# Kersten Co., Inc. v. Department of Social Services

> Supreme Court of Iowa · April 25, 1973 · 207 N.W.2d 117

URL: https://www.frixlaw.com/law-library/cases/9844987

## Case

- **Full name:** KERSTEN COMPANY, INC., a Corporation, Appellee, v. DEPARTMENT OF SOCIAL SERVICES of the State of Iowa, and State of Iowa, Appellants
- **Court:** Supreme Court of Iowa
- **Decided:** April 25, 1973
- **Citations:** 207 N.W.2d 117; 1973 Iowa Sup. LEXIS 1000
- **Precedential status:** Published
- **Opinion:** Dissent by Uhlenhopp
- **Judges:** Legrand, Moore, Mason, Rees, Harris, Rawlings, Uhlenhopp, Reynoldson, McCormick
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9844987

## How later opinions describe it (automated extraction)

- explaining it is generally the role of the supreme court to decide if case precedent should no longer be followed

## Opinion text

UHLENHOPP, Justice
(dissenting).
I would prefer to concur in the more equitable result reached by the court, but am constrained to join in Judge Rawlings’ dissenting opinion insofar as he bases his conclusion on rule 9 of the Rules of Civil Procedure. I believe that the court has boxed itself in by that rule.
I. Sovereign immunity is a creature of judicial decision and should be abrogated by judicial decision where possible. But in 1943 the court proposed rule 9 to the General Assembly (50 G.A. ch. 278 at p. 288):
The state may sue in the same way as an individual. No security shall be required of it. It may be sited as provided by any statutes in force at the time. (Italics added.)
The General Assembly did not disapprove the proposed rule and it became law with the force of a statute. Kutrules v. Suchomel, 258 Iowa 1206 , 141 N.W.2d 593 .
Now we are dissatisfied with the italicized portion of rule 9 and want the state to be suable in contract the same as an individual. It seems to me that we must respect the rule the same as a statute and that we cannot simply turn our backs on it. Instead, if the legislature itself does not act we should reformulate rule 9 and submit the reformulation to the legislature in the regular way under § 684.19 of the Code.
II. I am unable to say rule 9 deals only with the manner in which the state can be sued, rather than with its suability. That is not the view of the rule held by the principal framer of the rules. 1 Cook, Iowa Rules of Civil Procedure (Rev.Ed.) Rule 9, Author’s Comment (“This rule is new, but merely re-states the prior law. The state can be sued only with its consent.”). The plain meaning of rule 9 appears to be that the state may be sued as provided by statute. Here, unfortunately, we have no statute.
The judgment should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9844987. Public record. Not legal advice.