinary remedy for
invasion of “personal interests in liberty.” Id. at 245, 99 S. Ct. at 2277
(quoting Bivens, 403 U.S. at 395, 91 S. Ct. at 2004 (majority opinion)).
Additionally, the Court reasoned that courts will not encounter difficulty
in measuring damages due to the experience that courts have in
evaluating claims for back pay as a result of sex discrimination. Id.
Moreover, according to the Court, equitable relief would not make the
plaintiff whole. Id. In a statement that has become epigrammatic, the
Court noted “it is damages or nothing.” Id. (quoting Bivens, 403 U.S. at
410, 91 S. Ct. at 2012 (Harlan, J., concurring)).
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Second, the Passman Court noted that a suit against a
congressman does raise special concerns counseling hesitation. Id. at
246, 99 S. Ct. at 2277. These special concerns, however, should be
addressed by reference to the Speech or Debate Clause, which provides
principles for determining when a congressman is not acting as a
congressman but as an ordinary employer. Id.; see U.S. Const. art. I,
§ 6, cl. 1. The Court further explained that congressmen are not above
the law. Passman, 442 U.S. at 246, 99 S. Ct. at 2277. Therefore, the
Court held, if the congressman’s actions were not shielded by the Speech
or Debate Clause, then the plaintiff’s suit could go forward. Id.
Third, the Passman Court found that Congress had not explicitly
declared that a suit for damages is not available in a federal employment
discrimination case. Id. at 246–47, 99 S. Ct. at 2278. The Court found
no evidence that Title VII of the 1964 Civil Rights Act was intended to
foreclose alternative remedies. Id. at 247, 99 S. Ct. at 2278.
Fourth, and finally, the Passman Court did not perceive the
potential for a “deluge” of federal claims if a Bivens claim were allowed.
Id. at 248, 99 S. Ct. at 2278. For one thing, 42 U.S.C. § 1983 already
existed to provide recovery for plaintiffs when the injuries occurred under
color of state law. Id. The Court reasoned that not every tort committed
by a federal official would represent a constitutional violation—the
necessity of first demonstrating a violation of constitutional rights is a
significant hurdle that few plaintiffs could successfully vault. Id.
The Passman Court concluded by noting that if Congress created
an equally effective alternative remedy, the need for a direct
constitutional action for damages “might be obviated.” Id. The Court,
however, seemed to stress the “might” by quoting Justice Harlan’s
Bivens’s concurrence,
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Judicial resources, I am well aware, are increasingly scarce
these days. Nonetheless, when we automatically close the
courthouse door solely on this basis, we implicitly express a
value judgment on the comparative importance of classes of
legally protected interests. And current limitations upon the
effective functioning of the courts arising from budgetary
inadequacies should not be permitted to stand in the way of
the recognition of otherwise sound constitutional principles.
Id. at 248, 99 S. Ct. at 2278–79 (quoting Bivens, 403 U.S. at 411, 91
S. Ct. at 2012).
In addition to Bivens and Passman, the Supreme Court heard a
third case in which the issue of the validity of a constitutional action for
damages was squarely before the Court. In Carlson, the Supreme Court
recognized a Bivens action in the case of a mother who sued on behalf of
her son who, she alleged, suffered injuries and died in federal prison in
violation of his due process, equal protection, and Eighth Amendment
rights. 446 U.S. at 16, 100 S. Ct. at 1470.
The Carlson Court explained that when a plaintiff shows they were
injured by a federal agent’s constitutional violations, the plaintiff has a
right to recover damages except when (1) there are “special factors
counseling hesitation in the absence of [an] affirmative action by
Congress,” or (2) Congress has already “provided an alternate remedy
which it explicitly declared to be a substitute for a recovery directly under
the Constitution and viewed as equally effective.” Id. at 18–19, 100 S. Ct.
at 1471. The Court found no special factors counseling hesitation
because federal prison officials “do not enjoy such independent status in
our constitutional scheme as to suggest that judicially created remedies
against them might be inappropriate.” Id. at 19, 100 S. Ct. at 1472.
The Carlson Court next looked at the Federal Tort Claims Act to
see if the Act was intended to be a substitute for recovery under the
Constitution. Id. The Court held that it was not so intended, finding
20
nothing in its legislative history to show either intent to preempt a Bivens
remedy or to create an equally effective remedy for a constitutional
violation. Id. Additionally, the Court found that a Bivens remedy is more
effective than a remedy under the Federal Tort Claims Act because a
Bivens remedy is recoverable against individuals and thus serves a
deterrent purpose because individual federal officers face personal
financial liability. Id. at 20–21, 100 S. Ct. at 1472–73. Further, the
Court reasoned that availability of punitive damages for a Bivens action
means the constitutional action is more effective than the statutory
action, in which punitive damages are prohibited. Id. at 22, 100 S. Ct. at
1473. The Court concluded that plainly the Federal Tort Claims Act “is
not a sufficient protector of the citizens’ constitutional rights, and
without a clear congressional mandate we cannot hold that Congress
relegated respondent exclusively to the FTCA remedy.” Id. at 23, 100
S. Ct. at 1474.
The parties have provided laundry lists of United States Supreme
Court cases which they claim either support the continuing viability of
Bivens claims or show federal hostility to such claims. The defendants
direct our attention to the following cases which they claim show the
Supreme Court no longer favors such claims. See Minneci v. Pollard, 565
U.S. 118, 131, 132 S. Ct. 617, 626 (2012) (declining to recognize a
Bivens action against individual private employers running a federal
prison); Wilkie v. Robbins, 551 U.S. 537, 549–62, 127 S. Ct. 2588, 2597–
605 (2007) (denying a Bivens Fourth and Fifth Amendment claim based
on Bureau of Land Management extortion because plaintiff had ample
other remedies and because claims in the case were ill-suited for
judicially crafted relief); Corr. Servs. Corp, 534 U.S. at 66, 74, 122 S. Ct.
at 519, 523 (describing the holding of Bivens as “limited” and declining to
21
allow a damages action against private corporations acting under color of
federal law for a constitutional deprivation); Chappell, 462 U.S. at 300,
103 S. Ct. at 2365–66 (finding special factors counseling hesitation due
to the unique disciplinary structure of the military establishment in a
military race discrimination case).
In response, Godfrey cites a collection of cases that he claims cite
Bivens and support its continued vitality. See, e.g., Groh v. Ramirez, 540
U.S. 551, 555, 124 S. Ct. 1284, 1288–89 (2004) (involving a Bivens
action for violation of the Fourth Amendment); Farmer v. Brennan, 511
U.S. 825, 830, 114 S. Ct. 1970, 1975 (1994) (concerning a Bivens action
for violation of the Eighth Amendment); Mitchell v. Forsyth, 472 U.S. 511,
515, 105 S. Ct. 2806, 2809 (1985) (presenting a Bivens action for
violation of the Fourth Amendment from wiretapping); Harlow v.
Fitzgerald, 457 U.S. 800, 805, 102 S. Ct. 2727, 2731 (1982) (underlying
suit involved Bivens claims); Butz v. Economou, 438 U.S. 478, 482–83, 98
S. Ct. 2894, 2898 (1978) (underlying suit involved Bivens claims).
It is no great surprise that, in the years since Bivens, the Court
has been cautious about expanding its Bivens holding, and in some
cases has retreated from the scope of its holding. See Vicki C. Jackson,
Suing the Federal Government: Sovereignty, Immunity, and Judicial
Independence, 35 Geo. Wash. Int’l L. Rev. 521, 566–67 (2003); see also
Ziglar v. Abbasi, 582 U.S. ___, ___, ___ S. Ct. ___, ___, 2017 WL 2621317,
at *12 (2017) (“[T]he Court has made clear that expanding the Bivens
remedy is now a ‘disfavored’ judicial activity.”). Many cases appearing to
grant potentially expansive rights from the Warren and Burger Courts
have been limited or contained. See Nelson Lund, The Rehnquist Court’s
Pragmatic Approach to Civil Rights, 99 Nw. U. L. Rev. 249, 288 (2004); see
generally Ronald Kahn, The Supreme Court as a (Counter) Majoritarian
22
Institution: Misperceptions of the Warren, Burger, and Rehnquist Courts,
1994 Det. C.L. Rev. 1, 5–6 (1994). But because we do not march in
lockstep with federal law, the continuing viability of federal Bivens claims
would be important only if later cases cast doubt on the reasoning of the
original opinion.
Further, as noted by the New York Court of Appeals, the “concerns
of federalism underlie much of the Supreme Court’s reluctance to expand
relief available . . . and thereby unduly interfere with States’ rights.”
Brown v. State, 674 N.E.2d 1129, 1143 (N.Y. 1996) (discussing actions
under § 1983); see also Jennifer Friesen, Recovering Damages for State
Bills of Rights Claims, 63 Tex. L. Rev. 1269, 1275 (1985) (stressing state
judges should not be affected by need of federal courts to make
nationally uniform rules); Gary S. Gilden, Redressing Deprivations of
Rights Secured by State Constitutions Outside the Shadow of the Supreme
Court’s Constitutional Remedies Jurisprudence, 115 Penn. St. L. Rev. 877,
882 (2011) (“[I]t is well settled that the Supreme Court is constrained by
federalism when asked to recognize a right under the United States
Constitution. . . . However, concerns over federal incursion on the
prerogative of the states do not exist when a state court enforces the
guarantees of the state’s own constitution.”). We have no such
federalism concerns to dilute our approach to judicially enforceable
individual rights provisions of the Iowa Constitution.
In any event, a review of the caselaw since Bivens does not show a
retreat from Bivens reasoning as applied to situations like Godfrey’s.
Rather, the cases show an unwillingness to expand Bivens claims beyond
the Fourth Amendment circumstances in Bivens itself, the due
process/equal protection/cruel and unusual punishment federal prison
context in Carlson, and the due process/equal protection employment
23
discrimination context in Passman. Had cases since Passman and
Carlson weakened these cases’ holdings or cast doubt on their reasoning,
this information would be important in our determination of their
persuasive value. As it is, Bivens, Carlson, and Passman remain to
persuade us or fail to persuade on their own terms.
A final federal case of note comes from the United States District
Court for the Northern District of Iowa which held a Bivens claim would
be recognized under Iowa law. McCabe v. Macaulay, 551 F. Supp. 2d
771, 785 (N.D. Iowa 2007). In McCabe, the plaintiffs brought Bivens
actions against the defendants, who were state police officers, under both
the Federal and State Constitutions, arguing that we would recognize a
Bivens action under the Iowa Constitution. Id. at 784. The court
discussed our holding in Cunha v. City of Algona, 334 N.W.2d 591 (Iowa
1983), in which we rejected a Bivens action against a municipal
government. McCabe, 551 F. Supp. 2d at 784. The federal district court
explained that McCabe was distinguishable from Cunha, stating,
At most, Cunha rejects a direct cause of action under the
due process clause of the Iowa Constitution for monetary
damages against a local governmental entity for reasons
expressed in Monell [v. Department of Social Services, 436
U.S. 658, 98 S. Ct. 2018 (1978), a United States Supreme
Court case extending § 1983 liability to local governments].
It does not address whether there is an Iowa analogue to
Bivens under the common law when, as here, Iowa
government officials are alleged to have violated the Iowa
Constitution and the Iowa General Assembly has not
specifically provided a statutory remedy for such violations.
Id. at 785. The federal district court predicted that we would be
persuaded by Bivens and the state courts that have accepted Bivens
claims under their state constitutions and recognize a Bivens claim
under the Iowa Constitution. Id.; see Dorwart v. Caraway, 58 P.3d 128,
133–36 (Mont. 2002). Another federal district court agreed with McCabe
24
that we would recognize a Bivens action under the Iowa Constitution in
Peters v. Woodbury County, 979 F. Supp. 2d 901, 971 (N.D. Iowa 2013).
C. State Court Cases Considering Whether State
Constitutional Provisions Are Self-Executing for Purposes of Actions
for Money Damages.
1. Introduction. Many other state appellate courts have had
occasion to determine whether constitutional provisions in their state
constitutions are self-executing for purposes of claims for money
damages. See Dorwart, 58 P.3d at 133 & n.1 (listing states that had
recognized an implied cause of action as of 2002); Sharon N. Humble,
Annotation, Implied Cause of Action for Damages for Violation of
Provisions of State Constitutions, 75 A.L.R. 5th 619, 624–28 (2000). The
states that have considered the issue are nearly equally divided in
whether to recognize implied constitutional actions for damages 2 or
whether to decline to recognize such actions. 3
2Gay Law Students Ass’n v. Pac. Tel. & Tel. Co., 595 P.2d 592, 602 (Cal. 1979)
(recognizing action against a public utility for employment discrimination against
homosexual employees and cites Bivens but does not expressly discuss availability of
damages); Laguna Publ’g Co. v. Golden Rain Found. of Laguna Hills, 131 Cal. App. 3d
816, 854 (Ct. App. 1982) (recognizing action for damages under California Constitution);
Binette v. Sabo, 710 A.2d 688, 693 (Conn. 1998) (recognizing state Bivens action for
violations of search and seizure and personal liberty provisions); Newell v. City of Elgin,
340 N.E.2d 344, 349 (Ill. App. Ct. 1976) (recognizing state Bivens action for violation of
search and seizure); Moresi v. State, 567 So. 2d 1081, 1093 (La. 1990) (recognizing state
Bivens right for violations of search and seizure, but declining to award recovery
because state officials possessed qualified immunity); Widgeon, 479 A.2d at 928
(recognizing Bivens actions for search and seizure, deprivation of liberty, life, and
property); Manikhi v. Mass Transit Admin., 758 A.2d 95, 111 (Md. 2000) (recognizing a
claim for damages under equal protection provision of state constitution); Phillips v.
Youth Dev. Program, Inc., 459 N.E.2d 453, 457 (Mass. 1983) (approving of Bivens
actions generally, but dismissing the case because parties failed to argue state action);
Johnson v. Wayne County, 540 N.W.2d 66, 69–70 (Mich. Ct. App. 1995) (recognizing due
process right for damages under Michigan Constitution, but finding that factually
plaintiff failed to allege discriminatory legislation); Mayes v. Till, 266 So. 2d 578, 580
(Miss. 1972) (summarily holding right of damages available for violation of search and
seizure); Stringer v. State, 491 So. 2d 837, 849 (Miss. 1986) (Robertson, J., concurring)
(acknowledging “theoretical” possibility of Bivens remedy for damages for violation of
25
________________________
search and seizure and citing Mayes and noting, however, this remedy is “as ineffective
as a deterrent to police misconduct as it is inefficacious to protect and compensate the
citizen”); Dorwart, 58 P.3d at 137 (recognizing implied action for damages for violation
of right to privacy); Jackson v. Consol. Rail Corp., 538 A.2d 1310, 1319 (N.J. Super. Ct.
App. Div. 1988) (involving discrimination-based claim for damages under state
constitution, among other claims); Strauss v. State, 330 A.2d 646, 649 (N.J. Super. Ct.
Law Div. 1974) (recognizing Bivens claims under state constitution); Brown, 674 N.E.2d
at 1144 (recognizing Bivens-type claim of racial discrimination under New York
Constitution); Corum v. Univ. of N.C., 413 S.E.2d 276, 290 (N.C. 1992) (recognizing
Bivens action for violation of state free speech rights); Jones v. Mem’l Hosp. Sys., 746
S.W.2d 891, 893–94 (Tex. App. 1988) (recognizing implied damages action for violation
of Texas free speech right); Old Tuckaway Assocs. Ltd. P’ship v. City of Greenfield, 509
N.W.2d 323, 328 n.4 (Wis. Ct. App. 1993) (summarily recognizing Bivens actions under
the Wisconsin Constitution). But see Dolan v. Bay Const. Grp. Co., No. 924947, 1994
WL 879528, at *3 & n.3 (Mass. Super. Ct. Nov. 9, 1994) (dismissing plaintiff’s claim of
handicap discrimination under state constitution because of an adequate statutory
remedy); Smith v. Dep’t of Pub. Health, 410 N.W.2d 749, 789–90 (Mich. 1987)
(containing a full discussion of Bivens, but declining to find a viable Bivens action
under 1908 Michigan Constitution after adoption of 1963 Michigan Constitution).
3Dick Fischer Dev. No. 2, Inc. v. Dep’t of Admin., 838 P.2d 263, 268 (Alaska 1992)
(will only recognize a Bivens action in cases of “flagrant constitutional violations where
little or no administrative remedies are available”); Bd. of Cty. Comm’rs v. Sundheim,
926 P.2d 545, 553 (Colo. 1996) (agreeing that policy considerations weigh heavily
against judicial creation of a state Bivens action, but noting that it “may be appropriate
to recognize an implied state constitutional cause of action when there is no other
adequate remedy”); Garcia v. Reyes, 697 So. 2d 549, 550 (Fla. Dist. Ct. App. 1997) (per
curiam) (no implied cause of action for damages under due process clause); State Bd. of
Educ. v. Drury, 437 S.E.2d 290, 294 (Ga. 1993) (explaining court is not able to fashion a
Georgia Bivens remedy because of sovereign immunity); Figueroa v. State, 604 P.2d
1198, 1205 (Haw. 1979) (refusing to recognize state Bivens action because state’s
sovereign immunity would render any Bivens claim ineffective); St. Luke Hosp., Inc. v.
Straub, 354 S.W.3d 529, 537–38 (Ky. 2011) (declining to create a Bivens remedy
because adequate alternative remedies exist, but noting that the holding was limited to
the facts of this case); Moody v. Hicks, 956 S.W.2d 398, 402 (Mo. Ct. App. 1997)
(rejecting claim that state constitutional provision barring unreasonable search and
seizure is “self-executing” such that the court should imply an action for damages);
Rockhouse Mountain Prop. Owners Ass’n, Inc. v. Town of Conway, 503 A.2d 1385, 1388
(N.H. 1986) (declining to recognize a Bivens remedy for the equal protection and due
process claims in this case because damages not appropriate remedy for alleged
constitutional violation in municipal decision in road construction); Provens v. Stark
Cty. Bd. of Mental Retardation & Developmental Disabilities, 594 N.E.2d 959, 961 (Ohio
1992) (explaining that the court would imply a Bivens-type action if there were no
alternate remedies available); Hunter v. City of Eugene, 787 P.2d 881, 884 (Or. 1990)
(expressing reluctance to create any implied action for damages for violation of the state
constitution, and particularly finding itself in a poor position to say what would be just
compensation for violation of free speech rights); Jones v. City of Philadelphia, 890 A.2d
1188, 1215 (Pa. Commw. Ct. 2006) (not recognizing a Bivens claim under state
constitution for violation of search and seizure and arguing, among other reasons,
enormous financial burden and chilling effect on state officials); Bandoni v. State, 715
26
2. Overview of state supreme court cases holding state
constitutional provisions self-executing for purposes of money damages.
Among the better reasoned state supreme court decisions interpreting
whether state constitutional provisions are self-executing for purposes of
monetary damages are Dorwart, 58 P.3d 128; Brown, 674 N.E.2d 1129;
and Corum v. University of North Carolina, 413 S.E.2d 276 (N.C. 1992).
In Brown, claimants brought a class action against the State of
New York and other defendants for violating their rights to be free of
unreasonable searches and seizures and to equal protection under the
New York Bill of Rights. 674 N.E.2d at 1131. The claims arose out of an
incident in which every nonwhite male encountered by police during a
five-day “street sweep” was stopped, interrogated, and had their hands
and forearms inspected by the police after a white woman reported that a
black male robbed her at knife point. Id. at 1131–32. The claimants
asked the Court of Appeals of New York to recognize the action, which
the court called a “constitutional tort”—a cause of action for damages
under the constitution. Id. at 1132–33 (citing Bivens as well as
California, Maryland, Massachusetts, and Illinois cases recognizing state
constitutional actions for damages).
________________________
A.2d 580, 587 (R.I. 1998) (declining to find that a victims’ rights amendment to the
state constitution was self-executing); Lee v. Ladd, 834 S.W.2d 323, 325 (Tenn. Ct. App.
1992) (summarily noting that Tennessee courts do not recognize state Bivens actions);
Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 16 P.3d 533, 538
(Utah 2000) (limiting Bott v. DeLand, 922 P.2d 732, 739 (Utah 1996), which recognized
a state Bivens action for cruel and unusual punishment violations); Gray v. Rhoads, 55
Va. Cir. 362, at *6–8 (Va. Cir. Ct. 2001) (predicting Virginia Supreme Court would
decline to allow Bivens causes of action under state constitution and additionally
finding adequate alternative remedies). But see Smith v. Arthur C. Baue Funeral Home,
370 S.W.2d 249, 254 (Mo. 1963) (pre-Bivens case summarily recognizing implied action
for damages under state constitution provision ensuring the right to collectively
bargain).
27
The Brown court began its analysis by recognizing that New York
lacked a statute authorizing damages for violations of constitutional
rights, unlike 42 U.S.C. § 1981. Id. at 1137. If any damages remedy
existed, therefore, it must be implied. Id. The court recognized, however,
that the state constitutional provision must be self-executing in order for
a court to imply an action for damages. Id. Here, the court explained,
the rights to equal protection and to be free of unreasonable searches
and seizures were self-executing. Id.
Surveying the caselaw from other states, the Brown court
determined that, when state courts imply actions for damages under
their constitutions, they do so based on either (1) the reasoning in the
Restatement (Second) section 874A, (2) by analogy to Bivens, (3) common
law predecessors of the constitutional provision at issue, or (4) a
combination of the previous three. Id. at 1138; 4 see Widgeon, 479 A.2d
at 923–24 (justifying an implied action for damages under the Maryland
Constitution almost entirely based on common law predecessors—
4As described above, the Restatement (Second) states that when a statute or
constitutional provision protects a class of person by mandating or prohibiting certain
conduct but does not provide for a civil remedy for a violation, a court may provide an
injured member of the class with a right of action in tort if the court determines that the
remedy furthers the purpose or is needed to ensure the effectiveness of the provision.
Restatement (Second) § 874A & cmt. a, at 301; see Brown, 674 N.E.2d at 1138. The
New York Court of Appeals also noted that many state courts rely on the reasoning of
Bivens. Brown, 674 N.E.2d at 1138.
The underlying rationale for the decision, in simplest terms, in that
constitutional guarantees are worthy of protection on their own terms
without being linked to some common-law or statutory tort, and that the
courts have the obligation to enforce these rights by ensuring that each
individual receives an adequate remedy for the violation of a
constitutional duty.
Id. If the government fails to provide such a remedy, the courts must provide it
themselves. Id. The court explained that both Bivens and the Restatement (Second)
support one another and cited a number of state court decisions that have recognized
these principles and applied them to their own constitutions. Id.
28
specifically a trespass action for violation of right to be free of
unreasonable search and seizure guaranteed by the Magna Carta).
The Brown court also explained that the 1777 New York
Constitution’s provisions on equal protection and search and seizure are
both based on older, common law antecedents—in the case of
unreasonable search and seizure all the way back to the Magna Carta.
Id. at 1138–39. The availability of these common law antecedents
supports the position that the framers of the constitution anticipated
that such actions would remain available under the constitution. Id. at
1139. Additionally, the recorded debates of the New York Constitutional
Convention of 1938 and contemporaneous cases show the delegates
assumed that victims of unconstitutional actions could sue for damages.
Id.
The Brown court also held that implying a damages remedy is
consistent with the purposes of the constitutional provisions and is
“necessary and appropriate to ensure the full realization of the rights
they state.” Id. These provisions clearly define duties for government
officers of the state. Id. at 1140. The abuses suffered by the claimants
were exactly the sort of abuses that these constitutional provisions were
designed to prevent. Id. Damages, the court stressed, “are a necessary
deterrent for such misconduct. . . . [I]njunctive or declaratory relief [falls]
short.” Id. at 1141 (noting that because claimants were never charged
with a crime, excluding any evidence resulting from their interrogations
serves no deterrent purpose). Further, damages have been historically
recognized as the appropriate remedy for invasions of personal liberties.
Id.
Thus, the Brown court held that the plaintiffs had an implied right
of damages under the search and seizures and equal protection clauses
29
of the New York Constitution. Id. A dissent argued the court lacked
jurisdiction based on article VI, section 9 (stating the court has
jurisdiction to hear such claims as the legislature may provide) of the
New York Constitution and that sovereign immunity protected the state.
Id. at 1145–48, 1152–54 (Bellacosa, J., dissenting). The dissent further
criticized equating constitutional damages actions with common law
torts. Id. at 1148–52; see Gail Donoghue & Jonathan I. Edelstein, Life
After Brown: The Future of State Constitutional Tort Actions in New York,
42 N.Y.L. Sch. L. Rev. 447, 462–71 (1998) [hereinafter Donoghue]
(describing the Brown opinion and the dissent).
In Corum, the Supreme Court of North Carolina held there was a
direct cause of action under the North Carolina Constitution for damages
for a violation of a plaintiff’s free speech rights. 413 S.E.2d at 292.
Corum was a tenured professor at Appalachian State University who also
held the position of Dean of Learning Resources. Id. at 280. After a
dispute with other university officials regarding the location of a library
collection, Corum was removed from his position as Dean, allegedly in
retaliation for Corum’s vocal opposition to the move. Id. at 281–82.
Corum sought damages for violating North Carolina’s constitutional
provisions protecting the right to free speech, equal protection, and
“fundamental principles” of liberty. Id. at 280; see also Grant E.
Buckner, North Carolina’s Declaration of Rights: Fertile Ground in a
Federal Climate, 36 N.C. Cent. L. Rev. 145, 157, 163 n.98 (2014)
(describing North Carolina’s protection of “fundamental principles” as a
rich source of individual rights, including the right to earn a livelihood
through lawful business).
The Corum court emphasized the primacy of the Declaration of
Rights in article I of the North Carolina Constitution. 413 S.E.2d at 290.
30
According to the court, “The very purpose of the Declaration of Rights is
to ensure that the violation of these rights is never permitted by anyone
who might be invested under the Constitution with the powers of the
State.” Id. The court emphasized that “[w]e give our Constitution a
liberal interpretation in favor of its citizens with respect to those
provisions which were designated to safeguard the liberty and security of
the citizens in regard to both person and property.” Id.
A third illustrative case is Dorwart, 58 P.3d 128. In Dorwart, a
judgment debtor sued a county sheriff and sheriff’s deputies following
seizure of property alleging due process and search and seizure
violations under Federal and State Constitutions. Id. at 129–30. Law
enforcement had writs of execution related to judgment indebtedness,
but claimed nonexistent authority to search Dorwart’s home. Id. at 130.
The Dorwart court held that the plaintiff had causes of action under the
Montana Constitution for violation of the due process and search and
seizure provisions. Id. at 137.
The Dorwart court began its analysis by reviewing Bivens,
Passman, and Carlson. Id. at 133–36. The court noted in Bivens, the
United States Supreme Court had said “[h]istorically, damages have been
regarded as the ordinary remedy for an invasion of personal interests in
liberty. . . . [F]ederal courts may use any available remedy to make good
the wrong done.” Id. at 135 (alterations in original) (quoting Bivens, 403
U.S. at 395–96, 91 S. Ct. at 2004 (majority opinion)). The Dorwart court
noted that damage actions were endorsed by Restatement (Second)
section 874A. Id. The court cited various cases standing for the
proposition that damage actions for violations of individual rights were
recognized under English common law. Id. at 135–36; see Moresi v.
State, 567 So. 2d 1081, 1092 (La. 1990); Widgeon, 479 A.2d at 924. The
31
court rejected the argument that common law remedies were sufficient,
noting that common law causes of action intended to regulate the
relationships among and between individuals are not adequate to redress
the type of damage caused by the invasion of constitutional rights.
Dorwart, 58 P.3d at 137.
3. Overview of state supreme court cases rejecting view that state
constitutional provisions are self-executing. Several cases illustrate the
reasoning behind state supreme court cases which reject the notion that
state constitutional provisions are self-executing for purposes of actions
for money damages.
The Supreme Court of Oregon rejected a constitutionally based
claim for money damages in Hunter v. City of Eugene, 787 P.2d 881, 884
(Or. 1990). In Hunter, striking teachers argued their state constitutional
rights were violated by city employees. Id. at 882. The Oregon court
rejected an action for money damages under the free speech provisions of
the Oregon Constitution. Id. at 884. The court stated it was “very
reluctant to impose any civil responsibility in the form of damages for
violation of such a right, absent specific legislation or clear legislative
intent.” Id. at 883. The court declared that “Oregon’s Bill of Rights
provides no textual or historical basis for implying a right to damages for
constitutional violations.” Id. Lacking legislative guidance, the court
observed “this court is in a poor position to say what should or should
not be compensation for violation of a state constitutional right and what
limitations on liability should be imposed.” Id. at 884. The court noted
that federal legislation such as 42 U.S.C. § 1983 and the Federal Civil
Rights Act of 1964 provided at least some guidance for such claims on
the federal level. Id. at 883.
32
The Texas Supreme Court rejected an action for monetary damages
under the free speech and assembly clause of the Texas Constitution in
City of Beaumont v. Bouillion, 896 S.W.2d 143, 150 (Tex. 1995). The
Beaumont court emphasized cases which were decided based on the
presence or absence of alternative remedial schemes. Id. at 147–48. The
court noted that no one had presented evidence suggesting that at the
time the Texas Constitution was written, it was intended to provide an
implied right of damages for the violation of constitutional rights. Id. at
148. The court further emphasized the language of the Texas
Constitution, which suggested that acts in violation of constitutional
provisions are void. Id. at 149.
The Colorado Supreme Court rejected a cause of action for money
damages under the due process clause of the Colorado Constitution in a
real estate zoning matter in Board of County Commissioners v. Sundheim,
926 P.2d 545, 553 (Colo. 1996) (en banc). The Sundheim court
recognized that the United States Supreme Court found a cause of action
for money damages in Bivens, but emphasized more recent Supreme
Court cases that have declined to extend Bivens to other factual
contexts. Id. at 551–52; see Bush v. Lucas, 462 U.S. 367, 390, 103 S. Ct.
2404, 2417 (1983); Chappell, 462 U.S. at 305, 103 S. Ct. at 2368. While
the Sundheim court recognized there might be a state constitutional
cause of action when there was no adequate remedy, it noted the
legislature had established a framework for challenging a zoning
ordinance. 926 P.2d at 553. As a result, the Sundheim court found it
unnecessary to find a constitutionally based damage remedy in this case
but did not necessarily rule it out under different circumstances. Id.; see
also Dick Fischer Dev. No. 2, Inc. v. Dep’t of Admin., 838 P.2d 263, 268
(Alaska 1992) (denying damages for due process violation when other
33
administrative remedies available); Rockhouse Mountain Prop. Owners
Ass’n, Inc. v. Town of Conway, 503 A.2d 1385, 1389 (N.H. 1986)
(declining to find constitutional action for money damages under due
process or equal protection provisions of state constitution when
administrative procedures available); Shields v. Gerhart, 658 A.2d 924,
935–36 (Vt. 1995) (declining damages for free speech violation because of
legislatively created remedies); see also Lance R. Chism, Bivens-Type
Actions Under State Constitutions—Will Tennessee Give You a Remedy?,
30 U. Mem. L. Rev. 409, 425 (2000) (noting states not finding an action
for damages usually rely on alternative legislative remedy).
D. Iowa Caselaw on Self-Executing Constitutional Claims. The
Iowa Supreme Court has a long and storied tradition of deciding cutting-
edge cases well in advance of later decisions of the United States
Supreme Court and other courts. We were in advance of the United
States Supreme Court in In re Ralph, Morris 1, 6–7 (Iowa 1839), which
rejected the approach later adopted by the United States Supreme Court
in the infamous Dred Scott case. See Dred Scott v. Sanford, 60 U.S. 393,
454 (1857), superseded by constitutional amendment, U.S. Const. amend.
XIV. We advanced the cause of civil rights by refusing to countenance
segregation in education or public accommodations in Clark and Coger
many decades before the United States Supreme Court decided Brown v.
Board of Education, 347 U.S. 483, 495, 74 S. Ct. 686, 692 (1954). See
Coger v. Nw. Union Packet Co., 37 Iowa 145, 158 (1873); Clark v. Bd. of
Dirs., 24 Iowa 266, 277 (1868). We invalidated sodomy statutes early on
in State v. Pilcher, 242 N.W.2d 348, 359 (Iowa 1976), and we recognized
gay marriage rights in Varnum, 763 N.W.2d 862, 907, well in advance of
the United States Supreme Court decision in Obergefell v. Hodges, 576
U.S. ___, ___, 135 S. Ct. 2584, 2604–05 (2015).
34
Similarly, fifty years before the United States Supreme Court
decided Bivens, we decided several cases finding that the search and
seizure clause of the Iowa Constitution supported an action for damages
without implementing legislation. In McClurg, we reversed a directed
verdict in favor of the defendants on a claim for damages against an
officer who conducted a search without a warrant. 123 Iowa at 371, 98
N.W. at 882. We emphasized,
The right of the citizen to occupy and enjoy his home,
however mean or humble, free from arbitrary invasion and
search, has for centuries been protected with the most
solicitous care by every court in the English-speaking world,
from Magna [Carta] down to the present, and is embodied in
every bill of rights defining the limits of governmental power
in our own republic.
Id. The right to be free from arbitrary search and seizure, was also
embraced in statute and in the common law. Id. at 372, 98 N.W. at 882.
We returned to the question of damages in the search and seizure
context in Krehbiel v. Henkle, 142 Iowa 677, 121 N.W. 378 (1909). In
Krehbiel, the court noted that the right of citizens to be secure in person
and property against wrongful seizures and searches is “zealously
safeguarded and has express recognition in our State Constitution.” Id.
at 679–80, 121 N.W. at 379–80; see Iowa Const. art. I, § 8. The court
declared it was “thoroughly well settled” that “a violation of this right
without reasonable ground therefor gives the injured party a right of
action.” Krehbiel, 142 Iowa at 680, 121 N.W. at 380. In an appeal of the
case, the court affirmed an award of punitive damages in an unspecified
amount, noting that such damages were available for conduct that was
“wanton and reckless, and in disregard of the plaintiff’s rights.” Krehbiel
v. Henkle, 152 Iowa 604, 606, 129 N.W. 945, 945 (1911).
35
We considered the thoroughly well settled principle that violation of
article I, section 8 gives rise to a cause of action in State v. Tonn, 195
Iowa 94, 191 N.W. 530 (1923), abrogated by State v. Cline, 617 N.W.2d
277, 291 (Iowa 2000). In Tonn, we rejected the exclusionary rule for
search and seizure violations. Id. at 107, 191 N.W. at 536. The court in
Tonn, however, emphasized the rejection “would not detract one iota from
the full protection vouchsafed to the citizen by the constitutional
provisions,” observing, “[a] trespassing officer is liable for all wrong done
in an illegal search or seizure.” Id. at 106, 191 N.W. at 535. We further
said the right against unreasonable searches and seizures was “a sacred
right, and one which the courts will rigidly enforce.” Id.
McClurg and Krehbiel were cited with approval in Girard, 219 Iowa
at 148, 257 N.W. at 403. In Girard, consistent with the thoroughly well
settled principle of our prior cases, we straightforwardly declared, “[a]
violation of the state and federal constitutional provisions against the
unreasonable invasion of a person’s home gives the injured party a right
of action for damages for unlawful breaking and entering.” Id. Thus, a
damages action for constitutional violations of search and seizure under
the Iowa Constitution was thoroughly well settled in Iowa law decades
before the United States Supreme Court embraced the same concept in
Bivens. See Krehbiel, 142 Iowa at 680, 121 N.W. at 380.
While we held that search and seizure provisions of the Iowa
Constitution are self-executing in Girard, we came to a different
conclusion on article IV, section 10 of the Iowa Constitution regarding
the holding of elections to fill vacancies for office. In Claussen, we came
to the commonsense conclusion that this provision was not self-
executing. 216 Iowa at 1091, 250 N.W. at 200. The constitutional
provision itself failed to provide the necessarily detailed framework for
36
implementing elections, referring to situations which occurred when “no
mode is provided by the Constitution and laws for filling such vacancy”
in offices. Id. at 1083, 250 N.W. at 197 (quoting Iowa Const. art. IV,
§ 10). If the vacancy were to be filled by “election of the people,” the
General Assembly had to provide the machinery for the election. Id. at
1090, 250 N.W. at 200. The Iowa Supreme Court thus did not have the
legislative power to create the framework for a special election in the
absence of actions by other branches of government. Id. at 1091, 250
N.W. at 200.
In Pierce, we considered a mandamus claim to require the Iowa tax
commission to meet and exercise its power to fairly apportion taxes. 229
Iowa at 24–26, 294 N.W. at 241–42. In passing, we stated the uniformity
provisions of the Iowa Constitution “are not self-executing, but require
legislative action to make them effective.” Id. at 29, 294 N.W. at 243. In
context, however, the legislative action required referred to implementing
legislation to establish the machinery necessary to levy taxes. See id. It
did not relate to the question of whether a damage remedy could arise
when the implementation of the uniformity provision by the state violated
the uniformity clause. See id. Indeed, there is language in Pierce
supportive of Godfrey’s position—
[W]here the law imposes a duty upon a state officer and his
refusal or failure to perform it affects injuriously . . . the
personal or property right of an individual, it cannot be that
the court is without power or authority to administer an
appropriate remedy.
Id. at 32, 294 N.W. at 245 (quoting McKeown v. Brown, 167 Iowa 489,
498, 149 N.W. 593, 596 (1914)).
The next case of interest is Cunha, 334 N.W.2d 591. In that case,
a former prisoner sued Kossuth County for a due process violation. Id.
37
at 592–93. We held the plaintiff failed to state a claim on which relief
could be granted. Id. at 595. Cunha was narrowly interpreted by the
federal district court in McCabe, which regarded its holding as limited to
the question of whether a money damages remedy was available against
local government and did not have anything to do with potential
individual liability. McCabe, 551 F. Supp. 2d at 785. In short, Cunha is
similar to Meyer, where the Supreme Court declined to allow an action
against a government agency on the ground there would no longer be a
reason to bring actions against individual officers. See Meyer, 510 U.S.
at 485, 114 S. Ct. at 1005.
Finally, in Van Baale, a terminated police officer sought to avoid
the limitations on remedies provided by a civil service commission ruling
by bringing an action for money damages alleging a violation of equal
protection. 550 N.W.2d at 155. The plaintiff, however, failed to identify
any group of persons who were treated differently by the defendants, and
as a result, the equal protection claim failed as a matter of law. Id. at
157. We said, in dicta, that the equal protection clause was not self-
enforcing, citing Katzenbach v. Morgan, 384 U.S. 641, 648, 86 S. Ct.
1717, 1722 (1966). Van Baale, 550 N.W.2d at 157. Katzenbach,
however, involved a very different question than whether any provisions
of a constitution were self-enforcing. Instead, the question in
Katzenbach was whether congressional power to implement the Equal
Protection Clause of the Fourteenth Amendment was coextensive with
judicial interpretation of the Clause or whether Congress possessed
broader power to extend remedies and protections than the Supreme
Court might employ in the absence of congressional legislation. See 384
U.S. at 649, 86 S. Ct. at 1722. The question in Katzenbach had nothing
to do with stand-alone judicial power under the Fourteenth Amendment.
38
See id. And, the Supreme Court ultimately addressed the very issue in
Passman, a case not cited by Van Baale, and came to the opposite
conclusion. See Passman, 442 U.S. at 248–49, 99 S. Ct. at 2279.
E. Discussion.
1. Iowa constitutional tradition. We begin our discussion by
emphasizing the importance of the Bill of Rights in our scheme of
government. Unlike the federal constitutional framers who did not
originally include a bill of rights and ultimately tacked them on as
amendments to the United States Constitution, the framers of the Iowa
Constitution put the Bill of Rights in the very first article. See Iowa
Const. art. I. Further, the record of the 1857 Iowa Constitutional
Convention reflects a desire of its members
to put upon record every guarantee that could be legitimately
placed [in the constitution] in order that Iowa not only might
be the first State in the Union, unquestionably as she is in
many respects, but that she might also have the best and
most clearly defined Bill of Rights.
1 The Debates of the Constitutional Convention of the State of Iowa
100 (W. Blair Lord rep. 1867), http://www.statelibraryofiowa.org/
services/collections/law-library/iaconst. And, as noted by George Ells,
Chair of the Committee on the Preamble and Bill of Rights, “the Bill of
Rights is of more importance than all the other clauses in the
Constitution put together, because it is the foundation and written
security upon which the people rest their rights.” Id. at 103; see Short,
851 N.W.2d at 482.
While citation to a state motto may seem like parochial legal
boosterism, the early Iowa legislature adopted a distinctly libertarian
state motto: “Our liberties we prize, and our rights we will maintain.”
Iowa Code § 1A.1. Our founders did not cringe at the thought of
39
individual rights and liberties—they embraced them. “It would be
incongruous to hold that our constitution is a drier source of private
rights than the federal constitution.” Kelley Prop. Dev., Inc. v. Town of
Lebanon, 627 A.2d 909, 924 (Conn. 1993) (Borden, J., dissenting);
Corum, 413 S.E.2d at 290 (emphasizing the “primacy of the Declaration
[of Rights] in the minds of the framers” and that “[t]he very purpose of
the Declaration of Rights is to ensure that the violation of these rights is
never permitted by anyone who might be invested under the Constitution
with the powers of the State”). In Bivens, Justice Harlan declared that
the Bill of Rights was “intended to vindicate the interests of the
individual in the face of the popular will as expressed in legislative
majorities.” 403 U.S. at 407, 91 S. Ct. at 2010 (Harlan, J., concurring).
As further noted by Justice Harlan,
I do not think that the fact that the interest is protected by
the Constitution rather than statute or common law justifies
the assertion that federal courts are powerless to grant
damages in the absence of explicit congressional action
authorizing the remedy.
Id. at 403, 91 S. Ct. at 2008.
The view was well expressed by Chief Justice Hughes of the New
Jersey Supreme Court several decades ago—“Just as the Legislature
cannot abridge constitutional rights by its enactments, it cannot curtail
them through its silence, and the judicial obligation to protect the
fundamental rights of individuals is as old as this country.” King v. S.
Jersey Nat’l Bank, 330 A.2d 1, 10 (N.J. 1974).
We agree with Justice Harlan and Chief Justice Hughes. If these
individual rights in the very first article of the Iowa Constitution are to be
meaningful, they must be effectively enforced. That is the point Justice
Harlan made with such clarity in Bivens. According to Justice Harlan,
40
“the judiciary has a particular responsibility to assure the vindication of
constitutional interests.” Bivens, 403 U.S. at 407, 91 S. Ct. at 2010. It
would be ironic indeed if the enforcement of individual rights and
liberties in the Iowa Constitution, designed to ensure that basic rights
and liberties were immune from majoritarian impulses, were dependent
on legislative action for enforcement. It is the state judiciary that has the
responsibility to protect the state constitutional rights of the citizens.
See Corum, 413 S.E.2d at 290.
It should be noted that the Iowa Constitution of 1857 tended to
limit the power of the legislature while it protected the independence of
the court. The Constitution of 1846 provided that the legislature appoint
justices to the supreme court, but the Constitution of 1857 shifted that
power away from the legislature and vested it in the people. Compare
Iowa Const. art. V, §§ 3, 16 (1857), with Iowa Const. art. VI, § 3 (1846).
Further, the Iowa Constitution of 1857 reflected a healthy skepticism of
legislative power by structuring the legislative process by allowing only
one subject in an act and prohibiting special laws, prohibiting the
creation of corporations though special laws, prohibiting the state from
becoming a stockholder in corporations or from paying corporate debts
or liabilities, providing express limitations on banking, and by a
requirement that school funds be held in a segregated account. See Iowa
Const. art. III, §§ 29, 30 (1857); id. art. IV, §§ 1, 4–11; id. art. VII, § 1; id.
art. VIII, §§ 1, 3; id. art. IX:2, § 3. This effort to control legislative action
contrasts with the declarations of the founders regarding the robust
character of the Bill of Rights. See David Schuman, The Right to a
Remedy, 65 Temp. L. Rev. 1197, 1200 (1992) (noting popular distrust
shifted from the courts to the legislatures and thus a “second wave” of
state constitutions stripped “legislatures of many of their prerogatives
41
and vest[ed] increased power in the judiciary”); G. Alan Tarr, Interpreting
the Separation of Powers in State Constitutions, 59 N.Y.U. Ann. Surv. Am.
L. 329, 335 (2003) (describing the 19th century trend toward limiting
legislative power). We cannot imagine the founders intended to allow
government wrongdoers to set their own terms of accountability through
legislative action or inaction. See Susan Bandes, Reinventing Bivens: The
Self-Executing Constitution, 68 S. Cal. L. Rev. 289, 340–42 (1995).
As a rhetorical device, the defendants suggest that Bivens claims
for Iowa constitutional violations amount to a “new cause of action.” But
we face an old problem, not a new problem. The old problem is whether
courts have the power to provide an appropriate remedy for
constitutional wrongs.
The notion that unconstitutional actions by government officials
could lead to compensatory and exemplary damages was well established
in English common law. In the highly publicized and notorious related
cases of Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (C.P.), and Huckle v.
Money, (1763) 95 Eng. Rep. 768 (C.P.), the English courts considered
cases arising out of unlawful searches and seizures conducted by Lord
Halifax in an attempt to uncover the publishers of a caustic tract critical
of the government in a newspaper. See William W. Greenhalgh & Mark
J. Yost, In Defense of the “Per Se” Rule: Justice Stewart’s Struggle to
Preserve the Fourth Amendment’s Warrant Clause, 31 Am. Crim. L. Rev.
1013, 1025 (1994). In these cases, the juries awarded substantial
damages of £ 1000 and £ 300 pounds respectively. Wilkes, 98 Eng. Rep.
at 499; Huckle, 95 Eng. Rep. at 768.
In Wilkes, the plaintiff’s attorneys argued the actions of Halifax
were an “outrage” and “wound” on the constitution. William J. Cuddihy,
The Fourth Amendment: Origins and Original Meaning 602–1791 447
42
(2009). The Wilkes court recognized the damages awarded by the jury
exceeded the injury. Wilkes, 98 Eng. Rep. at 498. According to the
court, however,
a jury have it in their power to give damages for more than
the injury received. Damages are designed not only as a
satisfaction to the injured person, but likewise as a
punishment to the guilty, to deter from any such proceeding
for the future, and as proof of the detestation of the jury to
the action itself.
Id. at 498–99.
In Huckle, the amount of damages awarded was fifteen times the
actual damages. The Court of the King’s Bench declared,
[T]he personal injury done to [Huckle] was very small, so that
if the jury had been confined by their oath to consider the
mere personal injury only, perhaps [£] 20 damages would
have been thought damages sufficient; but the small injury
done to the plaintiff, or the inconsiderableness of his station
and rank in life did not appear to the jury in that striking
light in which the great point of law touching the liberty of
the subject appeared to them at the trial . . . . I think they
have done right in giving exemplary damages. To enter a
man’s house by virtue of a nameless warrant, in order to
procure evidence, is worse than the Spanish Inquisition; a
law under which no Englishman would wish to live an hour;
it was a most daring public attack made upon the liberty of
the subject.
Huckle, 95 Eng. Rep. at 768–69.
Another similar English case arising from Lord Halifax’s
indiscriminate searches was Entick v. Carrington, (1765) 95 Eng. Rep.
807 (C.P.), cited by the United States Supreme Court as a “monument of
English freedom” and considered to be “the true and ultimate expression
of constitutional law.” Boyd v. United States, 116 U.S. 616, 626, 6 S. Ct.
524, 530 (1886), overruled in part on other grounds by Warden v. Hayden,
387 U.S. 294, 302, 87 S. Ct. 1642, 1647–48 (1967). The jury returned a
special verdict for Entick in the amount of £ 300 if the search was
43
unlawful, a verdict which was affirmed by the court. Entick, 95 Eng.
Rep. at 811, 818. Entick has been referred to as “perhaps the most
important of all constitutional law cases to be found in the law reports of
England; for it gave security under the law to all who may be injured by
the torts of government servants.” E.C.S. Wade, Liability in Tort of the
Central Government of the United Kingdom, 29 N.Y.U. L. Rev. 1416, 1416–
17 (1954). All told, in cases arising out of the illegal searches and
seizures associated with Lord Halifax, a total of £ 5700 was paid, a
substantial sum of money in those days. George C. Thomas III,
Stumbling Toward History: The Framers’ Search and Seizure World, 43
Texas Tech. L. Rev. 199, 213–14 (2010).
It is thus not surprising that Justice Harlan noted in Bivens that
“[h]istorically, damages have been regarded as the ordinary remedy for
an invasion of personal interests in liberty.” Bivens, 403 U.S. at 395, 91
S. Ct. at 2004; see also Widgeon, 479 A.2d at 924 (emphasizing
application of English precedents). According to Justice Harlan,
contemporary modes of thought at the time of the United States
Constitutional Convention reflected “modes of jurisprudential thought
which appeared to link ‘rights’ and ‘remedies’ in a 1:1 correlation.”
Bivens, 403 U.S. at 400 n. 3, 91 S. Ct. at 2007 n.3; see John C. Jeffries,
Jr., Disaggregating Constitutional Torts, 110 Yale L.J. 259, 281 (2000)
(“Rights cannot sensibly be crafted apart from remedies . . . .”).
Indeed, in one of our older precedents, we cited Entick using not
only a law book citation but a citation from Howell’s State Trials, a
popular compendium of English state law cases. See Sanders v. State, 2
Iowa 230, 239 (1855). Thus, the territorial Supreme Court of Iowa was
well aware of the practice of English courts to award damages for
constitutional violations. Older cases from other states suggest that
44
state courts contemporaneous with the Iowa Constitutional Convention
were well aware of search and seizure developments in England and
assumed that the state constitutional founders were well aware, too.
See, e.g., Lincoln v. Smith, 27 Vt. 328, 346 (1855) (citing Entick and
declaring the “controversy in England in relation to the validity of general
warrants was well understood by the framers of our state and United
States constitutions”); Fisher v. McGirr, 67 Mass. 1, 29 (1855) (stating
issue of illegal searches and seizures “had been much discussed in
England before the adoption of our constitution, and was probably well
understood by its framers”). Not surprisingly, there are a number of
early nineteenth century cases in which state courts imposed a damage
remedy for constitutional violations, including punitive damages. See,
e.g., Grumon v. Raymond, 1 Conn. 40, 44 (1814) (“It would open a door
for the gratification of the most malignant passions, if [the issuance of a
general warrant] by a magistrate should s[c]reen him from damages.”);
Simpson v. McCaffrey, 13 Ohio 508, 522 (1844) (en banc) (allowing
“smart money,” which is “damages beyond compensation” for search and
seizure violation); Jeffries v. Ankeny, 11 Ohio 372, 375 (1842) (permitting
damages for violation of right to vote). The notion that a constitutional
tort is somehow a creature of the twentieth century is thus incorrect.
Jeremy M. Christiansen, State Search and Seizure: The Original Meaning,
38 U. Haw. L. Rev. 63, 82–84 (2016) (citing cases showing between 1814
and 1923 numerous states recognized constitutional torts).
Further, in the common law regime, remedies at law—or
damages—were usually the first choice to remedy a protected right. It is
equitable remedies, not damage remedies, which reflected the innovation
in the common law. See Harold J. Berman, The Origins of Historical
Jurisprudence: Coke, Selden, Hale, 103 Yale L.J. 1651, 1687–88 (1994);
45
Thomas O. Main, Traditional Equity and Contemporary Procedure, 78
Wash. L. Rev. 429, 464–67 (2003). Equitable remedies were generally
thought to be available only after legal remedies were demonstrated as
inadequate. See Samuel L. Bray, The System of Equitable Remedies, 63
UCLA L. Rev. 530, 545 (2016).
The defendants’ ahistorical argument is thus upside down. The
availability of damages at law is thus an ordinary remedy for violation of
constitutional provisions, not some new-fangled innovation. “The very
essence of civil liberty certainly consists in the right of every individual to
claim the protection of the laws, whenever he receives an injury.”
Marbury, 5 U.S. at 163. The real question is thus not whether a new
cause of action is being created, but instead is whether the provision in
question is self-executing, thereby putting a court in a position to award
traditional damages.
2. Impact of Iowa Constitution article XII, section 1. Iowa
Constitution article XII—the last article in the document—is entitled
“Schedule.” Section 1 provides, “This constitution shall be the supreme
law of the state, and any law inconsistent therewith, shall be void. The
general assembly shall pass all laws necessary to carry this constitution
into effect.” Iowa Const. art XII, § 1.
Notably, section 1 uses the term “this” twice. “This” constitution
(and not any earlier constitution) shall be the supreme law of the State.
And the general assembly shall pass all laws necessary to carry “this”
constitution into effect. The double use of the term “this” in section 1
suggests a focus on transition issues and not a fundamental reworking of
the power of courts to fashion remedies.
The sections that followed in Article XII generally, but not always,
related to transition issues. Sections 2 through 14 of the original version
46
of Article XII dealt with various proceedings, fines inuring to the state,
bonds in force, elections of state officers, the meeting and makeup of the
general assembly, the crafting of judicial districts, the submission of the
Constitution to the people for approval, an election to strike the word
“white” from various provisions of the Constitution. See Iowa Const. art.
XII, §§ 2–14 (1857 original); Benjamin F. Shambaugh, The Constitutions
of Iowa 279–80 (1934) [hereinafter Shambaugh]. At the very end, an
unusual provision was tacked on, declaring that unless otherwise
directed by law, “the County of Mills shall be part of the sixth Judicial
District of the State.” Iowa Const. art. XII, § 15; see Shambaugh, at 342.
This latter provision has nothing to do with transition, and looks like a
special concession made to someone who was at the right place at the
right time.
The defendants contend that the sentence in section 1 that
provides, “The general assembly shall pass all laws necessary to carry
this constitution into effect” means that the provisions of the Iowa Bill of
Rights in article I are not self-executing but require legislative action to
be enforced. See Iowa Const. art. XII, § 1. Godfrey, on the other hand,
contends that article XII, section 1 only requires the general assembly to
pass laws “necessary” to carry “this” constitution in effect.
On this point, we agree with Godfrey. In context, we think the
clear meaning of article XII, section 1 is to require the general assembly
to put “this” new constitution into operation and to provide for the
transition from government under the prior constitution to the new
regime. The language in article I, section 1 was not meant to
dramatically undermine effective judicial enforcement of the Iowa Bill of
Rights by making remedies dependent upon legislative whim.
47
Further, a survey of the original 1857 Iowa Constitution
demonstrates the framers knew how to use language that required the
general assembly to act. There are several provisions of the constitution
that expressly require the general assembly to take certain actions to
implement it. 5
Such requirements of action by the general assembly are notably
absent from the Bill of Rights of article I of the Iowa Constitution with
two exceptions. The general assembly “may authorize” a jury of less than
twelve under article I, section 9. Iowa Const. art. I, § 9. Additionally, the
general assembly “may provide” that persons may be held to answer for a
criminal offense without the intervention of a grand jury. Id. art. I, § 11.
But other than these two provisions, nothing in the Iowa Bill of Rights
requires legislative action to ensure enforcement.
We think it clear that section 1 of the schedule article cannot
swallow up the power of the judicial branch to craft remedies for
constitutional violations of article I. The rights established in the Iowa
Bill of Rights are not established by legislative grace, but by the people in
5For example, article III, sections 34 and 35 provided that the general assembly
shall fix the number of senators “by law,” and shall “fix” the ratio of representatives.
Iowa Const. art. III, §§ 34 & 35. Article IV, section 5 stated the general assembly shall
provide for contested elections “in such manner as may be prescribed by law.” Id. art.
IV, § 5. Article IV, section 16 declared the Governor may remit fines and forfeitures in
such manner “as may be prescribed by law.” Id. art. IV, § 16. Article V, section 12
stated the general assembly shall “provide, by law” for the election of an attorney
general. Id. art. V, § 12. Article V, section 14, declared it is “the duty of the General
Assembly to provide for the carrying into effect of this [judicial] article.” Id. art. V, § 14.
Article V, section 6 declared district courts shall have jurisdiction “as shall be
prescribed by law.” Id. art. V, § 6. Article VIII, section 1 declared the general assembly
“shall provide, by general laws” for the organization of all corporations. Id. art. VIII, § 1.
Article IX, section 5 declared the general assembly “shall take measures for the
protection, improvement, or other disposition” of public land. Id. art. IX:2, § 5. Article
IX, section 7 declared that school funds may be distributed “as may be provided by the
General Assembly.” Id. art. IX:2, § 7. Article X, section 1 stated the general assembly
“shall provide by law” for the publication of proposed amendments to the constitution
and the election of delegates to the constitutional convention. Id. art. X, § 1.
48
adopting the constitution. The Iowa Bill of Rights was a big deal to the
framers. We divine no desire of the 1857 framers to prevent the Iowa
judiciary from performing its traditional role from a schedule article
requiring the general assembly to enact necessary laws for the transition
to the new constitutional government. See State v. Buckner, 121 A.3d
290, 298 (N.J. 2015) (noting a schedule article “contains various phase-
in provisions designed to facilitate the smooth transition to the 1947
constitution and several subsequent amendments” (quoting Robert F.
Williams, The New Jersey State Constitution at 197 (2d ed. 2012)). The
rights and remedies of the Bill of Rights are not subject to legislative
dilution as “there is no elasticity in the specific guaranty of the
Constitution.” Des Moines Joint Stock Land Bank of Des Moines v.
Nordholm, 217 Iowa 1319, 1367, 253 N.W. 701, 725 (1934) (Claussen,
C.J., dissenting). It would be a remarkable development to allow a
provision in the schedule article of the Iowa Constitution to eviscerate
the power of courts to provide remedies for violations of the people’s
rights established in article I, the article which the framers plainly
thought, bar none, contained the most important provisions in the Iowa
Constitution. 6
6A leading commentator of the Iowa Constitution, Benjamin F. Shambaugh,
notes that the proposed Iowa Constitution of 1844 contained an article XIII, he
describes as “a ‘Schedule’ for transition from Territorial to State organization.”
Shambaugh, at 153. Shambaugh further notes that the Iowa Constitution of 1846 also
had a schedule article, article XIII. Id. at 197. It provided that the Governor should
proclaim the time to hold the first general election within three months of the
constitution’s adoption, the Governor should set the date of the first meeting of the
general assembly, and that the first general assembly must meet within four months of
ratification. Id. at 197–98. With respect to the Iowa Constitution of 1857, Shambaugh
notes that article XII, also entitled “Schedule,” provided for election of officers under the
new constitution, a provision for submitting the constitution to the people for
ratification, and a provision for an election to strike the word “white” from the article on
the Right of Suffrage. Id. at 279–80. Shambaugh does not suggest that any of these
49
3. Standard for determining self-execution. The federal standard
for self-execution was described in Davis—
A constitutional provision may be said to be self-executing if
it supplies a sufficient rule by means of which the right given
may be enjoyed and protected, . . . and it is not self-
executing when it merely indicates principles . . . .
. . . In short, if [it is] complete in itself, it executes
itself.
179 U.S. at 403, 21 S. Ct. at 212. Ordinarily, a self-executing provision
does not contain a directive to the legislature for further action.
Convention Ctr. Referendum Comm. v. Bd. of Elections & Ethics, 399 A.2d
550, 552 (D.C. 1979). A provision is self-executing when it takes effect
immediately “without the necessity for supplementary or enabling
legislation.” Brown, 674 N.E.2d at 1137; see also Corum, 413 S.E.2d at
289.
4. Application of self-execution standard to due process claims
involving liberty and property interests. The United States Supreme Court
considered whether claims under the Due Process Clause of the Fifth
Amendment of the United States Constitution were enforceable in a
Bivens action in Passman, 442 U.S. at 230, 99 S. Ct. at 2269. The
Supreme Court concluded that they were. Id. at 244, 99 S. Ct. at 2276.
Instead of using the term “self-execution,” however, the Passman Court
considered whether the plaintiff had a “cause of action,” due to how the
case was decided below and argued before the Court. Id. at 232, 99
S. Ct. at 2270. The Court concluded the ambiguous term “cause of
action” meant, in Passman, whether the plaintiff had a judicially
enforceable right under the Due Process Clause of the Fifth Amendment,
________________________
“Schedule” articles had dramatic implications for the scope of the rights and remedies
established in article I of the any of the Iowa Constitutions.
50
a meaning essentially analogous to asking whether the Due Process
Clause was self-executing. Id. at 239, 99 S. Ct. at 2274. The Court
declared that for the rights guaranteed in the Constitution to be more
than mere wishes or requests, litigants must be able to enforce those
rights in the courts when there is no other effective means to enforce
them. Id. at 242, 99 S. Ct. at 2275. The Court explained it had long
recognized equal protection actions under the Due Process Clause of the
Fifth Amendment. Id.; see Bolling v. Sharpe, 347 U.S. 497, 498–99, 74
S. Ct. 693, 694 (1954).
A number of state supreme courts, both before and after Passman,
have come to the same conclusion, usually utilizing more conventional
self-execution language. See Feldman v. City of Chicago, 2 N.E.2d 102,
105 (Ill. 1936) (holding due process is self-executing and needs no
statutory enactment); Ashton v. Brown, 660 A.2d 447, 462 (Md. 1995);
Widgeon, 479 A.2d at 923 n.5, 930; In re Wretlind, 32 N.W.2d 161, 167
(Minn. 1948) (holding due process clause requires no legislation for
enforcement); State v. Kyle, 65 S.W. 763, 767 (Mo. 1901) (due process
clause is addressed to the courts, not the legislature); Dorwart, 58 P.3d
at 136; Remley v State, 665 N.Y.S.2d 1005, 1008 (Ct. Cl. 1997) (holding
due process clause self-executing); see also Old Tuckaway Assocs. Ltd.
P’ship v. City of Greenfield, 509 N.W.2d 323, 328, 330 (Wis. Ct. App.
1993) (considering the merits of a direct due process claim).
We have found the due process clause of article I, section 9 of the
Iowa Constitution capable of enforcement in a number of settings that
did not involve damages. For instance, in Hensler v. City of Davenport,
we enforced the Iowa due process clause directly by finding that a
provision of a municipal ordinance which imposed a presumption of
failure to exercise reasonable parental control when a child is delinquent
51
violated a parent’s right to due process. 790 N.W.2d 569, 588–90 (Iowa
2010). We have held that procedural due process must be afforded when
an at-will public employee is discharged for reasons of dishonest,
immoral, or illegal conduct. Borschel v. City of Perry, 512 N.W.2d 565,
568 (Iowa 1994).
In short, we have found the due process clause of article I, section
9 enforceable in a wide variety of settings. Iowa courts have ensured, to
use Davis language, that “the right given may be enjoyed and protected.”
179 U.S. at 403, 21 S. Ct. at 212. The Iowa constitutional provision
regarding due process of law is thus not a mere hortatory command, but
it has been implemented, day in and day out, for many, many years. It
has traditionally been self-executing without remedial legislation for
equitable purposes, and there is no reason to think it is not self-
executing for the purposes of damages at law.
5. Application of self-executing standard to equal protection. In
Passman, the United States Supreme Court found that the Equal
Protection Clause of the Fifth Amendment of the United States
Constitution was a self-executing provision sufficient to support a
Bivens-type direct damages action. 442 U.S. at 244, 99 S. Ct. at 2276.
According to Passman, “the judiciary is clearly discernible as the primary
means” through which the right to equal protection may be enforced. Id.
at 241, 99 S. Ct. at 2275. The Passman Court quoted James Madison
stating, when presenting the Bill of Rights to Congress, that when rights
are incorporated into the Constitution, the judiciary will then consider
themselves the guardian of those rights and thus serve as “an
impenetrable bulwark against every assumption of power in the
Legislative or Executive; [the judiciary] will be naturally led to resist every
encroachment upon rights.” Id. at 241–42, 99 S. Ct. at 2275 (quoting 1
52
Annals of Congress 439 (1789)). The Equal Protection Clause was thus
intended to be, and understood to be, enforceable by the judiciary. See
id. at 244, 99 S. Ct. at 2276.
Similarly, in Brown, the Court of Appeals of New York held the New
York Constitution’s equal protection clause was self-executing. 674
N.E.2d at 1137. The Brown court explained that the right to equal
protection in the New York Constitution is “[m]anifestly” self-executing
because it “define[s] judicially enforceable rights and provide[s] citizens
with a basis for judicial relief against the State if those rights are
violated.” Id. The equal protection provision “imposes a clear duty on
the State and its subdivisions to ensure that all persons in the same
circumstances receive the same treatment. Id. at 1140.
A number of other states have found the equal protection
provisions of state constitutions to be self-executing. See, e.g., State v.
Planned Parenthood of Alaska, 35 P.3d 30, 44 (Alaska 2001) (considering
merits of direct equal protection claim); Unger v. Super. Ct., 692 P.2d
238, 239–43 (Cal. 1984) (en banc) (considering merits of direct equal
protection claim); Baker v. Miller, 636 N.E.2d 551, 558 (Ill. 1994) (holding
constitutional provision directly prohibiting discrimination in
employment was self-executing); Layne v. Superintendent, 546 N.E.2d
166, 168–69 (Mass. 1989) (considering the merits of a direct equal
protection claim); Smith v. Dep’t of Pub. Health, 410 N.W.2d 749, 798
(Mich. 1987) (considering the merits of a direct equal protection claim); In
re Town Highway No. 20, 45 A.3d 54, 67 (Vt. 2012) (holding article of
state constitution prohibiting discriminatory treatment to be self-
executing).
We, of course, have not hesitated to enforce the equal protection
clauses of the Iowa and Federal Constitutions. For example, in Varnum
53
we held that a law prohibiting same-sex marriage violated equal
protection because there was no justification for the classification which
substantially furthered any governmental objective. 763 N.W.2d at 906–
07. In Dudley, we held a statute which provided for less advantageous
treatment for indigent, acquitted criminal defendants than for ordinary
civil judgment debtors violated the Equal Protection Clause because
there was no rational basis for the classification. 766 N.W.2d at 617. In
In re S.A.J.B., we held a statute providing that indigent parents defending
involuntary parental rights termination proceedings under Iowa Code
chapter 232 could receive state-appointed counsel but indigent parents
defending involuntary parental rights termination proceedings under
chapter 600A could not have state-appointed counsel was a violation of
equal protection. 679 N.W.2d 645, 651 (Iowa 2004). In Glowacki v. State
Board of Medical Examiners, we held that a statute prohibiting the grant
of a stay in a suspension of a doctor’s license to practice medicine, but
permitting stays in other professional licensure investigations, violated a
doctor’s right to equal protection. 501 N.W.2d 539, 542 (Iowa 1993).
Our cases clearly show that our equal protection clause has always
been considered to be self-executing. We therefore reaffirm the equal
protection clause of the Iowa Constitution is self-executing.
IV. Preemption of Iowa Constitutional Claims by the Iowa
Civil Rights Act.
A. Introduction. The defendants suggest that any potential
constitutional claim that Godfrey may have is preempted by the Iowa
Civil Rights Act. At the outset, however, it is important to distinguish
between preemption and the question of adequacy of the statutory
remedy.
54
Preemption is a question of legislative intent. Ackerman v. Am.
Cyanamid Co., 586 N.W.2d 208, 211 (Iowa 1998). When the legislature
expressly preempts common law or other fields of law, there is no
problem of statutory interpretation. State v. Martinez, ___ N.W.2d ___,
___ (Iowa 2017). The fighting issue in the preemption area is when the
legislature is silent but has enacted a sufficiently comprehensive statute
to suggest an implied legislative intent to occupy the field or has enacted
a statute so in conflict with other legal claims that preemption must be
implied. See id. at ___.
The question of whether a statutory remedy might be adequate so
as to avoid the need for a direct constitutional claim has nothing to do
with legislative intent. It has everything to do with a judicial
determination of whether the court should not allow a direct
constitutional claim for damages to proceed because the court believes
an established statutory remedy is sufficient to vindicate the
constitutional interests of the people expressed in the civil liberties
provisions of state constitutions.
B. Positions of the Parties. Godfrey argues that Iowa
constitutional rights are not preempted by Iowa Code chapter 216.
Godfrey points to differences between constitutional claims and common
law claims, which may be preempted under the Iowa Civil Rights Act.
The sources of the rights are different and the available remedies are
different. Statutory rights may be abolished by the legislature, whereas
constitutional rights may only be abolished by constitutional
amendment.
Godfrey directs our attention to three cases from other
jurisdictions as persuasive authority standing for the premise that
constitutional rights are fundamentally different from, and thus may not
55
be preempted by, statutory rights. See Laird v. Ramirez, 884 F. Supp.
1265 (N.D. Iowa 1995); Shuttleworth v. Broward County, 639 F. Supp.
654 (S.D. Fla. 1986); Wintergreen Grp. LC v. Utah Dep’t of Transp., 171
P.3d 418 (Utah 2007). He also cites an Iowa case as standing for the
premise that a plaintiff may pursue all appropriate remedies
concurrently. See Gray v. Bowers, 332 N.W.2d 323, 324 (Iowa 1983).
Godfrey concludes by arguing that even if the Iowa Civil Rights Act
did preempt constitutional claims, it would only preempt his allegation of
discrimination based on sexual orientation, not his allegation of partisan
discrimination which is not covered by the Act.
The defendants argue that Iowa Code chapter 216 is the exclusive
remedy for conduct in violation of the Iowa Civil Rights Act. In support
of this argument, the defendants cite our cases holding that common law
torts are preempted by the Iowa Civil Rights Act. See, e.g., Greenland v.
Fairtron Corp, 500 N.W.2d 36, 38 (Iowa 1993); Vaughn v. Ag Processing,
Inc., 459 N.W.2d 627, 638 (Iowa 1990); Northrup v. Farmland Indus. Inc.,
372 N.W.2d 193, 197 (Iowa 1985). The defendants state these and
related cases stand for the rule that if discrimination is an element of a
claim, then the claim is not separate and independent from the Act and
is thus preempted.
Because the operative facts that give rise to constitutional claims
are the same facts as those that Godfrey relies on for his constitutional
claims, this proves, the defendants argue, the claims are not separate
and independent from the Iowa Civil Rights Act. Therefore, the
defendants conclude the constitutional claims are preempted. 7
7The defendants make no direct or indirect argument in their brief with respect
to the Federal Tort Claims Act, 28 U.S.C. §§ 2671–80, the Iowa Tort Claims Act, Iowa
Code chapter 669, or to the doctrine of sovereign immunity. The defendants’ briefing
56
C. Discussion. There is little doubt the legislature has the power
to supersede or abrogate common law remedies. Mark A. Geistfeld, Tort
Law in the Age of Statutes, 99 Iowa L. Rev. 957, 1004 (2014); Marie K.
Pesando, Change or Abrogation by Statute or Constitution, 15A Am. Jur.
2d Common Law § 15, at 741 (2011); Kimberly C. Simmons, Pre-emption
of Wrongful Discharge Cause of Action by Civil Rights Laws, 21 A.L.R. 5th
1 (1994).
We have held that the Iowa Civil Rights Act preempts some, but
not all, common law claims based on discrimination. In Northrup, for
example, we held that an employee who claimed his job was terminated
because he participated in an alcohol treatment plan did not have a
common law wrongful discharge claim. 372 N.W.2d at 195–97. We
explained that employment contracts are presumed to be at-will under
Iowa law and we had not previously recognized a public policy exception
to the rule. Id. at 196. The Iowa Civil Rights Act, however, allowed for
such an action after following its procedures to first seek administrative
relief. Id. We said, “It is clear from a reading of [the Act] that the
procedure under the civil rights act is exclusive, and a claimant asserting
a discriminatory practice must pursue the remedy provided by the act.”
Id. at 197. The employee also raised a claim of intentional infliction of
emotional distress related to the discriminatory practice—the employer
did not argue that the emotional distress action was also preempted by
the Iowa Civil Rights Act because we did not consider the issue. Id. at
197–98.
________________________
focuses solely on Iowa caselaw considering whether the Iowa Civil Rights Act preempts
common law claims and argues, by analogy, that Iowa constitutional claims should also
be preempted.
57
Subsequent to Northrup, we recognized that an at-will employee
could pursue an action for wrongful discharge if the discharge violated
public policy—but, if the wrongful acts complained of violated the Iowa
Civil Rights Act, the Act was the sole remedy for the wrongful discharge
claim. Vaughn, 459 N.W.2d at 637–38 (Iowa 1990); see also Smidt v.
Porter, 695 N.W.2d 9, 17 (Iowa 2005); Borschel, 512 N.W.2d at 567–68;
Hamilton v. First Baptist Elderly Hous. Found., 436 N.W.2d 336, 341
(Iowa 1989). We also held, however, that a breach of employment
contract claim based on the same facts as the claim of wrongful
discharge was not preempted by the Act. Vaughn, 459 N.W.2d at 638–
39; see also Grahek v. Voluntary Hosp. Co-op. Ass’n of Iowa, Inc., 473
N.W.2d 31, 33–34 (Iowa 1991) (rejecting argument that employee’s
breach of contract claim was merely an artfully pled claim of
discrimination). But see Polk Cty. Secondary Roads v. Iowa Civil Rights
Comm’n, 468 N.W.2d 811, 816–17 (Iowa 1991) (holding contractual claim
preempted by Iowa Civil Rights Act when breach was failure to follow
union’s arbitration agreement and dispute resolution provision of Act
rendered arbitration inappropriate).
In Greenland, we explained that when a common law claim
requires “proof of discrimination,” the claim is preempted by the Iowa
Civil Rights Act. 500 N.W.2d at 38. However, when a claim is separate
and independent, it is an incidental cause of action and is not
preempted. Id. In Greenland, we found the employee’s emotional
distress claim was preempted because the outrageous conduct
complained of was discrimination. Id. The employee’s assault and
battery claims, however, were not preempted because they were
“complete without any reference to discrimination.” Id. at 38–39; see
also Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 858 (Iowa
58
2001) (upholding Greenland in dismissing emotional distress claim and
rejecting the argument that Greenland was inconsistent with Northrup).
D. Discussion of Preemption of Constitutional Claims. We
have not heard a case concerning whether the Iowa Civil Rights Act
preempts otherwise valid constitutional claims. For that matter, we have
not heard a case concerning whether any legislative act can ever preempt
a constitutional claim. In our caselaw, we have indicated a distinction
between constitutional claims and claims brought under the Iowa Civil
Rights Act. As we noted in Sommers v. Iowa Civil Rights Commission, we
were not “examining civil liberties protected by the Constitution, but civil
rights which are enforceable claims rooted in the Iowa Civil Rights Act.”
337 N.W.2d 470, 472 (Iowa 1983). In several cases, we considered the
merits of constitutional claims brought in tandem with statutory claims
under the Iowa Civil Rights Act. See McQuiston v. City of Clinton, 872
N.W.2d 817, 832, 836 (Iowa 2015) (rejecting claims of equal protection
and due process on the merits, but remanding on the question of
pregnancy discrimination under the Iowa Civil Rights Act). In these
cases, however, the question of preemption does not appear to have been
raised.
The long-settled principle is that a constitution trumps legislative
enactments. See generally Marbury, 5 U.S. at 138 (“An act of congress
repugnant to the constitution cannot become a law.”); Baldon, 829
N.W.2d at 803–10 (Appel, J., concurring) (describing the process of
enacting state constitutions after independence and emphasizing the
importance of state constitutions in the federal system). See generally
Walt Cubberly, New Foundations for Constitutional Adjudication in State
Court, 24 App. Advoc. 425 (2012) (exploring classic philosophical
problems with constitutional review in the context of state
59
constitutionalism). A basic premise of our constitutional system is that
popular whim may not override the individual rights guaranteed by the
Constitution. Cf. Cox v. Louisiana, 379 U.S. 559, 562, 85 S. Ct. 476,
479–80 (1965). Under the Iowa Constitution, a constitutional right may
not be altered by ordinary legislation, but the constitution may be
amended according to the procedures for amendment in article 10. Iowa
Const. art. X, §§ 1–3.
If we held that a statute might preempt an otherwise valid
constitutional action, this would in effect grant ordinary legislation the
power to cabin constitutional rights. The Iowa Constitution would no
longer be the supreme law of the state. See Iowa Const. art. XII, § 1.
The amendment process in article X of the Iowa Constitution would be
rendered superfluous. We thus refuse to apply classic preemption
doctrine to the question of whether a Bivens-type damage remedy is
available under the Iowa Constitution. See Greenway Dev. Co. v.
Borough of Paramus, 750 A.2d 764, 770 (N.J. 2000) (“A public entity may
not use a state statute . . . to abrogate a claimant’s constitutional
rights.”); Wintergreen Grp., 171 P.3d at 420 (“A constitutional cause of
action . . . is presumptively superior to and must displace any statutory
iteration that either conflicts with it or gives it less than full effect.”).
V. Judicial Inaction Due to Adequacy of Legislative Remedy.
A. Introduction. We now consider a question different than
preemption. As indicated above, the central question in a preemption
analysis is determining what the legislature intended when it enacted a
statute. On the issue of adequacy, the decision-maker is the court.
Specifically, the question here is whether the court believes the remedy
provided by the Iowa Civil Rights Act should be considered sufficiently
robust that the court should, as a matter of discretion, decline to allow
60
plaintiff to pursue a parallel direct constitutional claim for money
damages.
B. Due Process Claims Based Upon Liberty and Property
Interests. While much of Godfrey’s complaint focuses on discrimination
based on sex or sexual orientation, Godfrey also has alleged that his
property and liberty interests in employment and in his reputation have
been violated by the partisan motivation of the defendants. The claims
are based on alleged violations of procedural and substantive due
process.
The due process claims based on alleged partisan motivation in
depriving Godfrey of property and liberty interests contrary to due
process are not claims within the scope of the Iowa Civil Rights Act. As a
result, there is no basis to assert that Iowa Code chapter 216 provides an
adequate remedy to avoid the necessity of a free-standing damages claim.
See Passman, 442 U.S. at 247, 99 S. Ct. at 2278 (holding when
congressional staffer not in the competitive service not covered by Title
VII, equal protection damages remedy available); Knutson v. Sioux Tools,
Inc., 990 F. Supp. 1114, 1120 (N.D. Iowa 1998); Thompto v. Coborn’s Inc.,
871 F. Supp. 1097, 1111 (N.D. Iowa 1994). As a result, the district court
erred in dismissing Godfrey’s direct damages claim on these counts.
An amicus brief attacks the merits of Godfrey’s due process claims
as being “vague” and generally inadequate. The state defendants,
however, did not advance this question before the district court or on
appeal. One of the disadvantages of interlocutory appeal is the piecemeal
consideration of issues. Nonetheless, the question of the merits of
Godfrey’s property claim cannot be resolved at this time. It goes without
saying, of course, that we take no view on the merits of any due process
claim raised in this case.
61
C. Adequacy of Legislative Remedy Under the Iowa Civil
Rights Act. The Iowa Civil Rights Act provides a substantial remedy for
discrimination of various kinds. No one can doubt that it is a
substantial remedy, allowing recovery for back wages, front wages,
emotional distress, and attorneys’ fees. There is caselaw from other
states supporting the general principle that a constitutionally adequate
statutory remedy may be sufficient to allow a court to decline to permit a
parallel direct constitutional claim. See, e.g., Dilley v. Americana
Healthcare Corp., 472 N.E.2d 596, 603 (Ill. Ct. App. 1984); Provens v.
Stark Cty. Bd. of Mental Retardation & Developmental Disabilities, 594
N.E.2d 959, 965–66 (Ohio 1992). As noted by the Supreme Court of
Colorado, legislation implementing constitutional rights “is permissible
as long as it does not directly or indirectly impair, limit, or destroy the
rights that the executing . . . provision provides.” Cacioppo v. Eagle Cty.
Sch. Dist. Re–50J, 92 P.3d 454, 463 (Colo. 2004) (en banc). On this
issue, three members of the court conclude that the Iowa Civil Rights Act
does not preempt the plaintiff’s Bivens-type constitutional claims, while a
majority conclude that the district court properly dismissed Godfrey’s
Iowa constitutional claims based upon Iowa equal protection principles
because of the adequacy of remedies under the Iowa Civil Rights Act.
What follows is a discussion of why three members of the court conclude
the legislative remedy is inadequate and thus why the Bivens-type equal
protection claims should be allowed to proceed.
In considering whether we should consider the adequacy of the
Iowa Civil Rights Act for claims of discrimination in employment in
violation of the equal protection clauses of the Iowa Constitution, there
are two factors that give us pause. First, an independent constitutional
claim advances separate interests. Second, the Iowa Civil Rights Act
62
does not allow punitive damages. Ackelson v. Manley Toy Direct, L.L.C.,
832 N.W.2d 678, 689 (Iowa 2013).
A constitutional violation is different from an ordinary dispute
between two private parties. As Justice Harlan noted in Bivens,
“[I]njuries inflicted by officials acting under color of law, while no less
compensable in damages than those inflicted by private parties, are
substantially different in kind . . . .” Bivens, 403 U.S. at 409, 91 S. Ct. at
2011. When a constitutional violation is involved, more than mere
allocation of risks and compensation is implicated. The emphasis is not
simply on compensating an individual who may have been harmed by
illegal conduct, but also upon deterring unconstitutional conduct in the
future. As noted by one commentator, punitive damages are available to
“express sharp social disapproval” as well as prevent recurrence of
unconstitutional conduct. Thomas J. Madden et al., Bedtime for Bivens:
Substituting the United States as Defendant in Constitutional Tort Suits,
20 Harv. J. on Legis. 469, 489–90 (1983) (emphasis added). Additionally,
the United States Supreme Court noted that punitive damages “are
especially appropriate to redress the violation by a Government official of
a citizen’s constitutional rights.” Carlson, 446 U.S. at 22, 100 S. Ct. at
1473. Similarly, in Smith v. Wade, the Court emphasized that “society
has an interest in deterring and punishing all intentional or reckless
invasions of the rights of others.” 461 U.S. 30, 54, 103 S. Ct. 1625, 1639
(1983) (first emphasis added). Vindication of the social interest is
distinct from adequate compensation goals of tort law and most statutory
remedies, including those under Iowa Code chapter 216.
Bivens, Carslon, and Smith thus teach that a constitutional claim
is designed “to vindicate social policies which, by virtue of their inclusion
in the Constitution, are aimed predominantly at restraining the
63
Government as an instrument of popular will.” Rosalie Berger Levinson,
Recognizing a Damage Remedy to Enforce Indiana’s Bill of Rights, 40 Val.
U. L. Rev. 1, 11 (2005) (quoting Bivens, 403 U.S. at 404, 91 S. Ct. at
2008); see also Sommers, 337 N.W.2d at 472 (distinguishing between
civil liberties protected by the Constitution and civil rights claims which
are enforceable by statute). The focus in a constitutional tort is not
compensation as much as ensuring effective enforcement of
constitutional rights. Michael Wells, Punitive Damages for Constitutional
Torts, 56 La. L. Rev. 841, 858–62 (1996) [hereinafter Wells, Punitive]
(noting constitutional torts protect different interests and the focus on a
constitutional tort is not on compensation but on development of an
effective system of constitutional remedies). The harm to society is not
captured by a judgment that solely compensates a plaintiff for his injury.
See Michael Wells, Constitutional Remedies, Section 1983 and the
Common Law, 68 Miss. L.J. 157, 189 (1998). A gap thus exists between
the injury incurred by the plaintiff and the total harm to society caused
by a constitutional violation. See id. Constitutional torts and common
law torts thus protect different interests. Wells, Punitive, 56 La. L. Rev.
at 863.
A number of cases agree with the notion that constitutional rights
are distinguishable from common law or statutory claims. See Laird,
884 F. Supp. at 1284 (holding remedial scheme of social security act
designed to vindicate statutory rights not constitutional rights);
Wintergreen Grp., 171 P.3d at 422 (“[O]wing to its different lineage, a
constitutional cause of action can never be preempted by statute,
regardless of how fully the statute honors the contours of the
constitutional claim.”). Because the interests being vindicated are
different, parallel claims are appropriate. See Johnson v. Ry. Express
64
Agency, Inc., 421 U.S. 454, 461, 95 S. Ct. 1716, 1721 (1975) (noting that
remedies available under Title VII “although related, and although
directed to most of the same ends, are separate, distinct, and
independent” from claims of discrimination under 42 U.S.C. § 1981).
Consistent with the distinction between constitutional torts and common
law tort or statutory claims, federal courts have frequently held that
punitive damages are available in constitutional tort cases when no
compensatory damages are awarded, while punitive damages in other
cases are generally not available absent compensatory damages. See
William H. Volz & Michael C. Fayz, Punitive Damages and the Due
Process Clause: The Search for Constitutional Standards, 69 U. Det.
Mercy L. Rev. 459, 498 nn.188 & 189 (1992) (citing cases).
The difference between a purely private claim and a constitutional
claim which necessarily involves a strong social interest in enforcement
is illustrated by the importance of the availability of punitive damages.
The substantial traditional authority for the proposition that the
availability of individual liability for punitive damages is an important
factor in determining whether a court should permit a direct action for
money damages. In Huckle, the Lord Chief Justice conceded that the
actual damages were small, but defended the jury’s award of £ 300,
noting, “I think they have done right in giving exemplary damages.” 95
Eng. Rep. at 769. Similarly, in Ashby v. While, the jury awarded the
hefty sum of £ 200 for violation of the right to vote. (1703) 92 Eng. Rep.
126, 127–28. Historically, then, punitive damages played an important
role in the enforcement of individual rights against the government.
There is caselaw from the United States Supreme Court that
supports the importance of punitive damages in the panoply of
constitutional remedies. In Carlson, the Court noted the lack of
65
availability of punitive damages was an important factor in finding that a
remedial scheme was inadequate to protect constitutional rights. 446
U.S. at 22, 100 S. Ct. at 1473. The Carlson approach was consistent
with Frazier v. Parsons, where the Supreme Court of Louisiana declared
“the right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and
seizures . . . ,” would be a mockery if courts . . . failed to
inflict exemplary damages for the wanton abuse of the
personal liberty and private rights of property.
24 La. Ann. 339, 341 (La. 1872) (emphasis omitted).
Other authorities agree. For instance, in Dunbar Corp. v. Lindsey,
the Fourth Circuit noted that “[t]he underlying purpose of the Bill of
Rights is to protect the people from the power of the government.” 905
F.2d 754, 763 (4th Cir. 1990). Further, the Fourth Circuit noted that if a
Bivens-type action were not found, the claimant lacked any remedy
effective against individual defendants and for punitive damages. 8 Id.;
see also Taylor v. Bright, No. 00–6676, 2000 WL 1144624, at *2 (4th Cir.
Aug. 14, 2000) (per curiam) (citing lack of punitive damages or injunctive
relief under Federal Tort Claims Act as not barring § 1983 action).
Similarly, in Newell v. City of Elgin, the Illinois court noted the lack of
exemplary damages against a municipality in a statutory scheme as
being a factor in allowing a Bivens claim. 340 N.E.2d 344, 350 (Ill. App.
Ct. 1976). Conversely, it is sometimes said that an administrative
remedy was adequate because the plaintiff could recover punitive
8The Iowa Civil Rights Act allows for individual liability for supervisors. It is not
clear whether all of the defendants are supervisors. See Vivian v. Madison, 601 N.W.2d
872, 874 (Iowa 1999). To the extent the individual defendants are not “supervisors” of
Godfrey, they are not within the scope of the Iowa Civil Rights Act and there is no
adequate remedy as to them.
66
damages. Bishop v. Holy Cross Hosp. of Silver Spring, 410 A.2d 630, 632
(Md. Ct. Spec. App. 1980).
The necessity of the availability of punitive damages in light of the
social interests in enforcement of constitutional rights as contrasted to
private claims has support in modern caselaw. As noted in Bivens, a
government official acting unlawfully in the name of the state “possesses
a far greater capacity for harm than an individual trespasser exercising
no authority other than his own.” 403 U.S. at 392, 91 S. Ct. at 2002
(majority opinion). We recognize, however, that there is authority to the
contrary. See Provens, 594 N.E.2d at 965 (holding statutory remedies
adequate even though not equal to the other remedies that might be
available). But the social interest in enforcement of constitutional
claims. supported by punitive damages as in Wilkes, Huckle, and Entick,
demonstrates the distinctive nature of constitutional harms.
An amicus brief raises the concern about dampening the ardor of
the Governor and other public officers in the exercise of their duties. But
this argument, in fact, cuts in favor of a cause of action for damages.
History is replete with examples of powerful public figures who, in their
desire to do good, have trampled on the constitutional rights of the
people. As Justice Brandeis observed, “Experience should teach us to be
most on our guard to protect liberty when the government’s purposes are
beneficent.” Olmstead v. United States, 277 U.S. 438, 479, 48 S. Ct. 564,
572 (1928) (Brandeis, J., dissenting), overruled in part on other grounds
by Berger v. New York, 388 U.S. 41, 50–51, 87 S. Ct. 1873, 1879 (1967).
In any event, to the extent that a Bivens-type action might inhibit
their duties, the doctrine of qualified immunity is the appropriate vehicle
to address those concerns. The state courts that have considered
whether immunity applies in Bivens-type actions are divided. See, e.g.,
67
Moresi, 567 So. 2d at 1093 (holding qualified immunity applies); Corum,
413 S.E.2d at 291 (holding no qualified immunity). The issue of qualified
immunity, however, is not before the court today.
In conclusion, for the above reasons, we think the different nature
of the interests protected weighs in favor of allowing a Bivens-type claim
to go forward against the defendants. We do not find authority to the
contrary persuasive.
D. The Question of “Special Factors.” An amicus brief in this
case suggests that we should decline to find a direct monetary cause of
action in this case because of “special factors.” As the amici correctly
point out, the United States Supreme Court has developed a special-
factors doctrine which allows the Supreme Court to decline to permit a
direct damage action for a constitutional violation to go forward. See
United States v. Stanley, 483 U.S. 669, 678–84, 107 S. Ct. 3054, 3061–
64 (1987); Bush, 462 U.S. at 380, 103 S. Ct. at 2413. The question of
whether special factors are present under the United States Supreme
Court cases goes to the appropriateness of the remedy, not to the court’s
remedial power.
The special-factors doctrine is a standardless exception that
provides the court with a convenient escape hatch. In other words, a
Bivens claim exists except where a majority of the court finds it
inconvenient. To the extent it has any appeal, the special-factors
exception has some purchase when applied to the federal government’s
military operations. In Chappell, the Supreme Court held that because of
the unique disciplinary structure of the military, it would not allow a
Bivens-type action by an enlisted seaman who brought a discrimination
claim against superiors. 462 U.S. at 304, 103 S. Ct. at 2368. Further,
there is at least arguably a textual commitment to a different
68
constitutional regime arising under the powers of the President as
commander-in-chief.
But we see no basis for implementing a special-factors doctrine
here. First, there is a preservation problem. The issue of special factors
was not raised in the State’s appellate brief. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002) (declining to consider issue which was not
argued). Second, on the facts presented, we are not prepared to
announce the adoption of the amorphous, ad hoc special-factors
doctrine. Instead, as noted above, concerns about dampening the ardor
of executive officials should be addressed through other channels such
as the availability of qualified immunity.
VI. Conclusion.
For the above reasons, the holding of the district court in this
matter is reversed as to Counts VI and VII. We emphasize our holding is
based solely on the legal contentions presented by the parties. We
express no view on other potential defenses which may be available to
the defendants and no view whatsoever on the underlying merits of the
case. We hold only that the defendants are not entitled to summary
judgment on Counts VI and VII based on the legal contentions raised in
this appeal. Costs on appeal are to be taxed one-half to Godfrey and
one-half to the defendants.
AFFIRMED IN PART AND REVERSED IN PART.
Wiggins and Hecht, JJ., join this opinion. Cady, C.J., joins in part
and files a concurrence in part and dissent in part. Mansfield,
Waterman, and Zager, JJ., dissent.
69
#15–0695, Godfrey v. State
CADY, Chief Justice (concurring in part and dissenting in part).
I concur in the opinion of the court to the extent it would recognize
a tort claim under the Iowa Constitution when the legislature has not
provided an adequate remedy. I part ways with the majority opinion
because I find the Iowa Civil Rights Act (ICRA) provides that remedy here,
at least with respect to Christopher J. Godfrey’s claim against the State
for discrimination on the basis of sexual orientation.
Godfrey alleges the State discriminated against him on the basis of
his sexual orientation by harassing him and reducing his salary. These
claims are covered by the ICRA. See Iowa Code § 216.6(1)(a) (2013).
Thus, Godfrey may only assert an independent claim under the Iowa
Constitution, cf. Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 392, 91 S. Ct. 1999, 2002 (1971), if he can
establish the remedy provided by the ICRA is inadequate to vindicate his
constitutional rights, cf. id. at 407, 91 S. Ct. at 2010 (Harlan, J.,
concurring in judgment). Godfrey seeks punitive damages, but punitive
damages are not available under the ICRA. See City of Hampton v. Iowa
Civil Rights Comm’n, 554 N.W.2d 532, 537 (Iowa 1996) (“Our civil rights
statute does not allow for punitive damages.”).
The importance of punitive damages was an essential part of the
United States Supreme Court’s opinion in Carlson v. Green, 446 U.S. 14,
22, 100 S. Ct. 1468, 1473 (1980). In Carlson, a plaintiff alleged that his
due process, equal protection, and protection from cruel and unusual
punishment rights were violated because prison officials failed to provide
him with proper medical attention while he was in their custody. Id. at
16, 100 S. Ct. at 1470. The Court asked whether the Federal Tort
Claims Act (FTCA) provided the exclusive remedy for the plaintiff. Id. at
70
18–19, 100 S. Ct. at 1471. But because the FTCA explicitly barred
punitive damages, the Carlson Court found the FTCA “is that much less
effective than a Bivens action as a deterrent to unconstitutional acts.”
Id. at 22, 100 S. Ct. at 1473. The Court emphasized, without
qualification, that punitive damages are “especially appropriate to
redress the violation by a Government official of a citizen’s constitutional
rights.” Id.
Here, however, the remedies provided in the ICRA are robust, even
without punitive damages. I find these remedies suffice as an adequate
deterrent of any alleged unconstitutional conduct. First, as to the
reduction in salary, Godfrey makes no claim that an action under the
ICRA will not adequately provide him with compensatory damages.
Further, the ICRA includes a provision for attorney fees. See Iowa Code
§ 216.15(9)(a)(8). Obviously, attorney fees cannot replace punitive
damages in cases of physical invasion, assault, or violations of other
liberty interests, but their availability for a claim of monetary loss is an
important factor in assessing the adequacy of a statutory remedy. See
Carlson, 446 U.S. at 22, 100 S. Ct. at 1473. Regarding Godfrey’s claim of
harassment, it is true this is not solely for monetary loss. Instead,
Godfrey additionally claims emotional distress damages. But the ICRA
provides for this, too. See Iowa Code § 216.15(9)(a)(8); see also Dutcher
v. Randall Foods, 546 N.W.2d 889, 894 (Iowa 1996) (“[D]amages for
emotional distress are a component of ‘actual damages.’ ” (quoting
Chauffeurs, Teamsters & Helpers Local Union 238 v. Iowa Civil Rights
Comm’n, 394 N.W.2d 375, 383 (Iowa 1986))). Again, Godfrey makes no
claim that an action under the ICRA will not adequately compensate him
for damages relating to the alleged unconstitutional conduct. Thus, I
would find the ICRA an adequate remedy for these claims and would not
71
recognize an independent constitutional claim under these
circumstances.
In the appropriate case, a remedy of punitive damages may be
necessary to vindicate a plaintiff’s constitutional rights. But when the
claimed harm is largely monetary in nature and does not involve any
infringement of physical security, privacy, bodily integrity, or the right to
participate in government, and instead is against the State in its capacity
as an employer, the ICRA exists to vindicate the constitutional right to be
free from discrimination. While not providing punitive damages, it
provides full compensation and attorney fees. On these facts, I do not
believe an independent Bivens-type action is necessary for the sole
purpose of providing a punitive-damages remedy.
For these reasons, I concur in part and dissent in part.
Accordingly, the district court properly dismissed Count VIII
(discrimination based on sexual orientation against the State) and
Count IX (discrimination based on sexual orientation against the
individual defendants) to the extent the individual defendants are
employers or supervisors. It is unnecessary to create a constitutional
tort for these claims because adequate statutory remedies exist.
72
#15–0695, Godfrey v. State
MANSFIELD, Justice (dissenting).
I respectfully dissent.
I. Introduction.
Until today, we have never recognized direct claims under the Iowa
Constitution even for actual damages. Historically the Iowa Constitution
has been, and continues to be, a vital check on government
encroachment of individual rights. Our courts enforce that check by
invalidating and enjoining actions taken in violation of the constitution.
But we have heretofore indicated that damages claims require either
(1) legislative authorization or (2) a footing in the common law of torts,
contracts, or some other established common law doctrine. The appeal
before us presents neither.
In 1965, our general assembly passed the Iowa Civil Rights Act
(ICRA). See 1965 Iowa Acts ch. 121 (codified as amended at Iowa Code
ch. 216 (2009)). From the beginning, the ICRA has applied to “the state
of Iowa or any political subdivision, board, commission, department,
institution, or school district thereof.” Iowa Code § 105A.2(5) (1966).
Today, we learn that the general assembly need not have bothered.
Apparently, people who believed they had a civil rights claim against
Iowa state or local officials always had a money-damages cause of action,
with both actual and punitive damages available. It just took from 1857
until 2017 for someone to figure it out.
I disagree with the notion that constitutional monetary damage
claims are some kind of time capsule that the drafters of our constitution
buried in 1857 and that can only be unearthed now through the legal
acumen of this court. The time capsule hasn’t been found until now
because no one buried it in the first place. Our framers did not
73
anticipate that someone could simply walk into court with a
constitutional provision in hand and file a lawsuit to recover money,
including punitive damages. Thus, they provided in article XII, section 1,
“This constitution shall be the supreme law of the state, and any law
inconsistent therewith, shall be void. The general assembly shall pass all
laws necessary to carry this constitution into effect.” Iowa Const. art.
XII, § 1 (emphasis added).
This constitutional text forecloses the plaintiff’s argument and
should be the starting-point for analysis, so I will discuss it first (see
Part II below). I will then discuss the authority put forward by the
majority for the view that a private right of action exists under the Iowa
Constitution (see Part III). Upon examination, the cases cited by the
majority demonstrate only that we allow common law torts.
Thereafter, I will turn to a second line of analysis (see Part IV).
Even if constitutional monetary damage claims were available in Iowa
without legislative authorization or a common law basis, they would not
be available to remedy discrimination based on sexual orientation. That
is because the legislature has already adopted a comprehensive remedial
scheme to which the plaintiff has access. On this point, a majority of the
court shares my view.
The plaintiff has invoked that comprehensive scheme in the first
two counts of his petition, which were filed under the ICRA and are not
part of this appeal. Nothing we do today affects those counts. Still, we
are upholding the dismissal of all equal protection claims against the
State and against the individual defendants acting within the scope of
their employment.
74
Next, I will examine the lead opinion’s conclusion that there is a
right to recover punitive damages against the State of Iowa (see Part V). 9
Leading up to today’s decision, the State was the only defendant in this
case, and I expect that to continue after today’s decision. Meanwhile, the
premise of the lead opinion is that there is a constitutional right to sue
the State of Iowa under the Iowa Constitution for punitive damages in
appropriate cases. This would be a drastic turnabout in Iowa’s legal
history. We have never recognized a right to recover punitive damages
from the State in any circumstance. To do so without the State’s consent
would violate sovereign immunity. The State has never waived sovereign
immunity as to punitive damages, presumably because it believes that
taxpayer dollars should not be used to pay punitive damage awards as
opposed to funding State programs.
Finally, in the last part of this dissent, I will discuss what I believe
to be the limits of today’s ruling for this litigation, contrasting those
limits with the rather broad and uncertain implications of the case for
Iowa as a whole (see Part VI).
II. The Majority Incorrectly Downplays the Text of Article XII,
Section 1, Which Controls the Outcome Here.
Any logical analysis of the issues in this case should begin with the
relevant constitutional language in article XII, section 1. Unfortunately,
it takes the court until page 45 to discuss this provision.
Article XII, section 1 stands for two propositions. First, in the
event of a conflict between a law and the constitution, the constitution
9As I read it, the opinion concurring in part and dissenting in part takes no final
position on this issue.
75
wins. Second, the constitution is implemented through laws passed by
the general assembly.
To put it another way, the constitution has both negative and
positive force. On the negative side, the constitution is a brake that
invalidates contrary laws. On the positive side, the constitution
empowers the general assembly to enact any laws needed to achieve its
purposes.
In 1859, when the adoption of the Iowa Constitution was still fresh
in the minds of everyone, our court read the second sentence of
article XII, section 1 in precisely this manner:
The constitution provides that offenses of a certain
grade, shall be tried originally before justices of the peace,
and that the latter have exclusive original jurisdiction in
such cases. Constitution, Article 1, section 11. The
Constitution requires the legislature to pass all laws
necessary to carry the same into effect. Cons., Article 12,
section 1. For the purpose of carrying out this requirement
of the constitution, the legislature, at its last session, passed
an act reducing the punishment in cases of persons
convicted of petit larceny, so as to bring it within the
constitutional requirement, that such class of offenses be
prosecuted originally before justices of the peace. By the
combined force of the constitution, and the laws of the last
session, the district court was ousted of jurisdiction in such
cases. Session Laws of 1858, 55.
State v. Church, 8 Clarke 252, 254 (Iowa 1859).
A later case reiterates this point. In Duncan v. City of Des Moines,
we quoted both sentences of article XII, section 1 and explained, “Our
Constitution makers wanted to make sure that this would be the rule
adopted. It announced to the people, ‘We are turning the power of the
State over to the legislature, but turning it over under the conditions
named.’ ” 222 Iowa 218, 231, 268 N.W. 547, 553 (1936).
The majority overstates. It urges that without today’s decision, the
judicial branch would lack power “to craft remedies for constitutional
76
violations of article 1.” This ignores the first sentence of article XII,
section 1, which indicates that the Iowa Constitution, including the bill
of rights, is supreme and inconsistent laws are void. We enforce this
negative check on a regular basis, invalidating actions taken by state and
local governments under color of law. And as part of this negative check
we have crafted remedies, such as the exclusionary rule and declaratory
and injunctive relief, implementing the basic directive of article XII,
section 1 that unconstitutional acts are void.
What we have not done in the past 160 years is to go beyond
declaring unconstitutional actions “void,” which we are authorized to do
by the first sentence, and assume the legislature’s role under the second
sentence. Thus, we have never before permitted damages lawsuits for
alleged constitutional violations to go forward in the absence of
underlying legislative authority or a recognized common law cause of
action. It is simply stunning to me that the majority thinks we need to
start allowing such lawsuits today in order to avoid “dramatically
undermin[ing] effective judicial enforcement of the Iowa Bill of Rights.”
Has judicial enforcement been lax up until now?
Rhode Island has the same provision as article XII, section 1 in its
constitution and its supreme court has read it the same way as I do. See
R.I. Const. art. VI, § 1; Bandoni v. State, 715 A.2d 580 (R.I. 1998). In
Bandoni, the plaintiffs sought to bring a damages action for alleged
violations of a victims’ rights provision contained in the Rhode Island
Constitution. Id. at 583.
The extensive discussion that we have given to this issue
alone indicates the enormous danger of judicially creating a
cause of action when both the constitutional framers and the
members of the General Assembly had the same opportunity
to create a remedy and yet declined to do so. Instead we are
of the opinion that the creation of a remedy in the
77
circumstances presented by this case should be left to the
body charged by our Constitution with this responsibility.
See R.I. Const. art. 6, sec. 1 (“The general assembly shall
pass all laws necessary to carry this Constitution into
effect[.]”). In this forum the myriad complex issues
presented by the imposition of liability can be fully debated
in public. . . .
....
Under our form of government, . . . the function of
adjusting remedies to rights is a legislative responsibility
rather than a judicial task, and up until the present time the
Legislature has not provided a remedy for those instances in
which officials fail to inform crime victims of their rights.
Id. at 595–96.
The equal protection clause in the Michigan Constitution ends with
language similar to the second sentence of article XII, section 1. It
provides, “The legislature shall implement this section by appropriate
legislation.” Mich. Const. art. I, § 2. Relying on this language, the
Michigan Supreme Court held that a plaintiff who allegedly had been a
victim of racial discrimination could not pursue a direct action under the
Michigan equal protection clause. See Lewis v. State, 629 N.W.2d 868,
868, 872 (Mich. 2001). The court reasoned,
On its face, the implementation power of Const. 1963,
art. 1, § 2 is given to the Legislature. Because of this, for
this Court to implement Const. 1963, art. 1, § 2 by allowing,
for example, money damages, would be to arrogate this
power given expressly to the Legislature to this Court.
Under no recognizable theory of disciplined jurisprudence do
we have such power.
Id. at 871. Noting the distinction blurred by the majority in this case,
the Michigan Supreme Court added,
[O]ur holding should not be construed as a demurral to the
traditional judicial power to invalidate legislation or other
positive governmental action that directly violates the equal
protection guarantee of Const. 1963, art. 1, § 2. There is
obviously a distinction between a judicial decree invalidating
unconstitutional governmental action and the adoption of
judicially created doctrines that effectively serve as de facto
statutory enactments to implement Const. 1963, art. 1, § 2.
78
Id. at 871–72 (footnote omitted).
During the debates on adoption of the 1857 Constitution, the
delegates appeared to recognize that constitutional damages suits
against the State required separate authorization. At one point the
delegates discussed adding language authorizing damage suits against
the State if the State took away privileges or immunities it had previously
granted. 1 The Debates of the Constitutional Convention of the State of
Iowa 104 (W. Blair Lord rep., 1857), www.statelibraryofiowa.org/services
/collections/law-library/iaconst. One delegate criticized the proposal as
not going far enough, observing that “a citizen cannot sue the State.
Where is he to go, then, to get his damages?” Id. at 105.
When it was then proposed that the provision be strengthened to
expressly state that “the State shall be liable to an action at law in any
court of record in this State,” id., another delegate responded,
I am opposed to the amendment . . . for I do not want to
ingraft anything upon the Constitution of the State of Iowa,
that will be liable to get the State into an innumerable
number of law suits. I do not believe in having the State
dragged into the courts of the State. I am opposed to this
thing here, and if anything of the sort is to be done, let the
legislature make the necessary provision for it.
Id. at 106. A third delegate commented, “I do not believe it would be
politic to make a constitutional law that will be the means of getting the
State into law suits, the end of which no man can foretell.” Id. A fourth
delegate spoke on “the impolicy of making the State a party to a suit at
law, in courts of justice[;] and every mind recognizes the impolicy of that
practice.” Id. at 110.
In the end, the provision was not adopted. Id. at 115. But the key
point is this: these framers understood the State generally could not be
79
sued, even on a constitutional claim, without express authorization from
the constitution itself or from the general assembly.
Consistent with the text of article XII, section 1 and this history,
we have said on a number of occasions that the provisions of the Iowa
Constitution are not self-executing. See Van Baale v. City of Des Moines,
550 N.W.2d 153, 157 (Iowa 1996) (“Although the equal protection clause
creates a constitutionally protected right, it is not self-enforcing. Equal
protection rights may be enforced only if the Congress or a legislature
provides a means of redress through appropriate legislation.” (citation
omitted)); State ex rel. Halbach v. Claussen, 216 Iowa 1079, 1091, 250
N.W. 195, 200 (1933) (“The Constitution . . . is in no sense self-executing.
Its mandates directed to the Legislature must be obeyed in accordance
with the provisions made thereby for that purpose.”); Edmundson v.
Indep. Sch. Dist., 98 Iowa 639, 646, 67 N.W. 671, 673 (1896) (“The
constitutional provision is not self-executing or self-enforcing. It is
purely a matter of defense to recovery upon a contract . . . .”); see also
Lough v. City of Estherville, 122 Iowa 479, 485, 98 N.W. 308, 310 (1904)
(“While a violation of the Constitution in the respect in question is to be
condemned, and the courts should interfere to prevent such violation
whenever called upon so to do, yet we are not prepared to adopt the
suggestion that an action for damages may be resorted to, as affording a
proper means of redress, where a violation has been accomplished.”).
The majority confuses the matter by conflating the first and second
sentences of article XII, section 1. When we said in the foregoing cases
that the Iowa Constitution was not self-executing, we did not mean that
it could not be raised as a defense (or a negative check, the phrase I
used earlier). In fact, Edmundson and Halbach make the point that the
Iowa Constitution may be raised as a “defense,” Edmundson, 98 Iowa at
80
647, 67 N.W. at 673, and “must be obeyed,” Halbach, 216 Iowa at 1091,
250 N.W. at 200. All we said is that you can’t bring an affirmative
lawsuit for damages for violating the Iowa Constitution absent statutory
authority or a common law tort. The majority cites no Iowa case that has
ever recognized such a claim.
The majority tries to sidestep the actual text of article XII, section 1
by citing to other provisions in the Iowa Constitution expressly giving the
general assembly authority to legislate in particular areas. I don’t follow
the majority’s argument. The majority can’t mean these are the only
areas where the general assembly can pass laws. So what is their point?
Typically, these other provisions serve one of two purposes. Some
specify subject areas where the legislature must pass laws, such as the
election of an attorney general and the organization of corporations. See,
e.g., Iowa Const. art. V, § 12; id. art. VIII, § 1. Others delineate areas
where the legislature has greater discretion than usual. See, e.g., id. art.
I, § 9; id. art. II, § 7. Yet, in addition, and at the same time, the
legislature is exclusively vested with plenary authority to pass whatever
other laws it deems “necessary” to implement the Iowa Constitution. See
id. art. XII, § 1.10
The majority also places considerable reliance on the heading
“Schedule” in article XII. See id. art. XII. Based on this heading, the
majority insists that the second sentence of article XII, section 1 is just a
temporary provision relating to the “transition” to the 1857 Constitution.
10For example, contrast the language of article V, section 14 (“It shall be the
duty of the general assembly to provide for the carrying into effect of this article, and to
provide for a general system of practice in all the courts of this state.”), with that in
article XII, section 1.
81
This contention likewise seems to me flawed. The first sentence of
article XII, section 1, Iowa’s supremacy clause, is clearly not a
transitional provision. See Varnum v. Brien, 763 N.W.2d 862, 875–76
(Iowa 2009) (discussing and relying upon the first sentence of article XII,
section 1). So why would the very next sentence of section 1 be
transitional? Significantly, a number of provisions of article XII have
been omitted from the codified version of our constitution with the note
that they were “transitional.” See Iowa Const. art. XII (codified), reprinted
in Iowa Code (2009) volume I at p. lvi. Section 1, however, is not among
them. See id.
A glance back at our 1846 Constitution further undermines the
majority’s position. Like the 1857 Constitution, the 1846 Constitution
had an article XIII entitled “Schedule.” Iowa Const. art. XIII (1846).
However, that article did not contain any counterpart to section 1. See
id. In fact, no counterpart to article XII, section 1 can be found
anywhere in the 1846 Constitution. The 1846 article XIII was limited to
eight sections, all of which truly were transitional. See id. A logical
conclusion is that our framers thought it was important for our 1857
constitution to include the nontransitory principles set forth in section 1
(after all, the United States Constitution has a supremacy clause), and
decided that article XII was a convenient place to do so.
The majority also highlights the use of the word “this” in both
sentences of article XII, section 1. I do not follow the point here, either.
Section 1 uses this syntax because it is referring to the constitution that
it is a part of, not some other constitution. “This” would be the normal
syntax and is used in the Supremacy Clause of the United States
Constitution. See U.S. Const. art. VI, cl. 2 (“This Constitution . . . shall
be the supreme Law of the Land . . . .”).
82
In the end, the majority offers no explanation for what the second
sentence of section 1 does mean, if it doesn’t have the meaning the
district court gave it.
III. The Majority Confuses Common Law Tort Damage Claims
With Damage Claims Based Only on the Iowa Constitution. The
Former Have Always Been Allowed; the Latter Have Not.
The majority asserts that we have previously allowed damage
lawsuits for violations of the Iowa Constitution to proceed without
legislative authorization. The majority is mistaken. What we have
permitted are traditional common law tort claims, such as trespass,
conversion, malicious prosecution, and abuse of process.
In McClurg v. Brenton, the mayor of Des Moines and “quite a
retinue of followers” barged in on plaintiff’s home in the middle of the
night without a warrant, based on suspicion that the plaintiff had stolen
a neighbor’s chickens. 123 Iowa 368, 369, 98 N.W. 881, 881–82 (1904).
“The matter being tried was the alleged trespass upon plaintiff’s
home . . . .” Id. at 374, 98 N.W. at 883. We held the plaintiff had
submitted enough evidence to get to the jury and reversed the defense
verdict for evidentiary errors, noting,
Even with a warrant, the law of this state forbids a search in
the nighttime, save upon a showing therefor, and upon
special authority expressed in the writ. Code, § 5555. A
right thus carefully guarded by the statute as well as by the
common law is not to be lightly disregarded.
Id. at 372, 98 N.W at 882. It takes considerable imagination, I believe, to
read McClurg as authorizing damage claims directly under the Iowa
Constitution.
Krehbiel v. Henkle involved a teacher who had to furnish a
classroom at her own expense with the assistance of some parents. 142
Iowa 677, 678–79, 121 N.W. 378, 379 (1909). (Times do not change.) A
83
disgruntled parent whose cheap pictures were not returned at the end of
the year caused a warrant to be issued, and the teacher’s residence was
entered and searched. Id. “Thereafter [the owner of the home] instituted
this action for damages, alleging that in suing out said warrant and
causing the search of his premises for alleged stolen property the [parent]
acted willfully, maliciously, and without probable cause.” Id. at 678, 121
N.W. at 379. We held on appeal that the case should have been
submitted to the jury because “the evidence tends very clearly to show
both malice and want of probable cause.” Id. at 680, 121 N.W. at 380.
Although we did mention article I, section 8 of the Iowa
Constitution, the cause of action was a recognized common law claim for
trespass and malicious prosecution. Id. at 679–80, 121 N.W. at 379.
Notably, the defendant was not a public official subject to article I,
section 8, but a private party—i.e., the disgruntled parent. Id. at 678–79,
121 N.W. at 379.
The third case relied on by the majority, Girard v. Anderson, also
was between private parties. 219 Iowa 142, 143, 257 N.W. 400, 400
(1934). The plaintiff bought a piano from the defendant but fell behind
on the payments. Id. Two of the defendant’s employees allegedly broke
and entered into the plaintiff’s home to repossess the piano. Id. at 144,
257 N.W. at 400. The plaintiff sued. Id. at 144–45, 257 N.W. at 401. We
held the plaintiff had triable claims as to both trespass and conversion.
Id. at 145, 257 N.W. at 401. The main issue in the case was whether the
defendant could rely on language in the piano sales contract to justify his
agents’ entry into the plaintiff’s home. Id. We decided otherwise:
We are not willing to adopt a rule that will permit the
seller under a contract of this kind to take the law into his
own hands by forcibly retaking possession of property sold,
where any resistance is offered by the purchaser.
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Id. at 149, 257 N.W. at 403.
In the course of our opinion in Girard, we quoted article I,
section 8, recognizing that it protects “the sacredness of the home.” Id.
at 148, 257 N.W. at 402. We also cited McClurg and Krehbiel and said,
“A violation of the state and federal constitutional provisions against the
unreasonable invasion of a person’s home gives the injured party a right
of action for damages for unlawful breaking and entering.” Id. at 148,
257 N.W. at 403. But as in those two cases, the actual cause of action
was an established one under the common law. Id. at 145, 257 N.W. at
401. To put it another way, these causes of action did not depend on the
existence of article I, section 8, but were traditional common law claims
and would have gone forward even if article I, section 8 were not part of
our constitution. The majority’s three cases need to be juxtaposed with
the caselaw already discussed where we said the provisions of the Iowa
Constitution are not self-executing. 11
IV. The ICRA Remedy for the Alleged Discrimination Is
Exclusive and This Court Lacks Authority to Devise a Different
Remedy That It Might Prefer.
Even when direct damage lawsuits have been permitted under
other state constitutions (i.e., constitutions that do not have a
counterpart to article XII, section 1), they are typically not allowed when
the legislature already has devised a remedial system for the same
11The court also mentions State v. Tonn, 195 Iowa 94, 191 N.W. 530 (1923),
abrogated on other grounds by State v. Cline, 617 N.W.2d 277, 291 (Iowa 2000). This,
however, was a criminal case where our court rejected the applicability of the
exclusionary rule in state criminal prosecutions. Id. at 107, 191 N.W. at 536. We did
state, “A trespassing officer is liable for all wrong done in an illegal search or seizure.”
Id. at 106, 191 N.W. at 535. We did not discuss the specific basis for liability—whether
it was trespass or the Iowa Constitution. The use of “trespassing” in our sentence
suggests the former. We also did not discuss whether liability meant damages liability.
85
wrong. Employment discrimination claims in Iowa are an area where the
legislature has devised such a remedial scheme.
In Iowa, the general assembly has directed that a person “claiming
to be aggrieved by an unfair or discriminatory practice must initially seek
an administrative relief,” and thereafter may bring a civil action under
the ICRA. See Iowa Code § 216.16(1), (2). This remedy is “exclusive.”
Smidt v. Porter, 695 N.W.2d 9, 17 (Iowa 2005) (“To the extent the ICRA
provides a remedy for a particular discriminatory practice, its procedure
is exclusive and the claimant asserting that practice must pursue the
remedy it affords.”); see Northrup v. Farmland Indus., Ind., 372 N.W.2d
193, 197 (Iowa 1985) (stating that “the procedure under the civil rights
act is exclusive, and a claimant asserting a discriminatory practice must
pursue the remedy provided by the act”); see also Channon v. United
Parcel Serv., Inc., 629 N.W.2d 835, 858 (Iowa 2001) (reiterating Northrup’s
holding and citing additional cases); Kingsley v. Woodbury Cty. Civil Serv.
Comm’n, 459 N.W.2d 265, 266 (Iowa 1990) (noting that “the exclusive
remedy for complainants asserting a discriminatory act lies with the
procedure provided in [the ICRA]”).
In the analogous federal context, courts have uniformly held that
Title VII of the federal Civil Rights Act of 1964 provides the exclusive
remedy for claims of discrimination in federal employment. See Brown v.
Gen. Servs. Admin., 425 U.S. 820, 835, 96 S. Ct. 1961, 1969 (1976).
Bivens actions for employment discrimination are therefore barred.
Zeinali v. Raytheon Co., 636 F.3d 544, 549 n.3 (9th Cir. 2011) (“Title VII
‘provides the exclusive judicial remedy for claims of discrimination in
federal employment.’ ” (quoting Brazil v. U.S. Dep’t of Navy, 66 F.3d 193,
197 (9th Cir. 1995))); Ethnic Emps. of Library of Cong. v. Boorstin, 751
F.2d 1405, 1415 (D.C. Cir. 1985) (“[F]ederal employees may not bring
86
suit under the Constitution for employment discrimination that is
actionable under Title VII.”).
The lead opinion glosses over the Supreme Court’s substantial
reluctance to coin new causes of action based on the federal constitution
post-Bivens. With nothing more than a string cite, the lead opinion
discounts over three decades of Supreme Court jurisprudence declining
to expand Bivens remedies beyond the specific circumstances of Bivens,
Davis, and Green. See Ziglar v. Abbasi, 582 U.S. ___, ___, ___ S. Ct. ___,
___, 2017 WL 2621317, at *12 (June 19, 2017) (“[T]he Court has made
clear that expanding the Bivens remedy is now a ‘disfavored’ judicial
activity.” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct. 1937,
1948 (2009))); Minneci v. Pollard, 565 U.S. 118, 120, 131, 132 S. Ct. 617,
620, 626 (2012) (rejecting Bivens action under Eighth Amendment
against employees of privately operated federal prison); Wilkie v. Robbins,
551 U.S. 537, 555, 127 S. Ct. 2588, 2600 (2007) (declining to allow
Bivens action by private landowner under Due Process Clause for Bureau
of Land Management interference with property rights); Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 63, 74, 122 S. Ct. 515, 517, 523 (2001)
(determining no Bivens remedy unavailable against a private corporation
operating a halfway house under government contract); F.D.I.C. v. Meyer,
510 U.S. 471, 486, 114 S. Ct. 996, 1006 (1994) (declaring that no Bivens
claim could be brought against a governmental agency); Schweiker v.
Chilicky, 487 U.S. 412, 429, 108 S. Ct. 2460, 2471 (1988) (stating no
Bivens claim available under Due Process clause for employees who were
denied Social Security benefits); United States v. Stanley, 483 U.S. 669,
686, 107 S. Ct. 3054, 3065 (1987) (declining to allow Bivens claim in
military context); Bush v. Lucas, 462 U.S. 367, 368, 103 S. Ct. 2404,
2406 (1983) (declining to allow Bivens claim under the First Amendment
87
for federal employee who was demoted); Chappell v. Wallace, 462 U.S.
296, 304, 103 S. Ct. 2362, 2368 (1983) (rejecting Bivens claim because
of special factors counseling hesitation in context of the military).
In general, the Supreme Court has determined that “[s]o long as
the plaintiff had an avenue for some redress, bedrock principles of
separation of powers foreclosed judicial imposition of a new substantive
liability.” Malesko, 534 U.S. at 69, 122 S. Ct. at 520; see also Minneci,
565 U.S. at 129, 132 S. Ct. at 625 (stating even though other remedies
may be “prove less generous” by capping damages, forbidding emotional
distress damages, or imposing procedural obstacles, it could not find a
“sufficient basis to determine state law inadequate”); Wilkie, 551 U.S. at
553, 127 S. Ct. at 2600 (“In sum, Robbins has an administrative, and
ultimately a judicial, process for vindicating virtually all of his
complaints.”).
Other state courts have followed the same reasoning in declining to
layer a state constitutional remedy on top of an existing state statutory
remedy. See Kelley Prop. Dev., Inc. v. Town of Lebanon, 627 A.2d 909,
922 (Conn. 1993) (“[W]e should not construe our state constitution to
provide a basis for the recognition of a private damages action for
injuries for which the legislature has provided a reasonably adequate
statutory remedy.”); see also Lowell v. Hayes, 117 P.3d 745, 753 (Alaska
2005) (“[W]e will not allow a constitutional claim for damages, ‘except in
cases of flagrant constitutional violations where little to no alternative
remedies are available.’ ” (quoting Dick Fischer Dev. No. 2, Inc. v. Dep’t of
Admin., 838 P.2d 263, 268 (Alaska 1992))); Katzberg v. Regents of Univ.
of Cal., 58 P.3d 339, 356 (Cal. 2002) (reasoning that the availability of
adequate alternative remedies “militates against judicial creation of” a
constitutional remedy); Bd. of Cty. Commr’s v. Sundheim, 926 P.2d 545,
88
553 (Colo. 1996) (en banc); Baker v. Miller, 636 N.E.2d 551, 559 (Ill.
1994); Rockhouse Mountain Prop. Owners Ass’n v. Town of Conway, 503
A.2d 1385, 1388 (N.H. 1986); Provens v. Stark Cty. Bd., 594 N.E.2d 959,
965–66 (Ohio 1992); Spackman ex rel. Spackman v. Bd. of Educ., 16 P.3d
533, 539 (Utah 2000) (“[W]e urge deference to existing remedies out of
respect for separation of powers’ principles.”); Shields v. Gerhart, 658
A.2d 924, 933 (Vt. 1995) (“We have been cautious in creating a private
damage remedy even where the Legislature has provided no alternative
civil remedy.”).
It is instructive to consider cases in which, as here, employment
discrimination was the alleged wrong. The Ohio and Illinois Supreme
Courts, as well as a well-reasoned federal district court opinion
interpreting New York law, have all concluded that when a plaintiff’s
constitutional employment discrimination claim can also be pursued
under the state’s civil rights statutes, no separate constitutional claim is
available.
Thus, in Provens v. Stark County Board, the Ohio Supreme Court
declined to recognize an independent cause of action under the Ohio
Constitution for compensatory and punitive damages for discrimination.
594 N.E.2d at 965–66. The plaintiff in Provens was a teacher at a state-
run school. Id. at 959–60. In her complaint, Provens alleged that
supervisors at the facility “had harassed, discriminated against, and
disciplined her,” and further retaliated against her because she had
initiated a lawsuit against employees of the board. Id. at 960. Provens
sought injunctive relief, compensatory damages, and punitive damages.
Id. The trial court granted summary judgment in favor of the state, in
part because “it would be inappropriate for the court to create a new
judicial remedy.” Id. at 961.
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On appeal, the Ohio Supreme Court affirmed. Id. at 966.
Although the court noted that Provens had not specified which of her
rights had allegedly been violated, after reviewing the record the court
determined “a significant basis for the allegations contained in plaintiff’s
complaint were harassment claims with racial connotations.” Id. at 964.
Relying on the United States Supreme Court decision in Bush, the court
reasoned that the relevant question was not “what remedy the court
should provide for a wrong that would otherwise go unredressed,” but
instead, “whether an elaborate remedial system that has been
constructed step by step, with careful attention to conflicting policy
considerations, should be augmented by the creation of a new judicial
remedy for the constitutional violation at issue.” Id. at 963 (quoting
Bush, 462 U.S. at 388, 103 S. Ct. at 2416–17). Accordingly, the court
pointed out that the Ohio civil rights act “does provide the plaintiff with
some meaningful available relief.” Id. at 963; see Ohio Rev. Code Ann.
ch. 4112 (West, Westlaw current through 2017 files 6, 8, and 9 of 132d
Gen. Assemb.). Specifically, under Ohio law, if the Civil Rights
Commission determines that an employer has engaged in an unlawful
discriminatory practice, the commission may order injunctive relief or
any other action “including, but not limited to, hiring, reinstatement, or
upgrading of employees with, or without, back pay.” Provens, 594
N.E.2d at 964 (quoting Ohio Rev. Code Ann. § 4112.05(G)). The court
further noted that the plaintiff may have rights under the state’s
collective bargaining laws. Id. at 965.
With these principles in mind, the Ohio Supreme Court concluded,
While the remedies provided the plaintiff here through
the administrative process of a hearing before the [Civil
Rights Commission] and through the arbitration process
under the collective bargaining agreement do vary from the
90
remedies that might be available through a civil proceeding,
such difference shall not be controlling where, in the totality,
it may be concluded that the public employee has been
provided sufficiently fair and comprehensive remedies. . . .
....
. . . [I]t is not incumbent upon this court to engage in the
type of comparative analysis of the relative merits of various
remedies that is invited by appellant. Rather, the more
appropriate course for this court is to defer to the legislative
process of weighing conflicting policy considerations and
creating certain administrative bodies and processes for
providing remedies for public employees such as appellant.
We hold, therefore, that public employees do not have
a private cause of civil action against their employer to
redress alleged violations by their employer of policies
embodied in the Ohio Constitution when it is determined
that there are other reasonably satisfactory remedies
provided by statutory enactment and administrative process.
Id. at 965–66.
Similarly, in Baker, the Illinois Supreme Court rejected an
employment discrimination claim for compensatory and punitive
damages brought directly under article I, section 17 of the Illinois
Constitution. 636 N.E.2d at 552, 559. The court noted at the outset
that the guarantees of that constitutional provision—freedom from
discrimination in housing and employment—had been legislatively
implemented through the Illinois Human Rights Act. Id. at 553. The
court recognized that the Act was the exclusive remedy in Illinois for
employment discrimination, and “[t]herefore, a covered employee [under
that Act] may not bring a private cause of action to recover damages for a
violation of his rights under article I, section 17.” Id. at 554. The main
issue in Baker was whether or not the plaintiff was covered under the
Act. See id. Hence, after concluding she was covered, the court
reasoned she was precluded from bringing a constitutional claim, in part
because Act provided the plaintiff with “a comprehensive and systematic
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mechanism for the investigation and disposition of discrimination
claims.” Id. at 559.
Likewise, in Muhammad v. New York City Transit Authority, the
court rejected the plaintiff’s attempt to constitutionalize her
discrimination claims against her employer, a public transit authority.
450 F. Supp. 2d 198, 209–12 (E.D.N.Y. 2006). The complaint raised
various claims under federal law, state law, and the New York
Constitution, several of which were subject to a pretrial motion to
dismiss. Id. at 202.
Regarding the state constitutional claim, the court noted that the
New York Court of Appeals had previously recognized a damages remedy
under the state’s equal protection clause in Brown v. State, 674 N.E.2d
1129, 1141 (N.Y. 1996). Muhammad, 450 F. Supp. 2d at 210–11.
However, as the federal district court explained, “the Court of Appeals
subsequently characterized Brown as creating only a ‘narrow remedy.’ ”
Id. at 211 (quoting Martinez v. City of Schenectady, 761 N.E.2d 560, 563
(N.Y. 2001)). “In Brown itself, neither declaratory nor injunctive relief
was available to the plaintiffs . . . . For those plaintiffs it was damages or
nothing.” Id. (quoting Martinez, 761 N.E.2d at 563). Hence, the district
court contrasted Brown with the potential avenues available to the
plaintiff in order to remedy employment discrimination—namely, New
York Human Rights Law. Id. at 212. The court concluded,
Defendant specifically notes that New York Human
Rights Law “prohibits discrimination in employment based
on religion, and expressly provides a private right of action
for an employee allegedly discriminated against on the basis
of his or her religion.” Future, similar constitutional
violations may be deterred if plaintiff successfully exploits
that avenue. Accordingly, recognition of a State
constitutional tort is unnecessary in this case to afford
plaintiff a remedy. [The claim] is, therefore, dismissed.
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Id. (citations omitted).
Along the same lines, other state courts have allowed
constitutional claims in the employment context only when there appears
to be no available statutory remedy. In Corum v. University of North
Carolina, the court indicated that the plaintiff had a direct damages
remedy against his employer under the state constitutional provision
protecting freedom of speech. 413 S.E.2d 276, 290 (N.C. 1992).
However, the court noted the “critical limitation[ ]” that the court “must
bow to established claims and remedies where these provide an
alternative to the extraordinary exercise of [the judiciary’s] inherent
constitutional power.” Id. at 291. Similarly, in Peper v. Princeton
University Board of Trustees, the court recognized the constitutional
cause of action, but only after concluding that the plaintiff’s private-
university employer was not a statutorily-defined “employer” the
applicable state discrimination laws. 389 A.2d 465, 474, 478 (N.J.
1978).
Maryland, which should be viewed as an outlier, has permitted
discrimination claims under the Maryland state constitution despite the
availability of a statutory remedy. See Manikhi v. Mass Transit Admin.,
758 A.2d 95, 110–11 (Md. 2000). However, such state constitutional
claims are subject to a statutory damages cap in the Local Government
Tort Claims Act, which has been found applicable and enforceable to
constitutional claims. See Espina v. Jackson, 112 A.3d 442, 462–63 (Md.
2015). Hence, even if we applied the Maryland approach in Iowa, the
statutory bars to recovery of punitive damages in Iowa’s government tort
laws would be applicable and enforceable.
Here, as I have already noted, there is no dispute that Godfrey’s
employer, the State of Iowa, is an “employer” within the meaning of the
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ICRA, see Iowa Code § 216.2(7), and thus in my view, the Act provides
Godfrey with an adequate statutory remedy. The reasoning of the Ohio,
Illinois, and New York courts is persuasive.
At best, article XII, section 1 might be read as requiring the general
assembly to enact a damages remedy for constitutional violations. In the
ICRA, the legislature has done that with respect to employment
discrimination by state and local officials. Once the legislature has
provided a remedy, it is not the role of the judiciary to provide a different
remedy unless the existing remedy is so deficient as to amount to a
denial of due process. 12
The ICRA’s language is mandatory and comprehensive. It provides
that a person claiming to be aggrieved by a discriminatory act “must”
follow the procedures therein. Id. § 216.16(1). We have no business
striking down the mandatory and exclusive language in the ICRA, and I
am glad we are not doing so today.
V. The Lead Opinion Authorizes the State to be Sued for
Punitive Damages in Disregard of Sovereign Immunity,
Longstanding Tradition, and the Express Language of the Iowa Tort
Claims Act.
The lead opinion cites the availability of punitive damages as its
justification for authorizing a parallel article I, section 6 track to the
existing ICRA track. However, the Iowa Tort Claims Act (ITCA) does not
allow punitive damages to be awarded against the State. Id. § 669.4. In
other words, the State has not waived sovereign immunity as to punitive
12The lead opinion tries to pigeonhole the defendants’ argument as one of classic
preemption. The issue is not classic preemption in the sense that one law invalidates
another law, but an issue of whether this court should establish a damages remedy of
its own liking for allegedly unconstitutional conduct when the legislature has already
done so.
94
damages, and I am not aware of an Iowa court having refused to honor
this limit. 13
A full discussion of this issue requires some clarity about the
parties to this case. Originally, the attorney general certified that all
individual defendants named in this petition were acting in their official
capacities with respect to all claims. See id. § 669.5(2)(a); Godfrey v.
State, 847 N.W.2d 578, 581 (Iowa 2014). This resulted in the dismissal
of the individual defendants from the lawsuit. Id. at 581–82. However,
in an earlier appeal, we reversed that dismissal in part. Id. at 588. We
held the certification did not apply to claims brought against the
individual defendants “in their individual capacities,” i.e., to the extent
these defendants were not “acting within the scope of their employment.”
Id. at 586. Still, we said that the individual defendants could “file a
motion for summary judgment to resolve this issue.” Id.
Subsequently, the defendants filed two separate motions for partial
summary judgment. One was to dismiss the constitutional claims
(Counts VI through IX) against all defendants based on the absence of a
private right of action. The other was to dismiss the remaining claims
against the individual defendants on the ground they had acted only in
their official, not individual, capacities. The first motion was granted and
is the subject of the present appeal. The plaintiff then conceded he had
no factual basis for opposing dismissal of any remaining claims against
13The lead opinion observes that the State did not discuss sovereign immunity in
its appellate brief. If the lead opinion is trying to make a point about error preservation,
it is simply wrong. The State was the appellee; Godfrey was the appellant. In his
briefing, Godfrey did not argue punitive damages as a reason for allowing
discrimination claims based on article I, section 6 in Iowa. The State thus had no
opportunity—let alone the obligation—to rebut an argument that Godfrey did not make,
and that was developed for the first time in today’s lead opinion.
95
the individual defendants, so those claims were voluntarily dismissed.
As a result, the State of Iowa is presently the only defendant in this case.
While today’s decision has the effect of reinstating some of the
constitutional claims, those claims appear to involve exclusively actions
taken by the defendants in their official capacities. Count VI under
article I, section 9 of the Iowa Constitution challenges the conduct of the
defendants in “demanding Plaintiff’s resignation” and “drastically
reducing Plaintiff’s salary.” Count VII, likewise brought under article I,
section 9, alleges the defendants “deprived Plaintiff of a protected liberty
interest by stigmatizing Plaintiff, by publicly and falsely claiming that
their illegal and unreasonable demands for his resignation and ultimate
reduction in his pay were due to Plaintiff’s poor work performance.”
Count IX alleges that the defendants deprived the plaintiff of equal
protection in violation of article I, section 6 when they slandered the
plaintiff and reduced his salary. 14
Thus, when the dust settles below, I think it is clear that the State
will remain the only defendant. Regardless of the ultimate merits of the
plaintiff’s constitutional claims, they concern actions taken by the
individual defendants in their official capacities. Any request to the
plaintiff to resign or effort to reduce his salary would have been
undertaken in that defendant’s official capacity. And the plaintiff has
already conceded, when he accepted the dismissal of his common law
defamation claims, that he “has been unable to develop evidence that the
individual Defendants were acting outside the scope of their
employment” when they made the allegedly defamatory comments.
14The fourth constitutional claim, Count VIII, names only the State as a
defendant.
96
Moreover, the plaintiff has previously conceded in this litigation
that he is not entitled to punitive damages against the State. See
Godfrey, 847 N.W.2d at 581 (quoting plaintiff’s counsel). So if that is the
justification for creating a direct cause of action against the State under
the Iowa Constitution, it is a strange one. The plaintiff has already
disavowed this ground. 15
Under the doctrine of sovereign immunity, the State is immune
from tort liability “[e]xcept where consent has been given by the
legislature.” Montandon v. Hargrave Const. Co., 256 Iowa 1297, 1299,
130 N.W.2d 659, 660 (1964). At the time of our State’s founding, this
doctrine was absolute: “No tort action could be maintained against the
State or its agencies.” Don R. Bennett, Handling Tort Claims and Suits
Against the State of Iowa: Part I, 17 Drake L. Rev. 189, 189 (1968).
Instead,
one who suffered damage as the result of a negligent or
wrongful act of a State employee had the limited choice of
bringing suit against the employee personally or seeking
redress from the Iowa General Assembly in the form of
private relief.
Id.
As early as 1875, this court explored the meaning of sovereign
immunity in Metz v. Soule, Kretsinger & Co., 40 Iowa 236, 239–41 (1875).
The plaintiff in Metz was an inmate at the State penitentiary who brought
suit against the contractor of the facility for negligent construction. Id.
at 236. Prior to filing suit, though, the plaintiff had petitioned the
15“[T]he State and its political subdivisions are not subject to punitive damages
as the goals of punishment and deterrence are not served when punitive damages are
imposed against the State, and the innocent taxpayer is ultimately the one who is
punished.” 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability § 611, at
620 (2012).
97
general assembly and received a legislative appropriation consisting of
monthly payments. Id. at 236–37. Although a jury rendered a verdict for
the plaintiff against the defendant contractor, we reversed on appeal,
concluding that the general assembly’s earlier payment constituted an
accord and satisfaction. Id. at 238 (“There can be but one satisfaction for
a wrong.”).
The defendant filed a petition for rehearing, “in which it [was]
strenuously urged that the foregoing opinion ignores the maxim that, The
king can do no wrong.” Id. at 239. In a denial of rehearing, we agreed
with the State and reaffirmed our doctrine of sovereign immunity,
clarifying the maxim means that any redress by the State “must be
voluntary, and cannot be coerced.” Id. at 240. Relying on the
Blackstone Commentaries, we said,
Perhaps [the maxim] means that, although the kind is
subject to the passions and infirmities of other men, the
constitution has prescribed no mode by which he can be
made personally amenable for any wrong which he may
actually commit. The law will, therefore, presume no wrong
where it has provided no remedy.
Id. at 239–40 (quoting 1 William Blackstone, Commentaries *246).
Hence, we said that Metz had “pursued the decent and respectful mode of
appealing to the State legislature,” and further that it was “clearly
implied” in our opinion that “Metz could not have maintained an action
against the State.” Id. at 240. I don’t read Metz as indicating that the
Iowa Constitution provides plaintiffs a remedy, absent some kind of clear
legislative action. See also Wood v. Boone County, 153 Iowa 92, 100, 133
N.W. 377, 380 (1911) (“It is a general rule that, where a governmental
98
duty rests upon a state or any of its instrumentalities, there is absolute
immunity in respect to all acts or agencies.”). 16
In 1965, the general assembly did partially waive the State’s
sovereign immunity in the ITCA. See 1965 Iowa Acts ch. 79, § 4 (codified
as amended at Iowa Code section 669.4). Since then, we have recognized
that the State’s waiver is “limited” to the boundaries of the ITCA. Hook v.
Trevino, 839 N.W.2d 434, 439 (Iowa 2013); accord Graham v.
Worthington, 259 Iowa 845, 857, 146 N.W.2d 626, 634 (1966); see also
Jones v. Univ. of Iowa, 836 N.W.2d 127, 141–42 (Iowa 2013) (“The waiver
of sovereign immunity, however, applies only to the actions specified in
the statute.”). For example, section 669.14 defines numerous claims as
to which the State retains its immunity from tort liability. See Iowa Code
§ 669.14. In Lloyd v. State, we explained,
Section [669.14] makes clear the legislature did not
intend the Iowa Tort Claims Act to be a waiver of sovereign
immunity in all instances. It was designed primarily to
remove sovereign immunity for suits in tort with certain
specified exceptions set out in the statute.
Under the Act the State or its agencies is subject to
suit in tort as an individual only in the manner and to the
extent to which consent has been given by the legislature.
The immunity of the State is from suit rather than from
liability and remains the rule rather than the exception.
16This did not, of course, leave our courts powerless to remedy illegal and
unconstitutional acts through injunctive relief. As we said in one case:
Appellant does not attempt to obtain money from the state,
interfere with its sovereignty, or the administration of its affairs through
proper agencies. On the other hand, he only wants to protect his
property from destruction by the agents of the state, who exceed their
authority and thereby seek to take it from him, not with, but without,
legal right and in opposition to a legislative guarantee. Clearly the power
of the courts to restrain state officials from violating plain provisions of
the statute and Constitution is in no way derogatory to the general and
well-recognized rule that the state cannot be sued without its consent.
Hoover v. Iowa State Highway Comm’n, 207 Iowa 58, 61, 222 N.W. 438, 440 (1928).
99
251 N.W.2d 551, 555 (Iowa 1977).
As a result, we have consistently held that when the general
assembly has not waived immunity to suit, any damage claim against the
State or its officials is barred. See, e.g., Jones, 836 N.W.2d at 141–43;
Minor v. State, 819 N.W.2d 383, 406 (Iowa 2012) (“[W]here the basis of
the plaintiff’s claim is the functional equivalent of a cause of action listed
in section 669.14(4), the government official is immune.”); Sanford v.
Manternach, 601 N.W.2d 360, 371 (Iowa 1999); Magers-Fionof v. State,
555 N.W.2d 672, 675 (Iowa 1996); Genetzky v. Iowa State Univ., 480
N.W.2d 858, 861 (Iowa 1992); Engstrom v. State, 461 N.W.2d 309, 320
(Iowa 1990); Greene v. Friend of Ct., 406 N.W.2d 433, 436 (Iowa 1987);
North v. State, 400 N.W.2d 566, 570 (Iowa 1987); Montandon, 256 Iowa at
1299, 130 N.W.2d at 660 (“Except where consent has been given by the
legislature the state is immune from suit.”); Yoerg v. Iowa Dairy Indus.
Comm’n, 244 Iowa 1377, 1387, 60 N.W.2d 566, 571 (1953).
All this authority is brushed away, as the lead opinion today finds
a previously undiscovered right to recover punitive damages against the
State as long as the lawsuit is couched in constitutional terms. But our
precedent is to the contrary. We earlier concluded that except as waived
by the legislature, sovereign immunity applies even when an alleged
deprivation of constitutional rights is involved. For example, in Sanford,
we affirmed the dismissal of the plaintiff’s damages claim “for the
deprivation of good-conduct time” in prison, something that clearly
involved a liberty interest. 601 N.W.2d at 370–72. Similarly, the plaintiff
in Yoerg claimed that a state commission’s failure to remit an excise tax
resulted in a violation under the Iowa Constitution. 244 Iowa at 1379,
60 N.W.2d at 567. Nonetheless, we determined “the suit against the
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commission was substantially against the state, which was immune
therefrom.” Id. at 1387, 60 N.W.2d at 571.
Recognizing that the doctrine of sovereign immunity may bar
constitutional damage claims is not some novel concept. In Figueroa v.
State, the Hawaii Supreme Court declined to create a private right of
action for damages based on provisions of the Hawaii Constitution, in
part because the court determined it was “not free to abolish the State’s
sovereign immunity.” 604 P.2d 1198, 1205 (Haw. 1979). Notably, the
Figueroa court reached that conclusion even though the state
constitution expressly provided that all of its provisions are self-
executing. Id. at 1206. The court reasoned:
The self-executing clause only means that the rights therein
established or recognized do not depend upon further
legislative action in order to become operative. No case has
construed the term “self-executing” as allowing money
damages for constitutional violations. More importantly, in a
suit against the state, there cannot be a right to money
damages without a waiver of sovereign immunity and we
regard as unsound the argument that all substantive rights
of necessity create a waiver of sovereign immunity such that
money damages are available.
Id. (citations omitted). Still other state supreme courts have held
similarly. See State Bd. of Educ. v. Drury, 437 S.E.2d 290, 294 (Ga.
1993) (“Although a citizen may be entitled to seek enforcement of his
constitutional rights, the means of that enforcement does not necessarily
take the form of a recovery of damages against the state.”); Livingood v.
Meece, 477 N.W.2d 183, 190 (N.D. 1991) (“[T]his court has specifically
applied sovereign immunity as a bar to a direct cause of action against
the state based on the alleged violation of state constitutional provisions,
assuming that such a cause of action exists.”); Rockhouse Mountain Prop.
Owners Ass’n, 503 A.2d at 1389 (rejecting a claim for damages under the
due process and equal protection clauses of the state constitution in part
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because of “the incompatibility of that remedy with the limited municipal
and official immunity that our cases have recognized as desirable”); see
also Garcia v. Reyes, 697 So. 2d 549, 550 (Fla. Dist. Ct. App. 1997) (“To
allow Garcia to bring a cause of action based on a violation of our state’s
constitution . . . would extend the waiver of sovereign immunity beyond
the stated intent of the statute.”). 17
The lead opinion goes a step further. Not only does it allow actual
damages against the State without the State’s consent, it also refers to
“[t]he necessity of the availability of punitive damages” in justifying a
direct action under the Iowa Constitution. Of course, the lead opinion
can’t make this jump using Iowa law or our precedent—we have “clearly
and repeatedly” concluded that punitive damages cannot be awarded
under the ICRA, Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678,
688 (Iowa 2013), and the legislature has plainly declared that “the state
shall not be liable . . . for punitive damages” under the ITCA. Iowa Code
§ 669.4; see also Young v. City of Des Moines, 262 N.W.2d 612, 622 (Iowa
1978) (noting that punitive damages are “specifically precluded” under
the ITCA), overruled on other grounds by Parks v. City of Marshalltown,
440 N.W.2d 377, 379 (Iowa 1989); Speed v. Beurle, 251 N.W.2d 217, 219
(Iowa 1977) (“The state’s immunity for torts of its employees was waived
as to compensatory damages but not as to punitive damages . . . .”).
17The lead opinion claims that our territorial supreme court was “well aware” of
the English practice of awarding damages for constitutional violations because we cited
Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), in an 1855 decision. See Sanders v.
State, 2 Iowa 230, 239 (1855). A closer examination of Sanders shows that we relied on
Entick in striking down a statute that we determined operated as a general warrant in
violation of article I, section 8 of the Iowa Constitution. Id. at 239–243 (reasoning that
general warrants had been “entirely unknown” “since the decision of Lord Camden, in
[Entick] v. Carrington”). In other words, Entick was cited for an entirely different point in
1855 than the lead opinion cites it for today.
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Here the lead opinion backs itself into a corner. Godfrey’s
constitutional damage claims are still “claims” against State officials
within the meaning of Iowa Code chapter 669. See Iowa Code
§ 669.2(3)(b) (defining “claim” as “[a]ny claim against an employee of the
state . . . caused by the negligent or wrongful act or omission of any
employee”). But punitive damages are expressly barred. Id. § 669.4.
While there’s no question that Iowans have long been able to
recover punitive damages in general, see Cochran v. Miller, 13 Iowa 128,
131 (1862), conspicuously absent from the majority’s opinion is any
discussion of precedent from this court allowing punitive damages
against the State.
We have also previously held that there is no “vested right” to
punitive damages. Shepherd Components, Inc. v. Brice Petrides-Donohue
& Assocs., 473 N.W.2d 612, 619 (Iowa 1991) (upholding the
constitutionality of Iowa Code section 668A.1). The legislature can limit
punitive damages even in a suit between two private parties. See id. If
punitive damages are not a matter of right, how can the mere
unavailability of such damages render a remedy constitutionally
inadequate?
If the lead opinion were correct that there is a constitutional right
to recover punitive damages from the State in appropriate cases, I am at
a loss to understand how that would work in the real world. Let’s
assume that a plaintiff could demonstrate that the defendant’s actions
“constituted willful and wanton disregard,” Iowa Code § 668A.1(1)(a), but
not that the conduct was “directed specifically at the claimant, or at the
person from which the claimant’s claim is derived.” Id. § 668A.1(1)(b). In
that case, the trial court may direct up to twenty-five percent of the
punitive damages to be awarded to the claimant, “with the remainder of
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the award to be ordered paid into a civil reparations trust fund
administered by the state court administrator.” Id. § 668A.1(2)(b)
(emphasis added). So would most of the award cycle back to the State
(although admittedly to a special fund)? Or does section 668A.1 even
apply? As we have seen, the lead opinion’s constitutional bulldozer has
already pushed aside section 216.16(1)’s exclusivity language and section
669.4’s bar on punitive damages. Would it also get to knock down
section 668A.1?
Another question arises. How is a jury supposed to assess the
“financial worth” of the State in setting the punitive damage award? See
McClure v. Walgreen Co., 613 N.W.2d 225, 233 (Iowa 2000). Will we have
jurors examining the State budget?
And there is no logical reason to draw the line at punitive damages.
The lead opinion amounts to a judicial declaration of defiance. The lead
opinion signals that it will not be constrained by anything the legislature
does and can devise any and all damage remedies it deems suitable and
proper for alleged constitutional violations. This principle seems to lack
any boundary. Can the court provide for a ten-year statute of
limitations? Can the court eliminate any and all forms of immunity?
At this point, a majority of this court has not decided that punitive
damages may be awarded against the State on a constitutional claim. As
I have tried to show, the availability of punitive damages would be a
reason not to allow direct constitutional claims against the State.
VI. The Impact of Today’s Decision on this Case May be
Limited, but It Will Have Wide-Reaching Effects Throughout State
and Local Government.
Today’s decision may not end up altering the result in this case.
The amici urge us to dispose of the due process claims on independent
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grounds. They argue that a high-level state policymaking official such as
a workers’ compensation commissioner has no due process right to a
particular salary, no due process right to be free from criticism for “poor
work performance,” and no due process right to be insulated from
“partisan” political action. These arguments weren’t advanced by the
defendants, so they are not addressed by the majority. Still, they remain
open issues in this case.
Additionally, the plaintiff’s counsel conceded at oral argument that
if the defendants reduced the plaintiff’s salary not because of his sexual
orientation or his political affiliation, but simply because they disagreed
with his policies as workers’ compensation commissioner, there would be
no constitutional claim.
While the impact of today’s decision in this case may be limited,
there should be no doubt about its far-reaching effects elsewhere. I
anticipate many claims from current and former inmates seeking
damages for wrongful incarceration. True, if you read the Iowa Code, the
State has not waived sovereign immunity as to such claims except in the
limited circumstances presented by chapter 663A. See Iowa Code
§§ 663A.1, 669.14(4). But now an inmate can bring a direct claim for
damages under article I, section 10 (ineffective assistance of counsel),
article I, section 9 (due process of law), or article I, section 17 (cruel and
unusual punishment).
Sanford would now be decided differently; yet it is just one
example. To give another illustration, in light of this court’s juvenile
sentencing decisions, I would expect individuals who have been
resentenced because their earlier sentences violated article I, section 17
to seek damages for the constitutional violation.
For the foregoing reasons, I would affirm the district court.
Waterman and Zager, JJ., join this dissent.