Anne Hensler Vs. City Of Davenport

IN THE SUPREME COURT OF IOWA

No. 09–0608

Filed November 12, 2010

ANNE HENSLER,

Appellee,

vs.

CITY OF DAVENPORT,

Appellant.

Appeal from the Iowa District Court for Scott County, Gary D.

McKenrick, Judge.

A city appeals a decision holding its ordinance unconstitutional

and awarding attorney fees to the plaintiff. The plaintiff cross-appeals

the award of attorney fees. APPEAL AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED; CROSS-APPEAL REVERSED AND

REMANDED.

Thomas D. Warner, Davenport, and Christopher S. Jackson,

Davenport, for appellant.

Randall C. Wilson of ACLU of Iowa Foundation, Des Moines, and

Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for

appellee.

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WIGGINS, Justice.

The City of Davenport appeals a district court order finding its

parental responsibility ordinance unconstitutional. The city also appeals

the amount of the attorney fees awarded to the plaintiff. The plaintiff

cross-appeals the attorney fee award. On appeal, we find the

presumption of failure to exercise reasonable parental control under the

Davenport Parental Responsibility Ordinance is unconstitutional and

sever the unconstitutional portion of the ordinance from the remainder of

the ordinance. We also vacate the attorney fee award and remand the

case to the district court to reconsider its attorney fee award by

considering the level of the plaintiff’s success as one of the factors in

determining reasonable attorney fees. Accordingly, we affirm in part and

reverse in part the judgment of the district court, remand the case to the

district court to reconsider its award of attorney fees, and enter judgment

consistent with this opinion.

I. The Davenport Parental Responsibility Ordinance.

On July 21, 1999, the Davenport City Council adopted ordinance

9.56, entitled “Parental Responsibility.” The ordinance’s stated purpose

is to “preserve the peace, safety, health and welfare of the citizens of

Davenport, Iowa, and the city’s visitors and guests.” Davenport Mun.

Code § 9.56.010 (2006). The ordinance further states its findings and

remedial objectives as follows:

The city council finds that there has been an increase in the

number of criminal acts committed by juveniles. The city

council further finds that those who bring children into the

world, or those who assume a parenting role, but who fail to

effectively teach, train, guide and control them, should be

accountable to the community under the law. Those who

need assistance and training should be aided; those who

neglect their parenting duties should be encouraged to be

more diligent, through civil sanctions, if necessary. This

chapter should be construed to achieve these remedial

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objectives by addressing situations where parents or

guardians have failed or neglected to act responsibly or

reasonably in the supervision of their minor children.

Id. There is no legislative history supporting passage of the ordinance

beyond the minutes of the Davenport City Council’s meetings, which only

record the council members’ votes.

The liability portions of the ordinance provide as follows:

9.56.020 Definitions.

The following words shall have the following meanings

when used in this chapter, unless a different meaning is

clear from context or usage.

A. “Parent” means a father, mother, legal guardian or

any other person having or who has assumed the care,

control or custody in the sense that the child lives with them

and they look after that child, either by court order or on a

voluntary basis.

B. “Minor” means any person who has not attained

the age of eighteen years old.

C. “Adjudication” means that a juvenile court has

entered a finding of fact that a minor has committed a

delinquent act as defined by Iowa law.

D. “Informal adjustment” means a disposition of a

juvenile investigation or case which results in a nonjudicial

admission of guilt and nonjudicial agreement between

juvenile court services and a minor. For purposes of this

chapter a consent decree as provided for by Iowa law shall be

deemed an informal adjustment.

E. “Occurrence” means a law enforcement agency has

probable cause to believe a particular child engaged in a

delinquent act and has filed a delinquency complaint with

the court based upon such probable cause or has otherwise

taken said child into custody.

9.56.030 Parental responsibility.

The parent of a minor shall not fail to exercise

reasonable control over said minor.

9.56.040 Parental duties.

A. It is the duty of the parent of a minor child or

minor children to exercise sufficient control over a said

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minor(s) to prevent the minor(s) from committing any

unlawful act in violation of federal law, state law or city

ordinance. Any occurrence is a breach of this duty.

A second occurrence or an adjudication or the entry of

an informal adjustment agreement involving a minor related

to any unlawful act, and prior notification to the parent of

the parental responsibility ordinance including notice of

possible fines or penalties establishes a rebuttable

presumption that the parent failed to exercise reasonable

parental control of said parent’s minor(s).

B. The presumption that a parent has failed to

exercise reasonable parental control of a minor may be

rebutted by evidence that establishes that the parent:

1. Kept illegal drugs and/or weapons out of the home;

and kept legal weapons locked and inaccessible to minors.

2. Took reasonable and responsible efforts to require

their minor to observe the curfew ordinance.

3. Took reasonable and responsible actions to insure

that their minor regularly attended school sessions and

limited school absences to situations approved by the

parent.

4. Arranged adequate supervision of their minor child

by a competent adult under circumstances when the parent

was unable to personally supervise their child.

5. Took reasonable and responsible action to prevent,

deter or report their minor child’s involvement in unlawful

activity in violation of federal law, state law or city ordinance;

i.e., reported stolen property to police, turned in illegal or

dangerous weapons to the police, prevented the minor’s

association with known juvenile delinquents.

6. Sought assistance from appropriate agencies prior

to the adjudication or informal adjustment.

Id. §§ 9.56.020–.040 (emphasis added). Finally, the penalties the

ordinance imposes increase with subsequent “occurrences:”

9.56.050 Penalties.

Any person who violates this chapter shall be guilty of

a municipal infraction violation. A separate and distinct

offense shall be regarded as being committed each day on

which such person violates the provisions of this chapter.

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A. Upon the occurrence of a first offense the city will

issue the parent a warning letter which states that the

parent is in violation of the parental responsibility ordinance

together with a description of the nature of the parent’s

violation and a statement setting forth the fines and/or

consequences of future violations.

B. Upon the occurrence of a second offense the parent

will be ordered to attend and successfully complete a

recognized course of instruction on parenting skills and/or

techniques. A parent failing to successfully complete such

course may be subject to contempt of court.

C. Upon the occurrence of a third or subsequent

offense the penalty shall be a civil penalty in amount of at

least one hundred dollars but not more than seven hundred

fifty dollars and such other order, if any, that the court

deems equitable.

Id. § 9.56.050.

II. Background Facts and Proceedings.

Anne Hensler is a registered nurse living in Davenport. Anne has

three children, Holly (fifteen), Nicholas (seventeen), and Peter (nineteen).

Holly and Nicholas still live with Anne. Approximately fourteen years ago

Anne was divorced, and since that time she has raised Holly, Nicholas,

and Peter on her own with help from her mother and father. Anne’s

mother was especially helpful and was a substantial influence in the

lives of Anne’s children. Anne’s children were well behaved and good

students. Nicholas excelled in math and science, was an honor roll

student, and was a member of the math club and science club. However,

at the end of 2004 Anne’s mother suddenly became terminally ill and

died in December. Anne’s children were very close to her, and her death

shocked everyone.

Soon after the death of Anne’s mother, kids at school began calling

Nicholas “brainiac,” and in response, Nicholas began to withdraw and did

not want to go to school. Nicholas began talking less and started

hanging out with different friends who Anne did not know. His grades

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began to drop, and he stopped participating in sports, as well as the

math and science clubs. He became strong willed and difficult to control.

By this time, Nicholas was approximately 6′2″ tall and weighed

approximately 200 pounds. Due to his size, his mother could not

physically control him.

On November 30, 2007, Anne first learned Nicholas was smoking

marijuana when the Davenport police caught him smoking marijuana

with other minors in a school parking lot at 4:11 a.m. The police took

Nicholas into custody for violation of the city’s curfew ordinance and

possession of a controlled substance. The school gave Nicholas a three-

day suspension. The police referred him to the juvenile court due to this

incident. In addition, the city issued Anne a “Parental Responsibility

Ordinance Warning Letter” for her first violation of the ordinance. After

this incident, Nicholas continued to smoke marijuana, sneak around,

and cut class. The school would call Anne and tell her when Nicholas

was missing from school periods, and she resorted to going to the school

periodically to make sure he was in class. Anne also began reading

parenting books to try to figure out how to cope with Nicholas’s behavior.

On December 13 at approximately 9:51 p.m., Davenport police

officers stopped a vehicle occupied by three minors for traffic violations

and discovered two marijuana pipes and a baggie with marijuana residue

in it. Nicholas was one of the passengers of the vehicle, and the police

transported him to the station because he was being uncooperative at

the scene. The police issued Nicholas citations for possession of a

controlled substance and possession of drug paraphernalia. The police

summoned Anne to the station and issued her a municipal citation for

her second violation of the ordinance. Due to this incident, the police

again referred Nicholas to the juvenile court system. Before the juvenile

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court appointment took place, the Davenport police picked up Nicholas

again on a third charge. Nicholas ran away from home and stayed with

some of his friends after Anne attempted to strictly enforce her rules.

At the juvenile court appointment, the court ordered Nicholas to

participate in a drug rehabilitation program and placed him on

probation. Anne paid for the drug rehabilitation program. Anne also

voluntarily took a parenting class entitled “Love and Logic” because she

thought there was something she needed to learn. Upon taking the

parenting class, Anne found she did all the things that were suggested to

prevent juvenile delinquency.

Anne filed a motion to dismiss the municipal citation for her

second violation of the ordinance. However, before the hearing on the

motion to dismiss, Anne filed a civil rights petition, under 42 U.S.C.

§ 1983 (2006), against the City of Davenport for declaratory and

injunctive relief. Anne claimed the ordinance violates her right to due

process of law. Anne also claimed the enactment of the state juvenile

laws preempted the city’s power to enact the ordinance. The court

stayed Anne’s motion to dismiss until her civil rights petition was

resolved.

In its ruling on Anne’s civil rights claim, the district court

concluded Anne failed to prove any legislative enactment of the state

legislature preempted the ordinance. The court also rejected Anne’s

procedural due process challenge. The court did determine, however,

that the ordinance violated Anne’s substantive due process rights under

the United States and Iowa Constitutions. Based on this civil rights

violation, the court awarded attorney fees in favor of Anne’s attorneys for

$20,857.40.

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The city appeals these rulings. Anne cross-appeals the attorney

fee award.

III. Issues.

The city contends the district court erred in holding the ordinance

is a denial of substantive due process. Alternatively, the city claims if

the ordinance denies substantive due process, the attorney fees awarded

were excessive. In response to the city’s arguments, Anne claims the

ordinance violated her substantive due process rights. If the ordinance

does not violate her substantive due process rights, she urges alternative

grounds upon which we can affirm the district court’s decision. First,

she claims the ordinance violates her substantive due process rights by

interfering with her fundamental right to parent. Next, she claims the

juvenile laws contained in Iowa Code chapter 232 (2007) preempt the

ordinance. Finally, she claims the ordinance contains an irrational and

unfair presumption that if a minor violates the law, the court can

presume the violation was a result of the parent’s failure to exercise

reasonable parental control over the minor. In her cross-appeal, Anne

claims the attorney fee award was inadequate.

IV. Scope of Review.

We review constitutional claims de novo. Formaro v. Polk County,

773 N.W.2d 834, 838 (Iowa 2009); Ames Rental Prop. Ass’n v. City of

Ames, 736 N.W.2d 255, 258 (Iowa 2007). In doing so, we independently

evaluate the totality of the circumstances. State v. Shanahan, 712

N.W.2d 121, 131 (Iowa 2006). The district court’s findings of fact are not

binding. Id. We do, however, give deference to those findings because

the district court had the opportunity to assess the credibility of the

witnesses. Id. Moreover, “ ‘statutes are cloaked with a presumption of

constitutionality.’ ” State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005)

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(quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002)). If

the statute is capable of being construed in more than one way, one of

which is constitutional, we must adopt the constitutional construction.

Id. Our review as to whether state law preempts the ordinance is a

matter of statutory construction and is reviewable for correction of errors

at law. City of Davenport v. Seymour, 755 N.W.2d 533, 537 (Iowa 2008).

V. Substantive Due Process.

The district court found the ordinance to violate substantive due

process as being overbroad on its face and in its application. In support

of its ruling, the district court cited as authority State v. Bower, 725

N.W.2d 435, 443–44 (Iowa 2006), and City of Chicago v. Morales, 527

U.S. 41, 52, 119 S. Ct. 1849, 1857, 144 L. Ed. 2d 67, 77–78 (1999).

Although the district court cited both the Iowa and United States

Constitutions’ Due Process Clauses in its ruling, Morales was decided

under the United States Constitution. Morales, 527 U.S. at 53, 119

S. Ct. at 1857, 144 L. Ed. 2d at 78. While we decided Bower under the

state and federal constitutions, we interpreted the Iowa Constitution

claim as we would the United States Constitution claim because Bower

did not suggest a reason to interpret the two constitutions differently.

Bower, 725 N.W.2d at 441. Moreover, on appeal Anne does not cite the

Iowa Constitution in her brief on this issue. Accordingly, we will decide

this case only under the United States Constitution’s Due Process

Clause. 1

1Even if we could find Anne argued and preserved an Iowa Constitution claim on

appeal by citing a paragraph from the district court’s decision, we would still decide the

case by applying the general principles as outlined by the Supreme Court in

interpreting the United States Constitution because neither party has advanced a

standard for interpreting the due process clause under the Iowa Constitution differently

from its Federal Constitution counterpart. See State v. Bruegger, 773 N.W.2d 862, 883

(Iowa 2009) (applying the Supreme Court’s analysis to a cruel-and-unusual-

punishment challenge under the Iowa Constitution when the defendant did not argue

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We believe the district court’s reliance on Bower and Morales is

misplaced. Bower involved the interpretation of a harassment-of-a-

public-official statute. Bower, 725 N.W.2d at 439–40. There, the statute

in question criminalized conduct that willfully prevents or attempts to

prevent any public officer or employee from performing the officer’s or

employee’s duties. Id. at 441. The conduct in question involved

defendant’s speech and his close proximity to a police officer when the

officer was investigating another incident. Id. at 439–40. In Bower, we

interpreted the statute narrowly in order to prevent it from being

overbroad. Id. at 444. In doing so, we relied on the following law from

the Supreme Court:

“First, because we assume that man is free to steer between

lawful and unlawful conduct, we insist that laws give the

person of ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not providing fair

warning. Second, if arbitrary and discriminatory

enforcement is to be prevented, laws must provide explicit

standards for those who apply them. A vague law

impermissibly delegates basic policy matters to policemen,

judges, and juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and

discriminatory application. Third, but related, where a

vague statute ‘abut[s] upon sensitive areas of basic First

Amendment freedoms,’ it ‘operates to inhibit the exercise of

[those] freedoms.’ Uncertain meanings inevitably lead

citizens to ‘steer far wider of the unlawful zone . . . than if

the boundaries of the forbidden areas were clearly marked.’ ”

Id. at 441–42 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108–09,

92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 222, 227–28 (1972)) (alterations in

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for a different interpretive standard). We jealously guard it as our right and duty to

differ from the Supreme Court, in appropriate cases, when construing analogous

provisions in the Iowa Constitution. State v. Olsen, 293 N.W.2d 216, 219–20 (Iowa

1980). Thus, we always retain the exclusive prerogative to interpret the Iowa

Constitution more restrictively than the Supreme Court has interpreted comparable

language in the Federal Constitution. Id. at 219.

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original). In Bower, basic First Amendment freedoms were involved. Id.

at 443–44.

In Morales, the Supreme Court was dealing with an antiloitering

ordinance. Morales, 527 U.S. at 45–46, 119 S. Ct. at 1854, 144 L. Ed. 2d

at 74. There, the Supreme Court recognized “the overbreadth doctrine

permits the facial invalidation of laws that inhibit the exercise of First

Amendment rights if the impermissible applications of the law are

substantial when ‘judged in relation to the statute’s plainly legitimate

sweep.’ ” Id. at 52, 119 S. Ct. at 1857, 144 L. Ed. 2d at 77–78 (plurality

opinion) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct.

2908, 2918, 37 L. Ed. 2d 830, 842 (1973)). In Morales, defendants

convicted under the antiloitering law claimed the law inhibited their First

Amendment rights. Id. at 52–53, 119 S. Ct. at 1857, 144 L. Ed. 2d at 78.

In the present case, the district court relied on the overbreadth

doctrine that is applicable to laws infringing on a person’s First

Amendment rights to hold the ordinance invalid on its face. Anne does

not claim the ordinance infringes on her First Amendment rights.

Therefore, the overbreadth doctrine in Bower and Morales is not

applicable to the ordinance. 2

2The Supreme Court has recognized, however, the existence of another

overbreadth doctrine that may invalidate a law on its face when First Amendment rights

are not implicated. See United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095,

2100, 95 L. Ed. 2d 697, 707–08 (1987). Under this doctrine, “the challenger must

establish that no set of circumstances exists under which the [ordinance] would be

valid.” Id. There is a question whether Salerno’s overbreadth doctrine is still viable

when First Amendment rights are not implicated. Compare Hotel & Motel Ass’n of

Oakland v. City of Oakland, 344 F.3d 959, 971–72 (9th Cir. 2003) (abiding by Salerno’s

overbreadth doctrine), with A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305

F.3d 684, 687 (7th Cir. 2002) (discussing the continued viability of Salerno). In her

brief, Anne does not argue for another overbreadth doctrine other than the one used in

Bower and Morales applying to laws infringing on First Amendment rights. Anne also

failed to argue on appeal that the ordinance was “void for vagueness” or that it is

enforced arbitrarily and discriminatorily so as to violate the Due Process Clause of the

United States Constitution. Additionally, Anne abandoned her procedural due process

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VI. Whether the Ordinance Violates Anne’s Due Process

Rights by Interfering with Her Fundamental Right to Parent.

The Federal Constitution precludes deprivations of “life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV, § 1.

Substantive due process “prevents the government from interfering with

‘rights implicit in the concept of ordered liberty.’ ” Hernandez-Lopez, 639

N.W.2d at 237 (quoting United States v. Salerno, 481 U.S. 739, 746, 107

S. Ct. 2095, 2101, 95 L. Ed. 2d 697, 708 (1987)). There are two stages to

a substantive due process analysis. State v. Groves, 742 N.W.2d 90, 92

(Iowa 2007). The first stage requires us to determine the nature of the

individual right involved. Id.; accord Reno v. Flores, 507 U.S. 292, 302,

113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1, 16 (1993). The second stage

involves the appropriate level of scrutiny to apply. Groves, 742 N.W.2d at

93.

If government action implicates a fundamental right, we apply a

strict scrutiny analysis in which we determine if the government action

infringing the fundamental right is narrowly tailored to serve a

compelling government interest. Seering, 701 N.W.2d at 662.

Alternatively, if a fundamental right is not implicated, the statute need

only survive the rational-basis test, which requires us to consider

“whether there is ‘a reasonable fit between the government interest and

the means utilized to advance that interest.’ ” Id. (quoting Hernandez-

Lopez, 639 N.W.2d at 238); accord Flores, 507 U.S. at 305, 113 S. Ct. at

1448–49, 123 L. Ed. 2d at 18.

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argument in this appeal. Finally, she did not argue any due process claim under the

Iowa Constitution. Accordingly, we decline to address these issues. See Baker v. City of

Iowa City, 750 N.W.2d 93, 102–03 (Iowa 2008) (holding a party fails to preserve error

when that party fails to advance any argument or cite any authority in his or her brief

to support a claim).

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Anne claims the ordinance infringes on her fundamental right to

make her own parenting decisions without undue coercion or

interference from the state. The city claims the ordinance does not

infringe upon the parent-child relationship but instead simply informs

the parent that warning signs exist and the parent should seek some

advice or help.

When an alleged right is not specifically and constitutionally

enumerated as fundamental, neither this court nor the Supreme Court

has created a clear test for determining whether the claimed right is a

fundamental right. In re Det. of Cubbage, 671 N.W.2d 442, 447 (Iowa

2003). Nevertheless, only rights and liberties that are objectively

“ ‘deeply rooted in this Nation’s history and tradition’ ” and “ ‘implicit in

the concept of ordered liberty’ ” qualify as fundamental. Chavez v.

Martinez, 538 U.S. 760, 775, 123 S. Ct. 1994, 2005, 155 L. Ed. 2d 984,

999 (2003) (plurality opinion) (quoting Washington v. Glucksberg, 521

U.S. 702, 720–21, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772, 787–88

(1997)). Moreover, any asserted fundamental liberty interest must be

carefully described so that we can proceed with the correct analysis.

Glucksberg, 521 U.S. at 721, 117 S. Ct. at 2268, 138 L. Ed. 2d at 788;

accord Seering, 701 N.W.2d at 663.

One of the oldest fundamental liberty interests consistently

recognized by the Supreme Court is the interest of parents in the care,

custody, and control of their children. Troxel v. Granville, 530 U.S. 57,

65–66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56 (2000); accord

Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71

L. Ed. 2d 599, 606 (1982) (recognizing that personal choice in matters of

family life is a fundamental liberty interest); Lassiter v. Dep’t of Soc.

Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2159–60, 68 L. Ed. 2d 640,

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649–50 (1981) (finding a parent’s right to the companionship, care,

custody, and management of his or her children is an important

interest); Parham v. J.R., 442 U.S. 584, 602–04, 99 S. Ct. 2493, 2504–05,

61 L. Ed. 2d 101, 118–19 (1979) (recognizing the concept of family as a

unit with broad parental authority over minor children); Quilloin v.

Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554–55, 54 L. Ed. 2d 511, 519

(1978) (recognizing that the relationship between parent and child is

constitutionally protected); Moore v. City of East Cleveland, 431 U.S. 494,

499, 97 S. Ct. 1932, 1935–36, 52 L. Ed. 2d 531, 537 (1977) (citing a host

of Supreme Court cases that have consistently acknowledged the state

cannot enter the private realm of family life); Wisconsin v. Yoder, 406

U.S. 205, 232–34, 92 S. Ct. 1526, 1541–42, 32 L. Ed. 2d 15, 35 (1972)

(“The history and culture of Western civilization reflect a strong tradition

of parental concern for the nurture and upbringing of their children.”);

Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212–13, 31

L. Ed. 2d 551, 558–59 (1972) (finding the right to raise one’s children as

“essential”); Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274,

1280, 20 L. Ed. 2d 195, 203–04 (1968) (stating “constitutional

interpretation has consistently recognized that the parents’ claim to

authority in their own household to direct the rearing of their children is

basic in the structure of our society”); Prince v. Massachusetts, 321 U.S.

158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944) (“It is cardinal

with us that the custody, care and nurture of the child reside first in the

parents, whose primary function and freedom include preparation for

obligations the state can neither supply nor hinder.”); Pierce v. Soc’y of

Sisters, 268 U.S. 510, 534–35, 45 S. Ct. 571, 573, 69 L. Ed. 1070, 1078

(1925) (recognizing parents have a liberty interest in directing the

upbringing and education of their children); Meyer v. Nebraska, 262 U.S.

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390, 399–400, 43 S. Ct. 625, 626–27, 67 L. Ed. 1042, 1045 (1923)

(finding the liberty protected by the Due Process Clause includes the

right of the individual to establish a home and bring up children).

Therefore, if the ordinance infringes on Anne’s fundamental right to

exercise care, custody, and control over her son, we must apply strict

scrutiny. Hernandez-Lopez, 639 N.W.2d at 238. Accordingly, we must

examine the contours of this fundamental right in order to determine

whether the ordinance infringes upon it.

The determination of whether the fundamental parental right to

exercise care, custody, and control over children has been infringed must

be determined on a case-by-case basis. Troxel, 530 U.S. at 95–96, 120

S. Ct. at 2076, 147 L. Ed. 2d at 75 (Kennedy, J., dissenting). Moreover,

while this fundamental right has been broadly stated, “the contours of

the right are not completely amorphous.” See, e.g., Dutkiewicz v.

Dutkiewicz, 957 A.2d 821, 832–33 (Conn. 2008) (analyzing the contours

of the fundamental parental right to exercise care, custody, and control

over a child). Every case that has implicated this fundamental right has

a commonality:

All of the cases in which the United States Supreme

Court . . . [has] concluded that the parental right to exercise

care, custody and control over children was implicated,

involved situations in which the state intervened and

substituted its decision making for that of the parents. The

result is that a parent’s decision with respect to the care,

custody and control of his or her child cannot be overridden

by the state in the absence of a showing that the parent is

unfit or that the parent’s decision will jeopardize the health

or safety of the child, or will have a potential to impose

significant social burdens.

Id. at 833 (emphasis removed). Thus, for a statute or ordinance to

infringe on this fundamental parental right, “the state must in some way

attempt to override or at least limit the decision of a parent with respect

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to the care, custody and control over his or her child.” Id. (emphasis

removed); see also S. Randall Humm, Criminalizing Poor Parenting Skills

as a Means to Contain Violence by and Against Children, 139 U. Pa. L.

Rev. 1123, 1143 (1991) (“A law that allows the state to review virtually

every aspect of the parent’s supervision over the child is inconsistent

with the . . . deference [that the Supreme Court has assigned to] parents

in matters involving child rearing.”).

In other words, the power of the state must improperly intrude into

the parent’s decision-making authority over his or her child for there to

be an infringement of this fundamental parental right, triggering strict

scrutiny. Dutkiewicz, 957 A.2d at 833; see, e.g., Troxel, 530 U.S. at 67,

120 S. Ct. at 2060–61, 147 L. Ed. 2d at 57–58 (noting the parent wanted

to limit third-party visitation, the state did not); Moore, 431 U.S. at 496–

97, 97 S. Ct. at 1934, 52 L. Ed. 2d at 535–36 (noting the parent wanted

to live with son and two grandsons in violation of housing ordinance);

Yoder, 406 U.S. at 207–08, 92 S. Ct. at 1529–30, 32 L. Ed. 2d at 20–21

(noting the parent wanted to give children an Amish education, and the

state wanted them to attend public school); Pierce, 268 U.S. at 530–31,

45 S. Ct. at 572, 69 L. Ed. at 1076 (noting the state wanted children to

attend public school); Meyer, 262 U.S. at 396–97, 430 S. Ct. at 626, 67

L. Ed. at 1044 (noting the state sought to prohibit parents from allowing

their children to learn a foreign language before the eighth grade); accord

Santi v. Santi, 633 N.W.2d 312, 318 (Iowa 2001) (noting the parent

wanted to limit third-party visitation, the state did not); Olds v. Olds, 356

N.W.2d 571, 574 (Iowa 1984) (same).

Furthermore, we have stated, “[b]oth [this court’s] precedents and

those of the Supreme Court indicate that an alleged infringement on a

familial right is unconstitutional only when an infringement has a direct

17

and substantial impact on the familial relationship.” Seering, 701

N.W.2d at 663 (emphasis added). Thus, for the ordinance to infringe

upon Anne’s fundamental parental right, it must directly and

substantially intrude into her parental decision-making authority over

her child.

However, it is important to note the fundamental parental right to

exercise care, custody, and control over children is not absolute. The

state has a legitimate interest to promote the public welfare or the well-

being of the child. City of Panora v. Simmons, 445 N.W.2d 363, 369–70

(Iowa 1989). Under the doctrine of parens patriae, the state may restrict

the parent’s control by requiring school attendance, regulating or

prohibiting the child’s labor, and in many other ways. Prince, 321 U.S. at

166, 64 S. Ct. at 442, 88 L. Ed. at 652. Consequently, when the child’s

welfare is threatened, the state can use a wide range of powers to limit

parental freedom and authority. Id. at 167, 64 S. Ct. at 442, 88 L. Ed. at

653. Therefore,

“[i]n cases in which harm to the physical or mental health of

the child or to the public safety, peace, order, or welfare is

demonstrated, these legitimate state interests may override

the parents’ qualified right to control the upbringing of their

children.”

Simmons, 445 N.W.2d at 369–70 (quoting Bykofsky v. Borough of

Middletown, 401 F. Supp. 1242, 1264 (M.D. Pa. 1975)).

Here, the city claims its interest advanced by the ordinance is to

“preserve the peace, safety, health and welfare of the citizens of

Davenport, Iowa, and the city’s visitors and guests.” Davenport Mun.

Code § 9.56.010. Clearly, the city has a strong interest in protecting the

public from juvenile delinquency. The ordinance does not dictate to

parents an overall plan for the discipline, control, or supervision of

18

minors. Simmons, 445 N.W.2d at 370. Instead, upon a first

“occurrence” it gives the parent notice of their child’s alleged

delinquency, upon a second “occurrence” it requires the parent to

successfully complete a parenting class to learn skills the parent may or

may not voluntarily implement to combat their child’s delinquency, and

finally upon a third “occurrence” the ordinance imposes sanctions on the

parent. Davenport Mun. Code § 9.56.050. While the ordinance does

attempt to inform parents about their child’s delinquency, provide skills

for combating delinquency, and ultimately imposes sanctions on parents

for their child’s continued delinquency, we cannot say the city has

improperly intervened and substituted its decision making for that of the

parent. Therefore, the ordinance does not intrude directly and

substantially into a parent’s parental decision-making authority, but

instead only minimally impinges on a parent’s fundamental right to

direct the upbringing of his or her child. Consequently, the ordinance

does not trigger strict scrutiny by infringing upon Anne’s fundamental

right to exercise care, custody, and control over her child. Accordingly,

the district court correctly determined the proper level of scrutiny to

apply in this case is the rational-basis test.

When a fundamental right is not implicated, the ordinance need

only survive the rational-basis test. Seering, 701 N.W.2d at 662. The

rational-basis test requires us to consider “whether there is ‘a reasonable

fit between the government interest and the means utilized to advance

that interest.’ ” Id. (quoting Hernandez-Lopez, 639 N.W.2d at 238);

accord Flores, 507 U.S. at 303, 305, 113 S. Ct. at 1448–49, 123 L. Ed. 2d

at 18. Under this level of scrutiny, the legislature need not employ the

best means of achieving a legitimate state interest. Sanchez v. State, 692

N.W.2d 812, 818 (Iowa 2005). As long as the means “ ‘rationally

19

advances a reasonable and identifiable governmental objective, we must

disregard the existence of other methods . . . that we, as individuals,

perhaps would have preferred.’ ” Id. (quoting Schweiker v. Wilson, 450

U.S. 221, 235, 101 S. Ct. 1074, 1083, 67 L. Ed. 2d 186, 198 (1981)).

Moreover, while the rational-basis level of scrutiny is deferential to

legislative judgment, it is not a toothless standard of review. Racing

Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 9 (Iowa 2004); accord

Mathews v. de Castro, 429 U.S. 181, 185, 97 S. Ct. 431, 434, 50

L. Ed. 2d 389, 394 (1976).

Under the rational-basis test, we first must determine whether the

ordinance serves a legitimate governmental interest. Racing Ass’n of

Cent. Iowa, 675 N.W.2d at 7. Moreover, “the claimed state interest must

be ‘realistically conceivable.’ ” Id. (emphasis in original) (quoting Miller v.

Boone County Hosp., 394 N.W.2d 776, 779 (Iowa 1986)). In this case,

there is no doubt the city’s interest in protecting the community from the

threat of juvenile delinquency is legitimate. Thus, the only remaining

issue is whether the ordinance is rationally related to this legitimate

governmental interest. Parental responsibility laws, such as the

ordinance in this case, are based on the fairly simple rationale that, if the

state imposes sanctions or threatens to impose sanctions on the parent

for the delinquent acts of his or her child, the parent will exercise better

control and supervision over the child, thereby reducing or eliminating

future acts of juvenile delinquency by that child.

When a child resides with his or her parent, the parent is probably

in the best position to control the child’s behavior. Thus, there is a

reasonable fit between the government’s interest to curb delinquent acts

of a child and the requirement that a parent should exercise reasonable

control over his or her child. For this reason, the ordinance does not

20

violate Anne’s due process rights by interfering with her fundamental

right to parent.

VII. Whether the Juvenile Laws Contained in Iowa Code

Chapter 232 Preempt the Ordinance.

In 1968, the Iowa Constitution was amended to provide municipal

governments the limited power of legislative home rule. Iowa Const. art.

III, § 38A. Our home rule amendment allows the legislature to retain the

unfettered power to forbid a municipality from exercising police powers,

even over those matters traditionally thought to involve local matters.

Seymour, 755 N.W.2d at 538. However, “as long as an exercise of police

power over local affairs is not ‘inconsistent with the laws of the general

assembly,’ municipalities may act without express legislative approval or

authorization.” Id. (quoting Iowa Const. art. III, § 38A). The purpose of

the home rule amendment was to give local government the power to

pass legislation over its local affairs subject to the superior authority of

the legislature. Goodell v. Humboldt County, 575 N.W.2d 486, 492 (Iowa

1998). To determine whether municipal action is permitted or prohibited

by the legislature, courts have developed the doctrine of preemption.

Seymour, 755 N.W.2d at 538. The preemption doctrine dictates that

municipalities cannot act if the legislature has directed otherwise. Id.

When the legislature exercises its authority in an area, legislative power

trumps the authority of local government to do the same. Id. We have

recognized three types of preemption—express preemption, implied-

conflict preemption, and implied-field preemption. Id. at 538–39;

Goodell, 575 N.W.2d at 492–93. We will examine each in turn.

A. Express Preemption. Express preemption applies when the

legislature has explicitly prohibited local action in a given area.

Seymour, 755 N.W.2d at 538; Goodell, 575 N.W.2d at 492. Anne argues

21

the language contained in Iowa Code section 232.8, that the Iowa

juvenile court has “exclusive original jurisdiction in proceedings

concerning a child who is alleged to have committed a delinquent act,”

expressly preempts the ordinance. Iowa Code § 232.8(1)(a). The city

claims there is no provision in the Iowa Code that expressly preempts the

ordinance. By its terms, the jurisdictional section cited by Anne does not

explicitly prohibit the imposition of sanctions by a city on a parent based

on a child’s alleged delinquency. Therefore, the language contained in

Iowa Code section 232.8 does not expressly preempt the ordinance.

B. Implied-Conflict Preemption. Implied-conflict preemption

occurs when a local ordinance prohibits an act permitted by a statute or

permits an act prohibited by a statute. Seymour, 755 N.W.2d at 538;

Goodell, 575 N.W.2d at 493.

The theory of this branch of implied preemption is that even

though an ordinance may not be expressly preempted by the

legislature, the ordinance cannot exist harmoniously with a

state statute because the ordinance is diametrically in

opposition to it.

Seymour, 755 N.W.2d at 538. For conflict preemption to apply, the local

ordinance must be “irreconcilable” with state law, meaning the conflict

must be “obvious, unavoidable, and not a matter of reasonable debate.”

Id. at 539.

In this case, Anne argues the ordinance is inconsistent with the

Iowa juvenile justice code because it sets up a local court proceeding that

is less protective and less responsive to due process and the needs of

families, which shadows the juvenile court system. Moreover, Anne

argues the ordinance may cause the juvenile and local courts to require

the parent to engage simultaneously in conflicting or competing

interests. We disagree.

22

The ordinance in question no more conflicts with the juvenile

justice court system than does Iowa Code section 613.16, which imposes

vicarious liability upon parents for the tortious damages to persons or

property caused by their children. See Iowa Code § 613.16. The

ordinance does not attempt to lower the due process standards of the

juvenile court, but instead holds parents liable for the delinquency of

their children. While the juvenile justice system focuses on the child, the

ordinance focuses on the parental control exercised by the parent over

the child. Thus, the ordinance and the juvenile justice system serve two

different purposes, which do not obviously and unavoidably conflict.

C. Implied-Field Preemption. Implied-field preemption occurs

when the legislature has “so covered a subject by statute as to

demonstrate a legislative intent that regulation in the field is preempted

by state law.” Seymour, 755 N.W.2d at 539; see also Goodell, 575

N.W.2d at 493. However, extensive regulation in a certain field is not

enough. Seymour, 755 N.W.2d at 539. Instead, “[i]n order to invoke the

doctrine of field preemption, there must be some clear expression of

legislative intent to preempt a field from regulation by local authorities,

or a statement of the legislature’s desire to have uniform regulations

statewide.” Id.; see also Goodell, 575 N.W.2d at 493, 499–500

(recognizing the need for a high degree of legislative expression before

this court will find subject-wide preemption). Therefore, “[t]here must be

persuasive concrete evidence of an intent to preempt the field in the

language that the legislature actually chose to employ.” Seymour, 755

N.W.2d at 539.

Anne argues the legislative pronouncement that the Iowa juvenile

court has “exclusive original jurisdiction in proceedings concerning a

child who is alleged to have committed a delinquent act” also evidences

23

the legislature’s intent to preempt this field and provide uniform

regulation. Iowa Code § 232.8(1)(a). Thus, Anne claims Iowa’s juvenile

justice code provides a comprehensive scheme for dealing with allegedly

delinquent children and their families and preempts this field from local

regulation. Again, we disagree.

The ordinance does not attempt to exercise jurisdiction over the

child, but instead merely imposes sanctions upon a parent whose child

has allegedly committed a delinquent act. Nowhere in Iowa’s

comprehensive juvenile justice code does the legislature clearly indicate a

legislative intent to preempt this field or a desire to provide uniform

regulations for imposing sanctions on parents for their children’s

delinquency. See Iowa Code §§ 232.1–.196. Consequently, Anne has

failed to produce “persuasive concrete evidence of an intent to preempt

the field in the language that the legislature actually chose to employ.”

Seymour, 755 N.W.2d at 539.

Therefore, we find Anne has failed to establish the ordinance has

been expressly or impliedly preempted by Iowa’s juvenile justice code.

VIII. Whether the Ordinance Contains an Irrational and Unfair

Presumption.

Anne claims we can uphold the district court decision by finding

the ordinance contains an irrational and unfair presumption that, if a

minor violates the law, the court can assume the violation was a result of

the parent’s failure to exercise reasonable parental control of the minor.

In analyzing this claim, we start with the principle that a person who

violates the ordinance commits a municipal infraction. Davenport Mun.

Code § 9.56.050. A municipal infraction is a civil offense. Iowa Code

§ 364.22(1). Thus, our analysis requires us to review the appropriate

civil law precedents to determine if we can uphold the district court

24

decision by finding the ordinance contains an irrational and unfair

presumption.

A presumption in a civil case violates the Due Process Clause of

the United States Constitution if it is arbitrary or operates to deny a fair

opportunity to rebut it. W. & A.R.R. v. Henderson, 279 U.S. 639, 642, 49

S. Ct. 445, 447, 73 L. Ed. 884, 888 (1929); Calkins v. Adams County

Coop. Elec. Co., 259 Iowa 245, 253, 144 N.W.2d 124, 128–29 (1966). 3

The reason for this rule is simple—“[l]egislative fiat may not take the

place of fact in the judicial determination of issues involving life, liberty,

or property.” W. & A.R.R., 279 U.S. at 642, 49 S. Ct. at 447, 73 L. Ed. at

888.

In order for a person to violate the ordinance, he or she must fail to

“exercise sufficient control over a said minor(s) to prevent the minor(s)

from committing any unlawful act in violation of federal law, state law or

city ordinance.” Davenport Mun. Code § 9.56.040(A). The standard for

finding that a parent violated the ordinance is negligence. Id. The

ordinance creates a rebuttable presumption “that the parent failed to

exercise reasonable parental control of said parent’s minor(s)” after

A second occurrence or an adjudication or the entry of

an informal adjustment agreement involving a minor related

to any unlawful act, and prior notification to the parent of

the parental responsibility ordinance including notice of

possible fines or penalties . . . .

Id. The ordinance defines an “occurrence” to mean “a law enforcement

agency has probable cause to believe a particular child engaged in a

delinquent act and has filed a delinquency complaint with the court

3Anne does not claim or make an argument under the Iowa Constitution in her

brief when she claims the ordinance contains an irrational and unfair presumption that

if a minor violates the law, the court can assume the violation was a result of the

parent’s failure to exercise reasonable parental control of the minor. Therefore, we will

only analyze this issue under the Federal Constitution.

25

based upon such probable cause or has otherwise taken said child into

custody.” Id. § 9.56.020(E). The ordinance allows the parent to rebut

the presumption created by the ordinance. Id. § 9.56.040(B). Without

this presumption, the city has the burden to prove by clear, satisfactory,

and convincing evidence that the parent failed to exercise reasonable

parental control of his or her minor, and the second “occurrence” was

caused by the parent’s failure to exercise reasonable parental control.

Iowa Code § 364.22(5)(b). In other words, upon a second “occurrence,” a

parent is presumed negligent. Because the second “occurrence” is the

fact used to presume negligence, the ordinance’s presumption also

presumes causation—that a parent’s negligence in controlling his or her

child is the cause of the child’s delinquency.

In Calkins, we were confronted with an analogous presumption.

259 Iowa at 248, 144 N.W.2d at 125. There, the plaintiff was injured

when his horse came in contact with a guy wire, and he was thrown from

his horse. Id. at 251, 144 N.W.2d at 127. At the time of the injury, the

applicable statute provided:

“In case of injury to any person or property by any such

transmission line, negligence will be presumed on the part of

the person or corporation operating said line in causing said

injury, but this presumption may be rebutted by proof.”

Id. at 248, 144 N.W.2d at 125 (quoting Iowa Code § 489.15 (1962)). In

construing the presumption, the court noted by inferring negligence from

the injury, the presumption not only presumed negligence but also

presumed causation. Id. at 252, 144 N.W.2d at 128. Although the

presumption of negligence was rebuttable, we held the presumption

violated the defendant’s due process rights because the presumption was

arbitrary and had no reasonable relationship to the facts of the case. Id.

at 253, 144 N.W.2d at 129.

26

Our holding in Calkins is consistent with the well-settled law that

in an ordinary negligence action the mere fact an incident occurred does

not mean a party is negligent. Armbruster v. Gray, 225 Iowa 1226, 1230,

282 N.W. 342, 344 (1938). Generally, we do not allow a fact finder to

infer negligence from an injury because injuries can happen without any

negligence. Harvey v. Borg, 218 Iowa 1228, 1232, 257 N.W. 190, 193

(1934). Thus, it is irrational to allow a fact finder to use the mere

occurrence of an incident to presume a person was negligent and the

cause of the incident. Id. (“It is universally agreed that no inference of

negligence arises from the mere fact that a collision occurred.”).

We believe the presumption contained in Davenport’s ordinance is

just as arbitrary and irrational as the presumption in an ordinary

negligence case. There can be many causes for a child to commit an

“occurrence” under the ordinance. As one authority notes:

Experts fail to agree on the causes of delinquency. Its

cause is as complex as poverty, drug abuse, or any other

social problem. . . . Even when several experts do agree on

causation, they disagree about solutions or prevention

methods.

Experts who identify a dysfunctional family as a

primary reason for delinquent behavior often cite factors

other than lack of discipline as a cause. For example,

poverty and family disruption (divorce, death in the family

etc.), both outside the reach of parenting classes, may

contribute to delinquent behavior. Though most laws

presume parents of delinquents are not “heavy handed”

enough, several studies indicate that strict discipline

increases delinquent behavior.

Michelle L. Casgrain, Parental Responsibility Laws: Cure for Crime or

Exercise in Futility?, 37 Wayne L. Rev. 161, 173–74 (1990); accord James

Herbie DiFonzo, Parental Responsibility for Juvenile Crime, 80 Or. L. Rev.

1, 45 (2001) (finding the biological and social factors that may lead a

child to commit delinquent acts are profoundly intertwined). Other

27

authorities agree that family coupled with the interrelated forces of

school, housing, recreation, community life, employment, and the

juvenile justice system itself influence a juvenile toward or away from

delinquency. Penelope D. Clute, “Parental Responsibility” Ordinances—Is

Criminalizing Parents When Children Commit Unlawful Acts a Solution to

Juvenile Delinquency?, 19 Wayne L. Rev. 1551, 1576–77 (1973); accord

Linda A. Chapin, Out of Control? The Uses and Abuses of Parental

Liability Laws to Control Juvenile Delinquency in the United States, 37

Santa Clara L. Rev. 621, 670–71 (1997) (“Most current researchers

concede that the relationship between the family and juvenile

delinquency is complex, and that a ‘bad’ parent is not the sole cause of a

‘bad’ child.”); Christine T. Greenwood, Holding Parents Criminally

Responsible for the Delinquent Acts of Their Children: Reasoned Response

or “Knee-Jerk Reaction”?, 23 J. Contemp. L. 401, 411 (1997) (stating,

although there is a dispute over the exact degree, most researchers agree

that certain functions and characteristics of the family are one of the

factors that cause juvenile delinquency); Kathryn J. Parsley,

Constitutional Limitations on State Power to Hold Parents Criminally Liable

for the Delinquent Acts of Their Children, 44 Vand. L. Rev. 441, 468 (1991)

(noting other factors contributing to juvenile delinquency include social

class, educational level, urbanization, living conditions, social instability,

drug abuse, school failure, inadequate family relationships, antisocial

values, child abuse, and association with delinquent peers).

Consequently, while the family might have an effect on juvenile

delinquency, it may not be a factor contributing to juvenile delinquency

in a specific case.

Therefore, allowing a fact finder to presume negligence and

causation based on the happening of an “occurrence,” rather than

28

finding negligence and causation based on the facts, is arbitrary and

irrational in light of the multiple factors that can cause the “occurrence,”

as defined by the statute. Long ago, we realized that things happen

absent a person’s negligence. For this reason, we do not permit a fact

finder to presume a person’s negligence merely because some incident

occurred. Accordingly, we hold the provisions of the ordinance creating

the presumption are arbitrary and irrational and violate the Due Process

Clause of the Fourteenth Amendment to the United States Constitution.

Our holding does not mean the entire ordinance is void. Our

constitutional duty requires us to preserve as much of the ordinance as

possible within constitutional restraints. Fed. Land Bank of Omaha v.

Arnold, 426 N.W.2d 153, 157–58 (Iowa 1988). When possible, our duty

requires us to declare unconstitutional only that portion of the statute

that is found to violate the Constitution. Id. It is appropriate for us to

sever unconstitutional provisions from constitutional portions of a

statute if the severance does not substantially impair the enactment’s

legislative purpose, the enactment remains capable of fulfilling the

apparent legislative intent, and the remaining portion of the enactment

can be given effect without the invalid provision. Am. Dog Owners Ass’n,

Inc. v. City of Des Moines, 469 N.W.2d 416, 418 (Iowa 1991). The

Davenport Municipal Code also recognizes this concept of severance by

providing:

If any section, subsection, sentence, clause or phrase

of this code is for any reason held to be invalid or

unconstitutional, such decision shall not affect the validity of

the remaining portions of this code. The council hereby

declares that it would have passed this code, and each

section, subsection, sentence, clause and phrase thereof,

irrespective of the fact that any one or more sections,

subsections, sentences, clauses or phrases had been

declared invalid or unconstitutional, then the original

ordinance or ordinances shall be in full force and effect.

29

Davenport Mun. Code § 1.01.100. Thus, we cannot presume the city

council intended its ordinances to be treated as a whole. Clark v. Miller,

503 N.W.2d 422, 425 (Iowa 1993).

We find the provisions of section 9.56.040 of Davenport’s parental

responsibility ordinance dealing with the presumption that a parent

failed to exercise reasonable parental control of his or her child upon a

second “occurrence” can be severed from the rest of the ordinance and

strike those provisions from the ordinance. The Iowa Code requires a

city to prove a violation of a municipal infraction by clear, satisfactory,

and convincing evidence. Iowa Code § 364.22(5)(b). Accordingly, for the

city to prove a first, second, or subsequent violation of the ordinance, it

must prove by clear, satisfactory, and convincing evidence that a parent

failed to exercise reasonable parental control of his or her minor, and the

“occurrence” was caused by the parent’s failure to exercise reasonable

parental control.

IX. Attorney Fee Award.

The district court awarded attorney fees based on its finding that

the entire ordinance was unconstitutional. On appeal, we found the

presumption of failure to exercise reasonable parental control under

section 9.56.040 of the ordinance to be unconstitutional and severed the

unconstitutional portion of the ordinance from the remainder of the

ordinance. The court, in its discretion, may award reasonable attorney

fees to a prevailing party in a civil rights action. 42 U.S.C. § 1988(b).

One of the factors to be considered when awarding attorney fees under

42 U.S.C. § 1988 is the level of the prevailing party’s success in the

litigation. Hensley v. Eckerhart, 461 U.S. 424, 430, 103 S. Ct. 1933,

1938, 76 L. Ed. 2d 40, 48 (1983). Therefore, we must vacate the award

of attorney fees and remand the case to the district court to determine

30

the proper award of attorney fees, if any, considering the level of the

prevailing party’s success in this litigation.

X. Disposition.

We hold the presumption of failure to exercise reasonable parental

control under section 9.56.040 of the Davenport Parental Responsibility

Ordinance is unconstitutional and sever the unconstitutional portion of

the ordinance from the remainder of the ordinance. Therefore, we must

affirm in part and reverse in part the judgment of the district court. We

also vacate the attorney fee award and remand the case to the district

court to reconsider its award of attorney fees, taking into consideration

the prevailing party’s level of success in the litigation as one of the

factors in making its award. Accordingly, we remand the case to the

district court to enter judgment consistent with this opinion.

APPEAL AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED; CROSS-APPEAL REVERSED AND REMANDED.