CHRISTOPHER J. GODFREY, Appellant,
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.
from the Iowa District Court for Polk County, Brad McCall,
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.
R. Ostergren, Muscatine, for amicus curiae Iowa County
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
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.
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
Factual and Procedural Background.
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).
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
issue in this interlocutory appeal are four counts alleging
violation of due process and equal protection provisions of
the Iowa Constitution. 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 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.
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).
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,
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.
Standard of Review.
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).
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, 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).
Claims for Monetary Damages Under Article I, Section 6 and
Article I, Section 9 of the Iowa Constitution.
Positions of the Parties.
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.
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.
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 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.
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.
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.
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 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.
(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.
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).
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.
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. 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.
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.
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.
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 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
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.
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.
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
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.
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 bringing 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.
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).
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.
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).
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).
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.
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
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 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
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.
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."
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.
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
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 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.
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
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 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.
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.
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)).
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
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.
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
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
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).
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.
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.
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 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.
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 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
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
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 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.
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
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 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.
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
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 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).
State Court Cases Considering Whether State Constitutional
Provisions Are Self-Executing for Purposes of Actions for
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 or whether to
decline to recognize such actions.
Overview of state supreme court cases holding state
constitutional provisions self-executing for purposes of
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).
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).
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.
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; 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- specifically a trespass action for violation of
right to be free of unreasonable search and seizure
guaranteed by the Magna Carta).
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
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.
the Brown court held that the plaintiffs had an
implied right of damages under the search and seizures and
equal protection clauses 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).
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).
Corum court emphasized the primacy of the
Declaration of Rights in article I of the North Carolina
Constitution. 413 S.E.2d at 290. 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
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.
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 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.
Overview of state supreme court cases rejecting view that
state constitutional provisions are self-executing.
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
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.
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.
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
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).
Iowa Caselaw on Self-Executing Constitutional
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
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.
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).
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');">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
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.
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 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.
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
Id. at 32, 294 N.W. at 245 (quoting McKeown v.
Brown, 167 Iowa 489, 498, 149 N.W. 593, 596 (1914)).
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. 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 ...