Nixon v. State

704 N.W.2d 643, 2005 Iowa Sup. LEXIS 133, 2005 WL 2398232

• Court: Supreme Court of Iowa
• Decided: September 30, 2005
• Docket: 03-1850
• Status: Published

Opinions

STREIT, Justice.

The King can do no wrong, but will he do right by our orphans? ¹ Over sixty-five years ago, a professor at the University of Iowa performed an experiment on children at the Iowa Soldiers’ Orphans’ Home testing a theory regarding the origins of stuttering in young children. The children did not find out they were actual participants in the study for seven decades.

When the children did find out, they sued the State of Iowa for damages relating to their lifelong battle with speech problems. The State filed a motion to dismiss. The State claimed it had not waived its sovereign immunity for the plaintiffs’ injuries. The district court overruled the motion. We likewise conclude the State waived its sovereign immunity and affirm.

I. Principles of Review

At the outset, it is important to point out the procedural posture of this case, because it affects our recitation of the facts. We review a district court’s ruling on a motion to dismiss for correction of errors at law. Brubaker v. Estate of De-Long, 700 N.W.2d 323, 326 (Iowa 2005). A motion to dismiss should be granted only if the plaintiffs petition “on its face shows no right of recovery under any state of facts.” Rees v. City of Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004) (citation omitted). For this reason, we must view the facts in the light most favorable to the plaintiffs. Id. Nothing in this opinion, therefore, should be construed as a ruling on the merits of the plaintiffs’ claims.

II. Background Facts and Proceedings

In 1939, Professor Wendell Johnson of the University of Iowa (f/k/a “The State University of Iowa”) designed a study to test his diagnosogenic (or labeling) theory of stuttering. Professor Johnson believed nonstutterers could become stutterers if others labeled them as stutterers. Professor Johnson directed Mary Tudor, a graduate student at the University, to conduct the study on children at the Iowa Soldiers’ Orphans’ Home.

To test Professor Johnson’s theory, six nonstuttering children at the Home were told they were stutterers or were in danger of becoming stutterers. These children (or their respective estates) are the plaintiffs in the underlying action.² They were given negative “therapy” designed to make them stutter. At the conclusion of the study, Tudor concluded all six children displayed a loss of self-confidence, self-image, and self-esteem. Tudor observed detrimental effects on their speech delivery. Over the next few decades the experiment was labeled the “Monster Study,” and the title persists today.

For over sixty years, no one told the children about the true nature of the study. In June 2001, however, a newspaper discovered the truth and published a story about the Monster Study.

In April 2003, the plaintiffs sued the State in the district court for intentional infliction of emotional distress, fraudulent misrepresentation, breach of fiduciary duty, invasion of privacy, and civil conspiracy. The plaintiffs claimed the State’s tor-tious actions continued to the present day because it concealed the study from them over the years.

The State filed a motion to dismiss. It maintained the plaintiffs’ claims failed because the alleged injuries occurred when the State was sovereignly immune, i.e., before the effective date of the Iowa Tort Claims Act. The district court, however, summarily concluded the petition “[e]on-tain[ed] claims upon which relief may be granted” and denied the motion. The State applied for interlocutory review, which we granted. We will restrict our analysis to the pertinent argument in this case: Whether the State has waived its sovereign immunity for this claim under the Iowa Tort Claims Act.³

III. Analysis

At the time the State first injured the plaintiffs in 1939, it was immune from suit under the common-law doctrine of sovereign immunity. See Montandon v. Hargrave Constr. Co., 256 Iowa 1297, 1299-1300, 130 N.W.2d 659, 660 (1964). This doctrine came to the United States through the old English maxim that “the King can do no wrong” and was therefore not liable unless he first consented to the suit. See generally Erwin Chemerinsky, Shifting the Balance of Power? The Supreme Court, Federalism, and State Sovereign Immunity, 53 Stan. L.Rev. 1201, 1201-02 (2001). The reasons usually advanced for the doctrine’s support were “public policy, absurdity of a wrong committed by an entire people, impossibility of carrying on governmental functions if tax money is diverted, and the government’s status as a nonprofit organization.” Torts-Govemmental Immunity — Ioioa Reaffirmation (Boyer v. Iowa High School Athletic Ass’n (Iowa 1964)), 50 Iowa L.Rev. 226, 227 n.5 (1964) (citations omitted). For nearly 100 years, the doctrine of sovereign immunity was the law of our state, but by the mid-1960s, the doctrine had become the subject of a great deal of criticism by both commentators and the courts. Boyer v. Iowa High School Athletic Ass’n, 256 Iowa 337, 342-43,127 N.W.2d 606, 609-10 (1964). In the 1964 decision, Boyer v. Iowa High School Athletic .Association, we were directly confronted with whether the doctrine “should be abrogated in Iowa as outmoded, harsh and not in keeping with the modern trend of the law.” Id. at 339, 127 N.W.2d at 607. Our five-to-four majority opinion concluded that “abrogation of the doctrine should come from legislative, not judicial action.” Id. In a vigorous dissent, Justice Moore argued:

The whole doctrine of governmental immunity from liability for tort rests upon a rotten foundation. It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, “the King can do no wrong,” should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.

Id. at 349-50, 127 N.W.2d at 613 (Moore, J. dissenting) (citation and internal quotation marks omitted). The Iowa Legislature settled this debate one year later when it enacted the Iowa Tort Claims Act waiving the State’s immunity and permitting it to be sued much like any other private individual. See 1965 Iowa Acts ch. 79. But apparently this forty-year-old debate concerning the king’s liability for his past indiscretions still simmers within our court today.

As presently written, the Iowa Tort Claims Act contains a statute of limitations that bars certain stale claims. The Act states:

Every claim and suit permitted under this chapter shall be forever barred, unless within two years after such claim accrued, the claim is made in writing to the state appeal board under this chapter.

Iowa Code § 669.13 (2005) (emphasis added). Precedent clearly holds a claim does not “accrue” until the plaintiff “discovers the injury or by the exercise of reasonable diligence should have discovered it.” Vachon v. State, 514 N.W.2d 442, 445 (Iowa 1994); see also Trobaugh v. Sondag, 668 N.W.2d 577, 581 (Iowa 2003); Callahan v. State, 464 N.W.2d 268, 271 (Iowa 1990). It is undisputed that the plaintiffs made their claims in writing to the state appeal board within two years after discovering the cause of their injuries. For this reason, the plain and unambiguous language of the limitations provision of the Iowa Torts Claims Act does not bar their cause of action. The district court should be affirmed for this reason. See Coralville Hotel Assocs., L.C. v. City of Coralville, 684 N.W.2d 245, 248 (Iowa 2004) (“[PJrecise and unambiguous language should be given its plain and rational meaning without resort to the rules of statutory construction.”).

The State urges us, however, to go beyond the statutory text to divine legislative intent. It asks us to travel forty years into the past to resurrect a “sunrise” provision the legislature repealed long ago. For as originally enacted, the Iowa Tort Claims Act contained the following language:

[A] ‘claim’ includes only such claims accruing on or after January 1,1963....

1965 Iowa Acts ch. 79, § 2(5), repealed by 1969 Iowa Acts ch. 81, § 2. Based upon this repealed “sunrise” provision — as well as a long-repudiated judicial construction of the verb “to accrue” as “to occur” — the State concludes the Iowa Torts Claim Act is intended to bar all claims for injuries that occurred before January 1, 1963. The Iowa Tort Claims Act, the State paradoxically concludes, means what it does not say; indeed, the State interprets the Act to say what the legislature explicitly said it does not say when it repealed the relied-upon language in 1969. The State effectively asks us to reenact statutory language the legislature repealed long ago. We will not do so. See Doe v. Ray, 251 N.W.2d 496, 501 (Iowa 1977) (“[W]e must avoid legislating in our own right and placing upon statutory language a strained, impractical or absurd construction.”); cf. Indep. Sch. Dist. v. Iowa Employment Sec. Comm’n, 237 Iowa 1301, 1308, 25 N.W.2d 491, 496 (1946) (noting “history of statute may properly be considered in case of ambiguity ” (emphasis added) (citation omitted)). The repealed portion of the Iowa Tort Claims Act was the statute of limitations provision, and we do not find it appropriate to befuddle our sovereign immunity analysis with statute of limitations arguments that are not now before us.

However, even if the repealed language of the Iowa Tort Claims Act were somehow still enforceable, it would not bar the plaintiffs’ claims. We need not bog ourselves down in all the intricacies of the State’s historical-statutory analysis. The linchpin of the State’s argument is its interpretation of the verb “to accrue,” and in what follows, we focus upon it.

As originally enacted, the Iowa Tort Claims Act only waived the State’s sovereign immunity for those claims “accruing on or after January 1, 1963.” 1965 Iowa Acts ch. 79, § 2(5), repealed by 1969 Iowa Acts ch. 81, § 2. It also imposed a statute of limitations: once a claim “accrued,” the plaintiff had two years or until January 1, 1967 to file a claim with the state appeal board, whichever was later. 1965 Iowa Acts ch. 79, § 13, repealed by 1969 Iowa Acts ch. 81, § 2.⁴

After surveying a century’s worth of Iowa cases, the State concludes the verb “to accrue” in 1965 meant “to occur” or “to happen.” See, e.g., Ogg v. Robb, 181 Iowa 145, 156, 162 N.W. 217, 220-21 (1917) (concluding claim accrued when injury occurred, not when plaintiff discovered cause of injury). While the State recognizes that use of the verb “to accrue” in the Iowa Tort Claims Act now incorporates the discovery rule, see, e.g., Vachon, 514 N.W.2d at 445, it opines that the legislature could not have foreseen this judicial change in the verb’s meaning in 1965 when it passed the Iowa Tort Claims Act. At best, the State believes, matters were unsettled when the legislature passed the Act. See Chrischilles v. Griswold, 260 Iowa 453, 462-63, 150 N.W.2d 94, 100 (1967) (observing a trend in other jurisdictions to adopt the discovery rule and adopting the discovery rule in negligence actions) (citing Urie v. Thompson, 337 U.S. 163, 169-70, 69 S.Ct. 1018, 1024-25, 93 L.Ed. 1282, 1292 (1949)); Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 812-13 (2d Cir.1960); Polzin v. Nat’l Co-op. Refinery Ass’n, 175 Kan. 531, 266 P.2d 293, 297 (1954); Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785, 791 (1963); Dry den v. Omaha Steel Works, 148 Neb. 1, 26 N.W.2d 293, 295 (1947); Rothman v. Silber, 83 N.J.Super. 192, 199 A.2d 86, 92 (1964); Foley v. Rittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517, (1949); Girikowski v. Ginkowski, 28 Wis.2d 530, 137 N.W.2d 403, 406 (1965)). The legislature, it is urged, could only have meant to use the verb “to accrue” in its old-fashioned sense because we cannot assume it knew how other courts had interpreted other tort claims acts or how we might interpret it in the future.

This reasoning is flawed on several levels. At the most basic level, one wonders: What if the legislature hadn’t repealed the sunrise provision? Would the State’s argument have any merit? Surely not: there can be no question that if the legislature had not repealed the sunrise provision, the present definition of “to accrue,” which incorporates the discovery rule, would not bar the plaintiffs’ claims. Paradoxically, then, the State relies on repealed language which, even if it were still in force, would not bar the plaintiffs’ claims.

It is apparently the mere fact of the repeal that matters so much to this analysis. The State focuses upon the repeal because the State believes it tells us something about what the legislature meant when it enacted the Iowa Torts Claims Act in 1965. See Doe, 251 N.W.2d at 501. (“[I]n construing a statute we must be mindful of the state of the law when it was enacted”); see also Explanation of S.F. 376, 63d Gen. Assemb., Reg. Sess. (Iowa 1969) (stating that the language was repealed because it was “no longer necessary in view of the [two-year] statute of limitations”). The State thus attempts to freeze the meaning of the repealed statute to the meaning it allegedly had in 1965 — even though there is no reported case attributing that meaning.⁵

Even if we were to pretend it were sometime between 1965 and 1969 and assume the legislature intended to give the verb “to accrue” a single, immutable meaning for all time,⁶ it is more probable the legislature intended to incorporate the discovery rule in the original Iowa Tort Claims Act. The Act waived the State’s sovereign immunity for those claims “accruing on or after January 1, 1963.” 1965 Iowa Acts ch. 79, § 2(5) (emphasis added), repealed by 1969 Iowa Acts ch. 81, § 2. Notably, it does not waive the State’s sovereign immunity for claims “happening on or after January 1, 1963” or “occurring on or after January 1, 1963.” Surely the legislature knew how to use these verbs.

If we take a step back and look at the relevant statutory language in its entirety, the legislature demonstrated it knew there was a difference between “occur” and “accrue:”

“Claim” means any claim against the state of Iowa for money only, on account of damage to or loss of property or on account of personal injury or death, caused by the negligent or wrongful act or omission of any employee of the state while acting within the scope of his office or employment, under circumstances where the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death, in accordance with the law of the place where the act or omission occurred,. However, “claim” includes only such claims accruing on or after January 1, 1963....

1965 Iowa Acts ch. 79, § 2(5), repealed by 1969 Iowa Acts ch. 81, § 2 (emphasis added). Clearly, the legislature’s use of the verb “occurred” in the sentence immediately before the last sentence, above, shows the legislature must have meant something other than “to occur” when it used the verb “accruing.” Otherwise, it simply would have used the word “occurring.”

In the coming decades, we would incorporate the discovery rule into the Act because it ivas the comet interpretation of the statute. Moreover, there was nothing revolutionary about the cases in which we did so, Vachon and Callahan; neither expressly overruled any prior cases. The Iowa Tort Claims Act was a relatively new statute — a blank slate. Simply because we were not presented with the opportunity to construe the use of the verb “to accrue” in the Act between 1965 and 1969 does not mean it did not include a discovery rule.

Had we been given the chance, it is likely we would have — or at the very least should have — given the statutory phrase the meaning the plaintiffs suggest. It is the proper interpretation of the statute, according to this court in Vachon in 1994. It is also the proper interpretation according to the United States Supreme Court in 1979. United States v. Kubrick, 444 U.S. Ill, 123-24, 100 S.Ct. 352, 360, 62 L.Ed.2d 259, 270-71 (1979) (holding the discovery rule applies to the Federal Tort Claims Act and that the time limitation of U.S.C. § 2401(b) does not commence until discovery of the injury). As we recognized in Callahan, the Federal Tort Claims Act is “very similar” to the Iowa Act, and for this reason, we give considerable weight to cases interpreting that Act. 464 N.W.2d at 271; see also Feltes v. State, 385 N.W.2d 544, 547 (Iowa 1986); Adam v. Mount Pleasant Bank & Trust Co., 340 N.W.2d 251, 252 (Iowa 1983). As we also pointed out in Chrischilles — decided around the same time as the legislature passed the Act — a trend in this direction had already developed. 260 Iowa at 463, 150 N.W.2d at 100 (citations omitted). Indeed, the United States Supreme Court had recognized the discovery rule as early as 1941. Urie, 337 U.S. at 169-70, 69 S.Ct. at 1024-25, 93 L.Ed. at 1292 (holding the discovery rule applies to the time limitations of the Federal Employers Liability Act, which, like our tort claims act, begins to run on “accrual.”).

In sum, there is no reason why we should judicially reenact statutory language the legislature expressly repealed and then engraft upon that statute a construction of a word that we would not adopt today had we been presented with the opportunity back in 1965. It is not our role to narrow the waiver of immunity granted by our legislature through our power to interpret statutes. See Doe, 251 N.W.2d at 501 (recognizing that in interpreting a statute “we must avoid legislating in our own right”). We must simply permit these plaintiffs access to the same remedy the Act will surely afford to those who are injured today but who will not discover the cause of their injuries for years to come.

IV. Disposition

The district court is affirmed. This matter is remanded to the district court for further proceedings not inconsistent with this opinion.

AFFIRMED.

All justices concur except TERNUS and CADY, JJ., who dissent separately, and CARTER, JJ., who joins both dissents.

1 . See generally Michael A. Olsen, The King Can Do No Wrong, But Will He Do Right By Our School Children?, 1995 BYU Educ. & L.J. 55 (1995).

2 . The surviving plaintiffs are Mary Nixon, Kathryn Meacham, and Hazel Dornbush. The deceased plaintiffs are Phillip Spieker, Betty Romp, and Clarence Fifer, who are represented by Tonya Tolbert, Russell Ehrhardt, and Susan Dawson, respectively.

3 . We will not broaden our analysis to entertain arguments involving statutory construction of terms relevant to a statute-of-limitations analysis because this is a waiver of immunity case, not a statute of limitations case. Any attempt to make this a statute of limitations issue is past the State’s original motion to dismiss on grounds of governmental immunity.

4 . Both provisions of the statute show the legislature intended the repealed Act to be retroactive. Only the extent of the retroactivity is at issue.

5 . Any reliance upon on our language in Graham v. Worthington, 259 Iowa 845, 855, 146 N.W.2d 626, 634 (1966), is misplaced. We were not presented with the issue here in that case, and therefore any language on our part equating "to accrue” with "to commit” is mere obiter dictum. See Boyles v. Cora, 232 Iowa 822, 847, 6 N.W.2d 401, 413 (1942) (defining obiter dicta as “passing expressions of the court, wholly unnecessary to the decision of the matters before the court”).

6 . Given that the verb "to accrue” is a term of art, see, e.g., Dean v. Iowa-Des Moines Nat’l Bank, 227 Iowa 1239, 1242, 281 N.W. 714, 717 (1938), and recognizing the trend in 1965 to incorporate a discovery rule into that phrase, it is just as probable that the legislature did not engraft any particular meaning to the verb "to accrue” but, recognizing it was a term of art, left it for the judiciary to construe. As Justice Holmes once wrote, "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the times in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918). The legislature may have recognized as much.