Cory Burnett v. Phillip Smith and State of Iowa

• Court: Supreme Court of Iowa
• Decided: May 5, 2023
• Docket: 22-1010
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 22–1010

Submitted February 20, 2023—Filed May 5, 2023

CORY BURNETT,

Appellant,

vs.

PHILLIP SMITH and STATE OF IOWA,

Appellees.

Appeal from the Iowa District Court for Johnson County, Lars G.

Anderson, Judge.

A commercial truck driver who alleges that he was wrongfully arrested by

an officer of the Iowa Department of Transportation appeals the summary

judgment granted to the defendants in his action for damages under the Iowa

Constitution. AFFIRMED.

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

joined. Christensen, C.J., filed a concurring opinion.

Martin Diaz (argued), Swisher, for appellant.

Brenna Bird, Attorney General, Jeffrey S. Thompson, Solicitor General

(until withdrawal), and Tessa M. Register (argued) and B.J. Terrones, Assistant

Attorneys General, for appellees.

Elizabeth J. Craig, Iowa City, for amicus curiae Iowa League of Cities. 2

MANSFIELD, Justice.

I. Introduction.

Under Iowa law, a person commits interference with official acts when the

person knowingly resists or obstructs a peace officer in the performance of their

lawful duties. Iowa Code § 719.1(1)(a) (2019). But resistance and obstruction are

not the same as a passive refusal to render assistance.

A garbage truck driver was pulled over on a busy highway by an officer of

the Iowa Department of Transportation (IDOT) for a cracked windshield. The

IDOT officer decided to do a vehicle inspection and asked the driver to help him

by remaining in the cab and turning the vehicle lights on and off. The driver

offered up his keys and access to his vehicle but declined to assist, stating that

he preferred to “go to jail” rather than help with the inspection. After several

minutes of a verbal standoff, the driver got his wish. He was arrested and charged

with interference with official acts.

After the driver was acquitted of the charge, he sued the IDOT officer and

the State of Iowa. The driver pursued various legal theories of direct damages

liability under the Iowa Constitution. The district court granted summary

judgment to the defendants, and the driver appealed. On appeal, the driver urges

that his passive noncooperation did not give the IDOT officer probable cause to

arrest him for interference with official acts. The driver asks us to endorse his

constitutional tort claim under article I, section 8 of the Iowa Constitution and

Godfrey v. State, 898 N.W.2d 844 (Iowa 2017). The defendants counter with 3

various arguments, including a forceful statement that Godfrey was wrongly

decided and should be overruled.

After careful consideration, we conclude that Godfrey should be overruled.

Godfrey is not supported by constitutional text or history. There was no opinion

in Godfrey joined in full by a majority of the court; its actual holding is contained

in an opinion by one justice concurring in part and dissenting in part. Godfrey

has been difficult to apply because our court has had to spin out new rules of

law to accommodate these new types of claims. And Godfrey has undermined

the established allocation of responsibility between the legislative and the

judicial branches of government. Accordingly, we have decided to overrule

Godfrey and to restore the law as it existed in this state before 2017. For these

reasons, we affirm the judgment of the district court.

II. Facts and Procedural History.

On November 1, 2019, at around 11:06 a.m., Cory Burnett was driving a

garbage truck owned by his employer, Waste Management, southbound on

Highway 218 near Iowa City. Philip Smith, a motor vehicle enforcement officer

with IDOT, stopped the truck for what appeared to be a cracked windshield. The

truck did in fact have a large crack on its windshield.

The encounter between Officer Smith and Burnett is captured on video

and audio. As Officer Smith was pulling over the garbage truck, he can be heard

stating that he was going to conduct an inspection.

Once both vehicles were stopped by the side of the highway, Officer Smith

approached the driver side of Burnett’s truck and advised Burnett that he would 4

be conducting a vehicle inspection. He asked Burnett to turn his lights on.1

Burnett told Officer Smith that Smith could conduct his own inspection and that

he was giving him access to the vehicle. Officer Smith explained that he needed

Burnett to turn his lights on so he could go around the vehicle and check them.

Clearly annoyed by the situation, Burnett refused.

Officer Smith asked Burnett again if he would turn his lights on. Burnett

reiterated to Officer Smith that Smith could conduct his own inspection. Burnett

said he was going to call his own boss and tell him he was going to jail. Burnett

told Officer Smith he was “fucking crazy” and asked him why he wouldn’t just

give him a ticket for the windshield and let him go. Officer Smith said he wasn’t

going to give him a ticket for the windshield. Burnett said he was not going to

keep playing these games. He said, “I’m fine with going to jail, I really am.”

Burnett provided his commercial driver’s license to Officer Smith, who

communicated this information to dispatch. Officer Smith then asked again, “Are

you going to do the inspection or not?” Burnett said he would go to jail. Officer

Smith told Burnett if he didn’t do the inspection, he was going to take him to

jail. After Burnett again informed Officer Smith that he would go to jail, Officer

Smith told him to put his hands behind his back and handcuffed him. Burnett

asked what he was going to jail for, and Officer Smith replied, “Interference.”

Officer Smith led Burnett back to his patrol car and asked Burnett to get

in the front passenger seat. Burnett said he wanted to ride in the back. Officer

1The headlamps, taillamps, brake lights, and turn signals are required components of the

level 2 vehicle inspection that Officer Smith intended to perform. 5

Smith replied that he had stuff in the back and Burnett should sit in the front.

At this point, Burnett raised his voice and said, “I want to be in the back like all

common decent criminals. I’m a criminal now, you’ve made me a criminal.”

Officer Smith replied, “Nobody says you’re a criminal.” Burnett continued

heatedly, “I’m being locked up because I’m not following your orders. So I’m a

criminal. . . . This is not a consensual act.” Eventually Burnett agreed to sit in

front. Once in the patrol car, he asked, “Is it too late to change my mind?” Officer

Smith responded, “Once the cuffs are on, it’s too late.”

Burnett was arrested and charged with interference with official acts in

violation of Iowa Code section 719.1. Following a trial, a magistrate dismissed

the charge against Burnett on January 10, 2020.

After exhausting remedies with the state appeal board, Burnett sued

Officer Smith and the State of Iowa in the Johnson County District Court on

November 19. He asserted both common law claims and claims under article I,

section 1 (violation of inalienable rights), section 8 (unreasonable search and

seizure), and section 9 (violation of substantive and procedural due process) of

the Iowa Constitution. Burnett’s essential point was that his arrest had been

without legal or factual support. Burnett conceded that he “had refused to assist

in an inspection,” but he asserted that he had a legal right to do so. Burnett

emphasized that he never objected to the inspection or interfered with the ability

of anyone else to do it; he just refused to participate in it himself.

On February 23, 2022, the State moved for summary judgment on all

claims. With respect to article I, section 1, the State urged that the inalienable 6

rights clause does not contain enforceable self-executing commands. Concerning

article I, section 8, the State urged that Officer Smith exercised all due care

before arresting Burnett and was therefore entitled to immunity under Baldwin

v. City of Estherville (Baldwin I), 915 N.W.2d 259, 260–61 (Iowa 2018). As to

article I, section 9, the State maintained that no violation of either procedural or

substantive due process had occurred. Further, the State asked that Godfrey be

overruled. Additionally, the State argued that the recently-enacted immunity in

Iowa Code section 669.14A barred all claims. The State also asked that Burnett’s

punitive damages claim be dismissed even if some of his claims otherwise

withstood summary judgment. The State’s submission included the video and

audio of Officer Smith’s stop and arrest of Burnett.

Burnett cross-moved for partial summary judgment on liability for his

claims under article I, section 1 and article I, section 8. Burnett argued that

Officer Smith’s unlawful arrest violated both section 1—as an “arbitrary

restraint”—and section 8—as an “unreasonable seizure.” Burnett also argued

that the magistrate’s dismissal of the interference-with-official-acts charge was

entitled to preclusive effect in his civil suit.

After resistances were filed, the district court issued a written ruling

granting the State’s motion and denying Burnett’s cross-motion. With respect to

Burnett’s constitutional claims, the district court agreed with the State that

article I, section 1 was not a self-executing source of rights that could be enforced

through damages; that Burnett’s section 8 claim failed because Officer Smith 7

had exercised all due care; and that no violation of section 9 had taken place.

Specifically, the district court reasoned as follows concerning the section 8 claim:

The cracked windshield on Plaintiff’s work vehicle provided a basis for Defendant Smith to pull the vehicle over. The video of the incident does not show any action by Defendant Smith that could be construed as showing he acted in bad faith or with malice and lack of probable cause in conducting the investigation into the vehicle.

The court also found that the undisputed facts, as a matter of law, could

not sustain an award of punitive damages and that Iowa Code section 669.14A

did not apply retroactively to conduct that preceded its effective date. However,

the court added that “because the Court is not leaving any of Plaintiff’s claims

for trial, it does not find it necessary to apply § 669.14A in this case.”

Burnett filed a motion for reconsideration, which the district court denied.

Burnett then filed a timely appeal, and we retained his appeal.

III. Standard of Review.

We review motions for summary judgment for correction of errors at law.

Lennette v. State, 975 N.W.2d 380, 388 (Iowa 2022). “To the extent that we review

constitutional claims, the standard of review is de novo.” Venckus v. City of Iowa

City, 930 N.W.2d 792, 798 (Iowa 2019).

IV. Legal Analysis.

Burnett’s appeal is limited to article I, section 8 of the Iowa Constitution.2

Several issues are raised by the parties. First, may a constitutional tort claim be

pursued under article I, section 8? In other words, does our Godfrey decision

2Burnett does not appeal the dismissal of his claims under article I, section 1 and article I,

section 9. 8

apply to claims under article I, section 8? Second, if it does, should Godfrey

nonetheless be overruled? Third, if a Godfrey claim may be pursued under article

I, section 8, is one nonetheless barred here because Officer Smith’s arrest of

Burnett was lawful? In other words, was there probable cause to believe that

Burnett had committed interference with official acts in violation of Iowa Code

section 719.1? Fourth, are the defendants precluded from asserting the existence

of probable cause because the case against Burnett was dismissed? Fifth, is

Burnett’s constitutional tort claim under article I, section 8 barred by section

669.14(4) of the Iowa Tort Claims Act (ITCA), which excepts claims “arising out

of . . . false arrest”? Sixth and finally, is that claim foreclosed by the “all due

care” immunity we recognized in Baldwin I?

For the reasons that follow, we have decided to address only the second

issue and to overrule Godfrey.

A. The Godfrey Decision. Six years ago, in Godfrey v. State, 898 N.W.2d

844 (Iowa 2017), our court held for the first time that state officials could be sued

directly under the Bill of Rights of the Iowa Constitution for money damages. Id.

at 870–72. No legislation was required; the courts could—and in the following

six years did—try to fill in the details of this court-devised remedy.

Godfrey, a workers’ compensation commissioner, claimed the Governor

and other state officials had discriminated against him and reduced his salary

based on his sexual orientation and partisan politics. Id. at 845–46. He asserted

claims under the Iowa Civil Rights Act (ICRA) as well as equal protection and due

process claims under article I, section 6 and article I, section 9 of the Iowa 9

Constitution. Id. at 846. The district court had dismissed the constitutional

claims as legally invalid, and we granted interlocutory review. Id. at 846–47.

On appeal, we reversed the dismissal of the constitutional damage claims

in part. Id. at 880. The legal analysis in the lead opinion was extensive. See id.

at 851–80. The lead opinion first traced the history of direct damages claims

under the Federal Bill of Rights. Id. at 851–56. We noted that the United States

Supreme Court recognized such claims in three cases decided between 1971 and

1980: Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979); and Carlson v.

Green, 446 U.S. 14 (1980). Godfrey, 898 N.W.2d at 854. We acknowledged that

the Court had “show[n] an unwillingness” since then to expand such claims

beyond the circumstances and contexts of those three cases. Id. at 855–56.

We then turned to whether other states have recognized such claims. Id.

at 856–62. We characterized state courts as “nearly equally divided in whether

to recognize implied constitutional actions for damages or whether to decline to

recognize such actions.” Id. at 856–57 (footnote omitted).3

3To be precise, Godfrey identified fourteen jurisdictions as recognizing direct damages actions under their state constitutions: California, Connecticut, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Montana, New Jersey, New York, North Carolina, Texas, and Wisconsin. 898 N.W.2d at 856 n.2. Likewise, it identified fourteen jurisdictions as not recognizing such claims: Alaska, Colorado, Florida, Georgia, Hawaii, Kentucky, Missouri, New Hampshire, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, and Utah. Id. at 857 n.3. Of the jurisdictions in the former category, Massachusetts and New Jersey actually have laws authorizing state constitutional claims. See Mass. Gen. Laws ch. 12, § 11I (2019); N.J. Stat. § 10:6-2(c) (2019). New York has—by statute—waived sovereign immunity for constitutional tort claims. See Brown v. State, 674 N.E.2d 1129, 1134–36 (N.Y. 1996). California and Texas used to—but no longer—recognize direct constitutional claims for damages. See Baldwin I, 915 N.W.2d at 272–73. 10

Next we addressed Iowa caselaw. Id. at 862–64. We discussed three Iowa

cases as supporting a direct action for damages under article I, section 8 of the

Iowa Constitution: McClurg v. Brenton, 98 N.W. 881 (Iowa 1904); Krehbiel v.

Henkle, 121 N.W. 378 (Iowa 1909); and Girard v. Anderson, 257 N.W. 400 (Iowa

1934). Godfrey, 898 N.W.2d at 862–63. All involved unlawful entries into homes

to retrieve property allegedly belonging to someone other than the homeowner.

McClurg, 98 N.W. at 881–82; Krehbiel, 121 N.W. at 379–80; Girard, 257 N.W. at

400–01. Two of the cases referenced the Iowa Constitution. See Krehbiel,

121 N.W. at 379–80 (“The right of the citizen to security in person and property

against wrongful seizures and searches is one which the law has ever zealously

safeguarded and has express recognition in our state Constitution. That a

violation of this right without reasonable ground therefor gives the injured party

a right of action is thoroughly well settled.” (citation omitted)); Girard, 257 N.W.

at 403 (“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.”).

We acknowledged that in Van Baale v. City of Des Moines, 550 N.W.2d 153

(Iowa 1996), our court had rejected a direct constitutional claim for damages,

stating, “Equal protection rights may be enforced only if the Congress or a

legislature provides a means of redress through appropriate legislation.” Godfrey,

898 N.W.2d at 850 (quoting Van Baale, 550 N.W.2d at 157). We characterized

these statements as dicta because our court had held in the alternative that the 11

plaintiff had not stated a claim for violation of equal protection. See id. at 864.

We also criticized the reasoning and research in Van Baale. See id.

In addition, we invoked Iowa’s constitutional tradition. Id. at 864–68. In

this section of the opinion, we quoted two statements from the 1857 debates on

our constitution about the importance of the bill of rights. Id. at 864. We further

discussed some English cases from the eighteenth century awarding damages to

individuals who had suffered unlawful searches and seizures. Id. at 866–67.

From this we concluded, “The availability of damages at law is thus an ordinary

remedy for violation of constitutional provisions, not some new-fangled

innovation.” Id. at 868.

At this point, we directed attention to the second sentence of article XII,

section 1, which states, “The general assembly shall pass all laws necessary to

carry this constitution into effect.” Id. (quoting Iowa Const. art XII, § 1). The

Godfrey defendants had argued that this provision meant the general assembly

must enact any damages remedy deemed necessary to implement the Iowa

Constitution; it was not the courts’ role to do that for them. Id. We disagreed. Id.

at 869. We concluded that the second sentence of article XII, section 1, and

article XII generally, were dealing with the “transition” to the 1857 Constitution.

Id. at 868. We noted that article XII was entitled, “Schedule.” Id. We therefore

questioned its significance:

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, 12

bar none, contained the most important provisions in the Iowa Constitution.

Id. at 870.

Finally, we concluded that the language of the equal protection and due

process guarantees in article I, section 6 and article I, section 9 were

“self-executing” by their terms. Id. at 871–72. In fact, we identified only two

non-self-executing provisions in our bill of rights: article I, section 9, which

provides that the general assembly “may” authorize a jury of less than twelve

persons in inferior courts, and article I, section 11, which provides that the

general assembly “may” dispense with grand juries. Id. at 869. “[O]ther than

these two provisions, nothing in the Iowa Bill of Rights requires legislative action

to ensure enforcement.” Id. We also noted that at various points, our constitution

specifically instructs the general assembly to enact laws in certain areas. Id. at

869 n.5. This, in our view, implied that legislation was not needed to establish a

constitutional damages remedy. Id. at 869.

Godfrey was not a unanimous decision. See id. at 880. Chief Justice Cady,

who provided the key fourth vote, joined the lead opinion only in part. Id. at 880

(Cady, C.J., concurring in part and dissenting in part). He stated, “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.”

Id. He then went on to explain why the plaintiff had an adequate remedy as to

his article I, section 6 equal protection claim under the ICRA but not as to his

article I, section 9 due process claim. Id. at 880–81. 13

Three members of the court dissented from the lead opinion in its entirety.

See id. at 899 (Mansfield, J., dissenting). Their dissent took the position that

article XII, section 1 “forecloses the plaintiff’s argument and should be the

starting-point for analysis.” Id. 882. The dissent pointed to the overall text of

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.

Id. at 882 (emphasis omitted) (quoting Iowa Const. art. XII, § 1). The dissent

elaborated,

Article XII, section 1 stands for two propositions. First, in the event of a conflict between a law and the constitution, the constitution 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.

Id. at 883.

The dissent also noted that Rhode Island has the same constitutional

provision as article XII, section 1 and that the Rhode Island Supreme Court has

read it as precluding constitutional damages claims without legislative

authorization. Id. at 884; see Bandoni v. State, 715 A.2d 580, 595 (R.I. 1998)

(stating that “we are of the opinion that the creation of a remedy in the

circumstances presented by this case should be left to the body charged by our

Constitution with this responsibility” and quoting article 6, section 1 of the 14

Rhode Island Constitution, which provides that “[t]he general assembly shall

pass all laws necessary to carry this Constitution into effect”).

The dissent urged that the lead opinion had drawn the wrong lesson from

the other specific references to law-making in the constitution. Id. at 886. These

typically “specify subject areas where the legislature must pass laws, such as the

election of an attorney general and the organization of corporations” or “delineate

areas where the legislature has greater discretion than usual.” Id. “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.” Id. (citing Iowa Const. art. XII, § 1).

Regarding the lead opinion’s contention that the Iowa Constitution is

“self-executing,” the dissent distinguished “self-executing” in the sense of being

enforceable as a defense or negative check on the government from

“self-executing” in the sense of being an independent ground for bringing a

damages action without legislative authorization. Id. at 885–86, 896–97. Our

cases had never said the constitution was self-executing in the latter sense. Id.

at 896. And several cases had said it was not. See Van Baale, 550 N.W.2d at 157

(“Although the equal protection clause creates a constitutionally protected right,

it is not self-enforcing.”); Hoover v. Iowa State Highway Comm’n, 222 N.W. 438,

440 (Iowa 1928) (“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.”); Lough v. City of Estherville, 98 N.W. 308, 310 (Iowa 1904) (“While a 15

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.”); Edmundson v. Indep. Sch. Dist., 67 N.W. 671, 673 (Iowa

1896) (“The constitutional provision is not self-executing or self-enforcing. It is

purely a matter of defense to recovery upon a contract . . . .”).

Turning to the 1857 constitutional debates, the dissent pointed to a

proposal by one delegate that would have allowed the State to be sued in

damages for taking away privileges and immunities it had previously granted.

Godfrey, 898 N.W.2d at 885. This proposal drew vocal opposition and did not

make it into the constitution. Id. As the dissent put it, “[T]he key point is this:

these framers understood the State generally could not be sued, even on a

constitutional claim, without express authorization from the constitution itself

or from the general assembly.” Id.

The dissent also maintained that the majority could cite no Iowa precedent

for a lawsuit for damages under the Iowa Constitution being available “absent

statutory authority or a common law tort.” Id. at 886. Godfrey was the first of its

kind. Of the three cases cited by the majority, McClurg was a common law

trespass case against the mayor of Des Moines and others for engaging in

vigilante justice and breaking into the plaintiff’s home at night after the plaintiff

had allegedly stolen chickens. Id. at 887; see McClurg, 98 N.W. at 881–83.

Krehbiel and Girard were common law cases against private parties. Godfrey, 16

898 N.W.2d at 887–88; see Krehbiel, 121 N.W. at 379–80; Girard, 257 N.W. at

400–01. “[T]hese 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.” Godfrey, 898 N.W.2d

at 888.

Further, the dissent noted that we had repeatedly rejected constitutional

damages claims against the State—both before and after the passage of the

ITCA—on the basis of sovereign immunity. Id. at 893, 896; see, e.g., Sanford v.

Manternach, 601 N.W.2d 360, 371 (Iowa 1999); Yoerg v. Iowa Dairy Indus.

Comm’n, 60 N.W.2d 566, 571 (Iowa 1953). Presumably Godfrey was overruling

those cases, although without saying so.

B. Godfrey’s Aftermath. In the six years since Godfrey, we have tried to

answer some of the new questions that our decision raised. These include

whether qualified immunity is available and what the standard should be,

Baldwin I, 915 N.W.2d at 279–81; whether judicial process immunity is

available, Venckus v. City of Iowa City, 930 N.W.2d at 800–03; what statute of

limitations applies to Godfrey claims against municipal defendants, id. at 808;

whether punitive damages and attorney fees can be recovered on Godfrey claims

against municipal defendants, Baldwin v. City of Estherville (Baldwin II),

929 N.W.2d 691, 698–700 (Iowa 2019); whether procedural provisions of the

ITCA apply to Godfrey claims against the State and state employees, Wagner v.

State, 952 N.W.2d 843, 858–59 (Iowa 2020); and whether punitive damages are

available against state defendants, id. at 861–62. On almost all of these issues, 17

our court was divided. See Wagner, 952 N.W.2d at 865; Venckus, 930 N.W.2d at

810; Baldwin II, 929 N.W.2d at 702; Baldwin I, 915 N.W.2d at 281. And as this

case illustrates, other questions continue to arise.

Additionally, our methodology for answering Godfrey questions has not

been consistent. In Baldwin II, we deferred to the legislature and made a broad

holding that punitive damages are not available on Godfrey claims against

municipalities because the Iowa Municipal Tort Claims Act (IMTCA) prohibits

such damages. 929 N.W.2d at 698–99. Later, in Wagner, after acknowledging

that the ITCA also bars recovery of punitive damages, we said, “If we strictly

followed Baldwin II, we could give Iowa Code section 669.4(2) the same

conclusive effect that section 670.4(1)(e) received in Baldwin II.” 952 N.W.2d at

861. Yet we declined to follow that approach. Id. at 862. Instead, we focused on

the Godfrey partial concurrence and partial dissent in issuing a case-specific

ruling that was limited to “an excessive force case without other unconstitutional

conduct where any actual damages will likely be significant.” Id.

Meanwhile, we have acknowledged as a court that Godfrey sharply

departed from precedent. In Wagner, we observed, “[Godfrey] cited no Iowa

precedent for a direct constitutional claim for damages against the State or state

officials. In fact, Iowa precedent was to the contrary.” Id. at 857; see also id.

(“[T]here was no Iowa precedent allowing the State or its officials acting within

the scope of their employment to be sued in damages for a constitutional tort.”). 18

C. Reasons for Overruling Godfrey. The State advances several reasons

why Godfrey should be overruled.4 The State points to two developments that

have occurred since Godfrey. First, while not overruling Bivens, Davis, or

Carlson, the United States Supreme Court has expressed its disapproval of direct

constitutional claims for damages under the United States Constitution. See

Egbert v. Boule, 142 S. Ct. 1793, 1802–04 (2022). In Egbert v. Boule, which was

decided last year and which involved a Fourth Amendment excessive force claim

seemingly analogous to Bivens, the Court found that no constitutional tort claim

was available. Id. at 1809. Throughout its opinion, the Court distanced itself

from the trilogy of 1971–80 cases: “Over the past 42 years, . . . we have declined

11 times to imply a similar cause of action for other alleged constitutional

violations.” Id. at 1799. “[O]ur cases have made clear that, in all but the most

unusual circumstances, prescribing a cause of action is a job for Congress, not

the courts . . . .” Id. at 1800. “At bottom, creating a cause of action is a legislative

endeavor.” Id. at 1802. “[W]e have indicated that if we were called to decide

Bivens today, we would decline to discover any implied causes of action in the

Constitution.” Id. at 1809.

Second, our legislature has registered its disagreement with Godfrey.

During the 2021 legislative session, the legislature enacted amendments to the

ITCA and the IMTCA that added a qualified-immunity defense and a heightened

pleading standard for a plaintiff alleging a violation of law by a state or local

4The Iowa League of Cities has filed an amicus brief joining the State’s request for Godfrey

to be overruled. 19

official. See 2021 Iowa Acts ch. 183 §§ 12, 14 (codified at Iowa Code § 669.14A

(2022); id. § 670.4A). The amendments also included the following language:

“This chapter shall not be construed to be a waiver of sovereign immunity for a

claim for money damages under the Constitution of the State of Iowa.” Id. §§ 13,

15 (codified at Iowa Code § 669.26 (2022); id. § 670.14). Thus, the 2021

legislation asserted—at least symbolically—that the State and local governments

were immune from Godfrey claims.

Neither of these developments is binding on us. Neither compels us to

reexamine Godfrey. But they suggest that we should carefully consider whether

we went down the right path in 2017.

After doing so, we conclude that Godfrey was wrongly decided. We

respectfully believe that Godfrey misinterpreted the relevant constitutional text,

misread Iowa precedent, and overlooked important constitutional history.

Godfrey was the break with precedent; by overruling Godfrey, we simply conform

our law to the way it was before 2017. Many of our disagreements with Godfrey

were set forth in the prior dissent which we have already summarized. We add

the following observations.

1. Godfrey does not explain the second sentence of article XII, section 1.

Godfrey’s approach to the second sentence of article XII, section 1 was

result-oriented, not text-oriented. We said in Godfrey what the sentence “cannot”

do: specifically, it “cannot swallow up the power of the judicial branch to craft

remedies for constitutional violations of article I.” 898 N.W.2d at 869 (lead 20

opinion). But we never offered an alternative textual explanation for what the

sentence actually did.

It does not make a difference if one characterizes article XII as relating to

“transition issues.” Id. at 868. Yes, article XII was intended in large part to

manage the transition to the 1857 Constitution. See Iowa Const. art. XII,

§§ 3–13. In that regard, sections 1 and 2 together make it clear that laws

inconsistent with the constitution became void, pre-1857 laws consistent with

the constitution remained in effect, but otherwise the legislature needed to pass

laws to implement the new constitution. Id. §§ 1, 2. It was the legislature’s job to

pass “all laws necessary to carry this Constitution into effect,” id. § 1, not ours

“to craft remedies for constitutional violations,” Godfrey, 898 N.W.2d at 869.

Godfrey also overlooked the contrasting language in article I, section 18

that contains a self-executing damages remedy: “Private property shall not be

taken for public use without just compensation first being made, or secured to

be made to the owner thereof, as soon as the damages shall be assessed by a

jury . . . .” Iowa Const. art. I, § 18. When the framers of the 1857 Constitution

wanted to provide for a right to damages against the government, they knew how

to do so. See State v. Ochoa, 792 N.W.2d 260, 269 (Iowa 2010) (applying the

canon against surplusage in interpreting the Iowa Constitution).

2. Common law claims against local law enforcement were widely

recognized before and after the adoption of the 1857 Constitution, but these were

not direct constitutional claims for damages. Godfrey also missed another critical

point: The common law tradition permitted common law claims against local law 21

enforcement officials for tortious actions taken in excess of their authority. Our

early caselaw is full of examples. In Hetfield v. Towsley, 3 Greene 584 (Iowa

1852), the plaintiff sued a justice of the peace and others for wrongfully taking

away his yoke of oxen. Id. at 584. We affirmed dismissal of the case under the

circumstances and stated the general rule, “The justice and constable, in what

they did, were in the performance of official duty. Unless they exceeded their

jurisdiction, or acted corruptly, or without authority of law, they are not liable.”

Id. at 585. In Hutchinson v. Sangster, 4 Greene 340 (Iowa 1854), we reversed a

jury verdict against the marshal of Iowa City who had been sued for trespass

and false arrest after arresting and detaining an intoxicated individual. Id. at

341, 343. We reasoned that the answer pled “ample justification,” and the

marshal should have been allowed to present a defense. Id. at 342–43. In

Deforest v. Swan, 4 Greene 357 (Iowa 1854), we affirmed a trespass judgment

against the sheriff of Johnson County for actions taken in reliance on a “grossly

deficient” writ of attachment. Id. at 357–58. In Plummer v. Harbut, 5 Iowa (Clarke)

308 (1857), we affirmed a trespass verdict in favor of an individual whose

premises had been broken into and whose liquor had been seized by the

defendant constable and others on the basis of an invalid search warrant. Id. at

314. In Funk v. Israel, 5 Iowa (Clarke) 438 (1858), we said, “[S]uppose the justice

issues the warrant without any information, or the officer seizes without a

warrant, or fails to give the required notice, or any other material defect is found

in the proceedings, of course, the officer, and all parties who acted with him,

would be liable in trespass.” Id. at 449. 22

Notably, all of these actions alleged wrongful conduct by local law

enforcement that would have violated article I, section 8. But nobody mentioned

that because it wasn’t the important point. The important point was that the

defendants had allegedly engaged in tortious conduct without adequate

justification. See also Lennette, 975 N.W.2d at 405 (McDonald, J., concurring)

(“By the time the citizens of Iowa ratified the Iowa Constitution in 1857, it was

well established throughout the country that government officials could be, and

regularly were, subject to nonconstitutional causes of action for monetary

damages.”).

McClurg, Krehbiel, and Girard fit neatly into this pattern. They were not

constitutional tort cases—i.e., Godfrey claims before their time. They were

standard common law tort cases. In McClurg, the action was “for an alleged

wrongful and unauthorized trespass upon plaintiff’s home and property.”

98 N.W. at 882. So there was no basis in our precedent to adopt a constitutional

cause of action for money damages.5 Similarly, in Krehbiel, we said that a

violation of the right to security in person and property against wrongful seizures

5In Godfrey, we also cited State v. Tonn, 191 N.W. 530 (Iowa 1923), abrogated by State v.

Hagen, 137 N.W.2d 895 (Iowa 1965). 898 N.W.2d at 862–63. Tonn is a case from a bygone era involving a prosecution of an organizer for the International Workers of the World (IWW) for what would now likely be regarding as protected First Amendment activity. See id. at 532. While the defendant was in jail, local law enforcement retrieved and searched his personal bags without having obtained a warrant. Id. The search revealed IWW books, pamphlets, letters, buttons, etc. Id. at 532–33. Although the search was illegal, we declined to apply the exclusionary rule under the Iowa Constitution. Id. at 535–36. Instead, we indicated that the defendant could pursue an action for damages against local law enforcement: “A trespassing officer is liable for all wrong done in an illegal search or seizure.” Id. at 535. A dissent in part commented that “an action for damages against the individual committing the trespass is scarcely worthy of the court which refuses to give him the protection to which he is entitled under the charter which is supposed to command the obedience of the judiciary as well as of the private citizen.” Id. at 540–41 (Weaver, J., concurring in part and dissenting in part). Again, the notion was simply that the victim of a wrongful search could pursue a common law trespass claim. 23

and searches “without reasonable ground therefor gives the injured party a right

of action.” 121 N.W. at 379–80. But the right of action in question was a common

law claim; we cited as supporting authority a series of cases all involving common

law claims. See id. at 380. And in Girard, the plaintiff brought a cause of action

for “trespass,” 257 N.W. at 401; we simply cited to the Iowa Constitution as a

reason why the entry into the home was not lawful, id. at 402–03.

In this regard, one more case should be mentioned. In Lough v. City of

Estherville, 98 N.W. 308, taxpayers sought to hold the mayor and city council

legally liable because they had caused the city to incur indebtedness in excess

of the constitutional limit. Id. at 308. This constitutional claim did not fit within

the established common law framework. See id. at 309–10. And therefore we

rejected it, stating,

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.

Id. at 310.

3. The sovereign immunity of the State from suit was an established rule

when the 1857 Constitution was adopted and remained so until we adopted the

ITCA. Godfrey also failed to account for, or even discuss, sovereign immunity.

Historically, in Iowa, the State could not be sued for damages without its

consent. The 1857 debates show that the delegates recognized this sovereign

immunity as a background principle. “[I]t is a well settled principle, that a citizen

of this State cannot sue the State, for the State is sovereign, and cannot be sued 24

by its subject.” 1 The Debates of the Constitutional Convention of the State of Iowa

410 (W. Blair Lord rep., 1857) (remarks of Clarke), https://www.legis.iowa.gov

/docs/publications/ICNST/961927.pdf. Further:

[T]he Supreme Court of the United States, has decided under the section of the Constitution of the United States, which that gentleman has read, that even citizens of another State cannot sue this State, unless the law of this State gives them the right so to do; for the simple and plain reason that a State is sovereign, and cannot be sued without her own consent.

Id.

And our court confirmed this rule many times before Godfrey. In Iowa

Electric Co. v. State Board of Control, 266 N.W. 543 (Iowa 1936), we stated,

The doctrine that a state cannot be sued in its sovereign capacity is so well settled that it requires neither discussion nor citation of authorities. The difficulty is in determining whether the things of which complaint is made in the petition were done by the appellants in their capacity as officers of and as an agency of the state, and under the authority possessed by them as such officers and agency.

Id. at 544. “It is fundamental that a state cannot be sued in its own courts

without its consent . . . .” Wilson v. La. Purchase Exposition Comm’n, 110 N.W.

1045, 1046 (Iowa 1907). “Concededly, if the fair board be an arm or agency of

the state, it is not suable.” De Votie v. Iowa State Fair Bd., 249 N.W. 429, 429

(Iowa 1933); cf. Hatcher v. Dunn, 71 N.W. 343, 344 (Iowa 1897) (holding that the

liability of a state oil inspector and his deputy for malfeasance, if any, was only

statutory). This did not mean the constitution could not be enforced against the

State. In Collins v. State Board of Social Welfare, 81 N.W.2d 4 (Iowa 1957), for

example, we held that the plaintiffs could pursue an action for a declaratory

judgment that their state welfare payments were unconstitutionally 25

discriminatory in violation of article I, section 6 of the Iowa Constitution. Id. at

6–7. We said, “The rule is . . . well recognized that where no judgment or decree

is asked against the State, but the suit is rather to require its officers and agents

to perform their duty, there is no immunity recognized.” Id. at 6; see also State

ex rel. Fenton v. Downing, 155 N.W.2d 517, 520 (Iowa 1968) (“Where the purpose

of the suit is to require the officers and agents of the State to perform their duties,

there is no immunity recognized.”). So we were not powerless before 2017 to

enforce the constitution; we simply could not award damages “at law” against

the State without a law empowering us to do so.

The doctrinal flaws in Godfrey might not be sufficient reason to overrule it

if the case were filling a significant gap in our jurisprudence. Yet we are not

persuaded that Godfrey has been serving that role.

4. Several of the Godfrey claims that we have seen involved no underlying

constitutional violation. To some extent, Godfrey has been used to advance

constitutional claims of questionable legal merit. That was true in Godfrey itself.

There, we ultimately rejected the plaintiff’s constitutional damages claim on the

merits after ten years of litigation on the ground that he had no constitutionally

protected interest in his salary which the Governor had reduced. Godfrey v.

State, 962 N.W.2d 84, 117 (Iowa 2021). That ruling on this point was unanimous;

it was joined even by our distinguished former colleague who had written the

lead opinion in Godfrey. See id. at 90; id. at 124–26 (Appel, J., concurring in part

and dissenting in part) (dissenting on other grounds); id. at 155 (McDermott, J.,

concurring in part and dissenting in part) (same). 26

Another example is Lennette v. State, 975 N.W.2d 380. There, we affirmed

the dismissal of Godfrey constitutional damages claims brought by a father

whose young daughter had wrongfully accused him of sexual abuse. Id. at

384–86. An Iowa Department of Human Services (DHS) social worker had

credited the allegation. Id. at 385. At DHS’s request, an order was entered

ex parte removing the father from the home. Id. Months later, after the father

moved to vacate the no-contact order and a full trial was held, “the juvenile court

issued a detailed ruling determining that the sexual abuse allegation was

‘unfounded and should be expunged from the central registry.’ ” Id. at 386. We

held, again unanimously, that these circumstances did not amount to violation

of substantive or procedural due process. Id. at 396–97.

Two earlier examples are Behm v. City of Cedar Rapids, 922 N.W.2d 524

(Iowa 2019), and Weizberg v. City of Des Moines, 923 N.W.2d 200 (Iowa 2018). In

those two cases, various individuals who had received

automated-traffic-enforcement (ATE) citations alleged that the citations were

unlawful. 922 N.W.2d at 538–40; 923 N.W.2d at 207–08. They sought damages

under the Iowa Constitution for violations of procedural due process, substantive

due process, equal protection, and privileges and immunities. 922 N.W.2d at

539–40; 923 N.W.2d at 207–08.

In Behm, the plaintiffs made the novel assertion that the ATE ordinance

infringed their fundamental right to intrastate travel. 922 N.W.2d at 548. We

rejected this argument summarily: “No one . . . can seriously question the power

of the state or a municipality to impose speed limits on public highways.” Id. at 27

549. We then applied the rational basis test and affirmed summary judgment for

the city on all the substantive constitutional claims. Id. at 550–59. We also

affirmed summary judgment on the finding of no procedural due process

violation. Id. at 569. Again, our ruling was unanimous.

In Weizberg, we likewise concluded that there had been no violation of

procedural due process. 923 N.W.2d at 203. On the substantive due process,

equal protection, and privileges and immunities claims, we held that the

plaintiff’s case could go forward but emphasized that “[t]he procedural

distinction between Behm and this case is critical.” Id. at 217, 219. We noted

that Behm had been decided on summary judgment whereas Weizberg had been

decided on a motion to dismiss. Id. at 217. We held that the plaintiffs should

have had an opportunity to negate the asserted rational basis before the trial

court dismissed the case. Id. at 217–19, 221–22.

Thus, it is unclear whether Godfrey, at a practical level, is really needed.

Does it fill a remedial gap in our law? That is an important issue because we

have already discussed Godfrey’s jurisprudential costs.

5. Godfrey claims in federal court have usually been a companion to federal

constitutional claims covering the same alleged misconduct. In addition to state

court cases like Godfrey, Lennette, Behm, and Weizberg, federal courts have been

also presiding over cases involving Godfrey claims. See, e.g., Luong v. House, ___

F. Supp. 3d ___, No. 4:21–cv–00214, 2023 WL 2890196 (S.D. Iowa April 11,

2023); Sahr v. City of Des Moines, ___ F. Supp. 3d ___, No. 4:21–cv–00101, 2023

WL 2729436 (S.D. Iowa March 30, 2023); Young v. City of Council Bluffs, 28

569 F. Supp. 3d 885 (S.D. Iowa 2021); Clinton v. Garrett, 551 F. Supp. 3d 929

(S.D. Iowa 2021), aff’d, 49 F.4th 1132 (8th Cir. 2022); Wagner v. Iowa,

No. 19–CV–3007–CJW–KEM, 2021 WL 521309 (N.D. Iowa Feb. 11, 2021);

Williams v. City of Burlington, 516 F. Supp. 3d 851 (S.D. Iowa 2021); Wendt v.

Iowa, No. 4:17–cv–00423–JEG–CFB, 2019 WL 13241967 (S.D. Iowa Sept. 23,

2019); Baldwin v. Estherville, 218 F. Supp. 3d 987 (N.D. Iowa 2016). Here, the

issue is not so much that the underlying constitutional claim may lack merit,

but that the Godfrey claim is duplicative.

Frequently, the federal cases have raised conventional false arrest,

excessive force, and illegal search allegations. See Luong, ___ F. Supp. 3d at ___,

2023 WL 2890196, at *4 (false arrest); Sahr, ___ F. Supp. 3d at ___, 2023 WL

2729436, at *4 (false arrest); Young, 569 F. Supp. 3d at 903–04 (false arrest and

excessive force); Clinton, 551 F. Supp. 3d at 939 (improper stop); Wagner,

2021 WL 521309, at *2 (excessive force); Williams, 516 F. Supp. 3d at 861

(excessive force); Wendt, 2019 WL 13241967, at *5 (illegal search); Baldwin,

218 F. Supp. 3d at 994 (false arrest). The Godfrey claim under the Iowa

Constitution then is typically joined with a federal civil rights claim under

42 U.S.C. § 1983 and the United States Constitution. See Luong, ___ F. Supp.

3d at ___, 2023 WL 2890196, at *4; Sahr, ___ F. Supp. 3d at ___, 2023 WL

2729436, at *4; Young, 569 F. Supp. 3d at 903; Clinton, 551 F. Supp. 3d at 939;

Wagner, 2021 WL 521309, at *2–3; Williams, 516 F. Supp. 3d at 861; Wendt,

2019 WL 13241967, at *5; Baldwin, 218 F. Supp. 3d. at 994. 29

Typically, in these federal cases, the federal and state constitutional claims

have risen or fallen together. See Luong, ___ F. Supp. 3d at ___, 2023 WL

2890196, at *5–10 (granting summary judgment on federal constitutional claim

and declining to exercise supplemental jurisdiction over Godfrey claim); Sahr,

___ F. Supp. 3d at ___, 2023 WL 2729436, at *6–12, *19–20 (denying summary

judgment as to both federal and state unconstitutional seizure claims); Young,

569 F. Supp. 3d at 900–04 (granting summary judgment to the city defendants

on both federal and state constitutional claims); Clinton, 551 F. Supp. 3d at 953

(“For the same reasons they must be denied federal qualified immunity on

Clinton’s § 1983 claim, Officers Garrett, Steinkamp, and Minnehan must also be

denied immunity under state law.”); Williams, 516 F. Supp. 3d at 869 (denying

summary judgment on both federal and state constitutional claims); Wendt,

2019 WL 13241967, at *5–6, *15 (granting summary judgment based on

qualified immunity on both federal and state constitutional claims). We are

aware of only one exception. See Sahr, ___ F. Supp. 3d at ___, 2023 WL 2729436,

at *16–17, *20–21 (granting summary judgment based on Harlow immunity on

First Amendment claim but denying it based on all-due-care immunity as to

article I, section 7 claim).6

In these cases, Godfrey does not enable the plaintiff to recover damages

they would not otherwise be able to recover.

6In Wagner, which was an original federal court action, the federal district court denied the State’s motion to dismiss the § 1983 claims but dismissed the state constitutional claims for want of subject matter jurisdiction given that the State had not waived its jurisdictional objection by removal. 2021 WL 521309, at *2–3. 30

6. The reliance interest here is relatively slight. We are hesitant to overrule

a precedent where a significant reliance interest has developed. In Planned

Parenthood of the Heartland, Inc. v. Reynolds ex rel. State (PPH IV), 975 N.W.2d

710 (Iowa 2022), we considered the potential effects of overruling our decision.

Id. at 734. We asked whether the prior case was “long-standing” and whether

“people had ‘ordered their thinking and living around that case.’ ” PPH IV,

975 N.W.2d at 733, 735 (quoting Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833, 856 (1992), overruled by Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022)). Here, Godfrey is not an entrenched precedent; it was

decided only six years ago. See 898 N.W.2d at 844. As already discussed, a

number of the Godfrey cases filed during that period involved either untested

theories of constitutional law or overlapping federal and state constitutional

claims. We do not believe a meaningful reliance interest has accrued.7

7. There have been difficulties in implementing Godfrey. We generally do

not overrule decisions just because they are wrong. We ask also whether the

decision is practically unworkable. See PPH IV, 975 N.W.2d at 735–37 (plurality

opinion). For example, in PPH IV, we overruled a prior constitutional decision

after explaining why it was “internally contradictory” and thus “unworkable.” Id.

at 737.8 We believe that is also the case with Godfrey.

7We also note that last year a member of this court called for the overruling of Godfrey.

See Lennette, 975 N.W.2d at 402 (McDonald, J., concurring). 8See also Garrison v. New Fashion Pork LLP, 977 N.W.2d 67, 81–83 (Iowa 2022) (overruling a constitutional precedent because it was “clearly erroneous,” “difficult to administer,” and had “engender[ed] unnecessary litigation”); State v. Kilby, 961 N.W.2d 374, 381 (Iowa 2021) (overruling a prior constitutional decision because it was “manifestly erroneous” and had led to “confusion” about its scope). 31

Godfrey not only has been doctrinally controversial, it has had difficulties

in implementation. For one, Godfrey’s actual holding is found not in the lead

opinion but in Chief Justice Cady’s relatively brief concurrence in part and

dissent in part. See 898 N.W.2d at 880–81 (Cady, C.J., concurring in part and

dissenting in part.) Under that separate opinion, a preliminary decision has to

be made as to whether there is already an adequate remedy provided by the

legislature. See id. at 880. But what’s an adequate remedy provided by the

legislature? Does a common law remedy made available through the ITCA or the

IMTCA count? Do the elements of the adequate remedy claim have to be the same

as the elements of the constitutional claim? How much relief must be available

under the adequate remedy claim? See Bucco v. W. Iowa Tech Cmty. Coll.,

No. C21–4001–LTS, 2022 WL 605801, at *17 (N.D. Iowa March 1, 2022) (“In the

absence of any clarification from Iowa courts on the meaning of ‘the legislature,’

I will look to Godfrey itself. . . . Godfrey reflects that the Court considered

whether common law remedies would be adequate. While the Court did not

directly address whether a common law remedy would be adequate . . . it implied

that it would not by referring solely to remedies provided by ‘the legislature.’ ”).

Even the lead opinion acknowledged that Godfrey was only a first step. See

898 N.W.2d at 880 (lead opinion) (“We express no view on other potential

defenses which may be available to the defendants . . . .”). As already noted, our

methodology for resolving Godfrey’s unanswered questions has not been

consistent. Compare Baldwin II, 929 N.W.2d at 698–99 (applying the IMTCA’s

bar on punitive damages in a constitutional tort case against municipal 32

defendants), with Wagner, 952 N.W.2d at 861 (declining to follow Baldwin II’s

approach as to constitutional tort claims against State defendants).

In addition, our efforts to answer some of Godfrey’s unanswered questions

have opened up other lines of inquiry. See, e.g., Luong, ___ F. Supp. 3d at ___,

2023 WL 2890196, at *10 (“It is an open question . . . whether municipal law

enforcement officers can be sued [on a Godfrey claim] in their individual

capacities.”). Federal courts seem to be uncertain of what “all due care” immunity

entails. See Young, 569 F. Supp. 3d at 900 (“Iowa appellate courts have not yet

defined the exact contours of all due care immunity . . . .”); Clinton, 551 F. Supp.

3d at 952 (“Iowa’s appellate courts have yet to define the precise contours of the

‘all due care’ standard.”). The legislature has now enacted a separate

Harlow-type immunity, which differs from the “all due care” immunity and whose

impact on Godfrey claims we have yet to consider. See Iowa Acts 2021 ch. 183

§§ 12, 14 (codified at Iowa Code § 669.14A (2022); id. § 670.4A); see also Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982) (“[G]overnment officials performing

discretionary functions generally are shielded from liability for civil damages

insofar as their conduct does not violate ‘clearly established’ statutory or

constitutional rights of which a reasonable person would have known.”).

This brings us to perhaps the most fundamental problem with Godfrey. In

the American legal system there have been, historically, two paths for a plaintiff

to go to court and recover money damages: the common law and positive law.

The common law belongs to the courts. We set the standards for liability and the

defenses. Statutes are the legislature’s domain. They pass laws which have their 33

own liability rules and defenses. Of course, the courts and the legislature

interact. We interpret statutes, and the legislature can enact laws that modify

the common law. But in general, the roles are clear.

A constitution, however, is higher law. Once a court begins constructing

damages remedies for constitutional violations—without the rich history of the

common law or the clear direction of a statute—tension, conflict, and uncertainty

result. There is no clear hierarchy between the judicial branch and the legislative

branch. Courts have neither the freedom and flexibility they enjoy with normal

common law development nor the specific mandate that a statute provides.

Meanwhile, the legislature has a “say” regarding the constitutional damages

remedy, but its authority to legislate is circumscribed by adequate-remedy limits

which are difficult to delineate. These inevitable and unpredictable forays by

each branch into the other’s territory violate separation of powers. See Iowa

Const. art. III, § 1.

We will refer to a recent decision by another state supreme court because

we think it illustrates the inherent problems with our Godfrey jurisprudence. In

Mack v. Williams, 522 P.3d 434 (Nev. 2022) (en banc), the Nevada Supreme Court

recognized for the first time a constitutional tort claim for damages under article

I, section 18 of the Nevada Constitution—its counterpart to article I, section 8.

Id. at 450. Notably, the court cited Godfrey twice with approval. See id. at 443,

447.9

9Incontrast to the Nevada Supreme Court, the West Virginia Supreme Court has also recently weighed in and found no implied damages remedy under the search and seizure clause of the West Virginia Constitution. See Fields v. Mellinger, 851 S.E.2d 789, 799 (W. Va. 2020). A 34

The case involved a prison visitor who was strip-searched and then denied

visitation although no contraband was found. Id. at 439. The court endorsed a

“case by case” approach to the implication of a private damages remedy under

the Nevada Constitution. Id. at 444–45. In the court’s view, this meant

“judiciousness in determining whether an at-issue self-executing provision is

enforceable by the requested remedy” and “a degree of deference to legislative

determinations” without “treat[ing] legislative action as dispositive.” Id. at 445.

The court also relied heavily on Restatement (Second) of Torts § 874A, which

likewise employs a case-by-case approach. See id. (citing Restatement (Second)

of Torts § 874A, at 301 (Am. L. Inst. 1979)).10 In addition, the court applied a

series of “special factors,” concluding that “none disfavor a damages action here.”

Id. at 449. At the end of that process, the court found a private right of action

existed to recover damages under article I, section 18 of that state’s constitution.

Id. at 450.

With respect, we think this opinion, although well-written and

well-reasoned, nonetheless takes both the judiciary and the legislature outside

their proper roles. Legislatures pass laws, which should be followed unless they

year earlier, the Vermont Supreme Court concluded that a private right of action for damages was available under the search and seizure clause of the Vermont Constitution under certain circumstances. Zullo v. State, 205 A.3d 466, 490–92 (Vt. 2019). 10We likewise cited to the Restatement (Second) of Torts in Godfrey. 898 N.W.2d at 858 n.4 (citing Restatement (Second) of Torts § 874A & cmt. a, at 301 (Am. L. Inst. 1979)). It should be noted that the Restatement (Third) of Torts contains no counterpart to § 874A. In October 2022, the American Law Institute (ALI) announced a project, “Restatement of the Law, Constitutional Torts.” ALI’s website indicates that it “will examine the law of individual rights to sue government employees and others ‘acting under color of state law’ under 42 U.S.C. § 1983 and Bivens actions.” Restatement of the Law, Constitutional Torts, Am. L. Inst., https://www.ali.org/projects/show/constitutional-torts [https://perma.cc/LGX5-YHYC]. It is unclear from this description whether the project will include state constitutional claims. 35

are unconstitutional. They do not make “determinations.” Courts decide cases

based on precedent and common sense (in the case of the common law) or based

on statutory text (in the case of legislation). Courts should be judging, not

practicing “judiciousness.”

Our constitution is our highest law. It supersedes ordinary legislation to

the contrary. But in most areas, it does not come with a private damages remedy.

And it does not need our artificial assistance, in the form of a damages remedy

not contemplated by our framers, to maintain that supremacy. See Godfrey,

898 N.W.2d at 881 (Mansfield, J., dissenting) (“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.”).

In the end, we believe Godfrey rests on the proposition that every wrong

should have a potential money damages remedy. See id. at 848 (lead opinion)

(“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.” (quoting

Marbury v. Madison, 5 U.S. 137, 163 (1803))); see also Mack, 522 P.3d at 442

(quoting the same passage). But that isn’t quite true. Marbury didn’t receive a

remedy, damages or otherwise. See 5 U.S. at 180. And persons who are harmed

by illegal conduct often do not receive a remedy for any number of different

reasons.

In any event, we are aware of no bar to a federal constitutional damages

claim under 42 U.S.C. § 1983 against Smith in his individual capacity. In that 36

instance, the claim and the available relief would be authorized and governed by

an Act of Congress rather than developed by our court through a quasi-judicial,

quasi-legislative process not approved by our constitution or foreseen by its

framers. It should also be noted that the ITCA and the IMTCA generally require

the State or the municipality—as the case may be—to indemnify their employees

for federal constitutional tort claims. See Iowa Code § 669.21(1); id. § 670.8(2).

In summary, we hold that Godfrey should be overruled, and we no longer

recognize a standalone cause of action for money damages under the Iowa

Constitution unless authorized by the common law, an Iowa statute, or the

express terms of a provision of the Iowa Constitution.

V. Conclusion.

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

AFFIRMED.

All justices join this opinion. Christensen, C.J., files a concurrence. 37

#22–1010, Burnett v. Smith

CHRISTENSEN, Chief Justice (concurring).

I join the majority and support overruling Godfrey v. State, 898 N.W.2d

844 (Iowa 2017). I only write separately to address any alleged inconsistency

between my decision today and my past decisions regarding stare decisis—most

notably, my partial dissent in Planned Parenthood of the Heartland, Inc. v.

Reynolds ex rel. State (PPH IV), 975 N.W.2d 710, 750 (Iowa 2022) (Christensen,

C.J., concurring in part and dissenting in part). There, I dissented from the

majority’s decision to overrule Planned Parenthood of the Heartland v. Reynolds

ex rel. State (PPH II), 915 N.W.2d 206 (Iowa 2018), “because I [did] not believe

any special justification ‘over and above the [majority’s] belief “that the precedent

was wrongly decided” ’ warrant[ed] such a swift departure from the court’s 2018

decision.” PPH IV, 975 N.W.2d at 750 (quoting Kimble v. Marvel Ent., LLC, 576

U.S. 446, 455–56 (2015)). In doing so, I stressed the importance of stare decisis

and its vital role in sustaining the legitimacy of judicial review and maintaining

the public’s faith in the judiciary. Id. at 750–52. My respect for stare decisis has

not changed.

The difference between my belief that stare decisis restricted us from

overruling the 2018 PPH II decision and my belief today that it does not limit us

from overruling Godfrey is how they fare under the considerations we analyze in

reexamining a prior holding. See id. at 752–53. In summary, there is a

substantial difference between the workability of PPH II’s strict scrutiny

standard, which we were examining for only the first time in PPH IV, and the 38

workability of Godfrey, which we have analyzed seemingly ad nauseam since the

court issued that decision. See, e.g., Wagner v. State, 952 N.W.2d 843, 858–62

(Iowa 2020); Venckus v. City of Iowa City (Venckus I), 930 N.W.2d 792, 800–03

(Iowa 2019); Baldwin v. City of Estherville (Baldwin II), 929 N.W.2d 691, 698–700

(Iowa 2019); Baldwin v. City of Estherville (Baldwin I), 915 N.W.2d 259, 279–81

(Iowa 2018); cf. Lennette v. State, 975 N.W.2d 380, 402 (Iowa 2022) (McDonald,

J., concurring).

The federal district courts in Iowa and the Iowa Court of Appeals have

similarly questioned Godfrey’s reach. See, e.g., Baldwin v. Estherville, No. C 15–

3168–MWB, 2017 WL 10290551, at *3 (N.D. Iowa Oct. 2, 2017) (certifying a

question to the Iowa Supreme Court of whether a defendant can raise a defense

of qualified immunity to an individual’s claim of damages for violations of article

I, section 1 and section 8 of the Iowa Constitution); Blazek v. City of Nevada, No.

18–1593, 2019 WL 3721358, at *4 (Iowa Ct. App. Aug. 7, 2019) (acknowledging

our court has not clarified whether the public-duty doctrine applies to

constitutional tort claims under Godfrey). This term alone, we have several

pending cases that have been fully briefed and argued that raise issues relating

to the interpretation and application of Godfrey.

As I wrote in PPH IV, we should respect legal authority “because it is

important that courts, and lawyers and their clients, may know what the law is

and order their affairs accordingly.” PPH IV, 975 N.W.2d at 754. Godfrey never

allowed for that because it raised more questions than answers. And as the

majority notes, our methodology for answering those questions has not been 39

consistent. Stare decisis “promotes the evenhanded, predictable, and consistent

development of legal principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the judicial process.” Id. at

751 (quoting Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138

S. Ct. 2448, 2478 (2018)). But nothing about the applicability of Godfrey has

been evenhanded or predictable.

Notably, even in my partial dissent in PPH IV, I highlighted how crucial the

court’s power to overrule is “for maintaining constitutionalism by correcting

mistakes and updating the law.” Id. at 752 (quoting Steven J. Burton, The

Conflict Between Stare Decisis and Overruling in Constitutional Adjudication,

35 Cardozo L. Rev. 1687, 1697 (2014)). I have also joined various opinions in my

time on the court to either expressly overrule past precedents or support the

need to overrule such precedents. See, e.g., Garrison v. New Fashion Pork LLP,

977 N.W.2d 67, 76–77 (Iowa 2022) (overruling Gacke v. Pork Xtra, L.L.C., 684

N.W.2d 168 (Iowa 2004)); State v. Kuuttila, 965 N.W.2d 484, 488 (Iowa 2021)

(Waterman, J., dissenting, joined by Christensen, C.J., and Mansfield, J.) (“We

should overrule State v. Wright[, 961 N.W.2d 396 (Iowa 2021),] and rejoin the

clear majority of courts holding that antiscavenger ordinances don’t trigger a

search warrant requirement to peruse property abandoned for disposal.”); State

v. Kilby, 961 N.W.2d 374, 383 (Iowa 2021) (overturning State v. Pettijohn, 899

N.W.2d 1 (Iowa 2017)); Goodwin v. Iowa Dist. Ct., 936 N.W.2d 634, 649 (Iowa

2019) (McDonald, J., concurring specially, joined by Christensen, C.J.) (arguing

stare decisis does not compel us to uphold State v. Lyle, 854 N.W.2d 378 (Iowa 40

2014), and State v. Roby, 897 N.W.2d 127 (Iowa 2017)). Unlike PPH II, those cases

contained the sort of special justifications beyond the belief that they were

wrongly decided to warrant overruling them. See PPH IV, 975 N.W.2d at 752.

Those same sort of special justifications exist here to overrule Godfrey, so I join

the majority, which details these reasons more in-depth.