Christopher J. Godfrey v. 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

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.

Defendant 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

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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 brining 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.

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#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

This text is long and has been trimmed here. Open the source document for the complete record.