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Godfrey v. State

Supreme Court of Iowa

June 30, 2017

CHRISTOPHER J. GODFREY, Appellant,
v.
STATE OF IOWA; TERRY BRANSTAD, Governor of the State of Iowa, Individually and in his Official Capacity; KIMBERLY REYNOLDS, Lieutenant Governor of the State of Iowa, Individually and in her Official Capacity; JEFFREY BOEYINK, Chief of Staff to the Governor of the State of Iowa, Individually and in his Official Capacity; BRENNA FINDLEY, Legal Counsel to the Governor of the State of Iowa, Individually and in her Official Capacity; TIMOTHY ALBRECHT, Communications Director to the Governor of the State of Iowa, Individually and in his Official Capacity; and TERESA WAHLERT, Director, Iowa Workforce Development, Individually and in her Official Capacity, Appellees.

          Appeal from the Iowa District Court for Polk County, Brad McCall, Judge.

         Plaintiff 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.

          Alan R. Ostergren, Muscatine, for amicus curiae Iowa County Attorneys Association.

          Richard J. Sapp and Ryan G. Koopmans (until withdrawal) of Nyemaster Goode, P.C., Des Moines, for amici curiae Iowa League of Cities, Iowa State Association of Counties, Iowa Communities Assurance Pool and Iowa Association of School Boards.

          APPEL, Justice.

         In this case, we are called upon to determine whether the equal protection and due process provisions of the Iowa Constitution provide a direct action for damages in the context of an employment dispute between an Iowa Workers' Compensation Commissioner and various state officials, including the Governor, the Lieutenant Governor, the Governor's chief of staff, the Governor's legal counsel, the Governor's communication director, and the director of Iowa Workforce Development.

         The district court granted summary judgment in favor of the defendants on the plaintiff's claims. We granted interlocutory appeal. For the reasons expressed below, we reverse in part and affirm in part the judgment of the district court.

         I. Factual and Procedural Background.

         This case involves claims brought against various state officials for damages related to public employment. The petition as amended named the State of Iowa and individual defendants Terry Branstad, Kimberly Reynolds, Jeffrey Boeyink, Brenna Findley, Timothy Albrecht, and Teresa Wahlert. Christopher J. Godfrey stated in the petition that he was appointed Workers' Compensation Commissioner in 2006 for a partial term and then was subsequently appointed for a full term by Governor Chet Culver in 2009. Godfrey pled that the position of commissioner was statutorily defined as a six-year term, whereas the Iowa Constitution establishes a four-year term for the governorship. Since July of 2008 until the incidents complained of by Godfrey, Godfrey alleged that his salary was $112, 068.84 a year, near the maximum in the statutorily set salary range of $73, 250-$112, 070. See 2008 Iowa Acts ch. 1191, § 14(1), (5).

         Godfrey alleged in the petition that defendant Branstad, prior to taking office, demanded Godfrey's resignation by a letter dated December 3, 2010. Godfrey, however, asserted he refused to resign, claiming that his position was quasi-judicial, intended to be nonpartisan, and insulated from politics because of the two-year difference in terms between the commissioner (six years) and the Governor (four years). Godfrey's petition described several meetings with Branstad, Branstad's staff, and some of the other individual defendants in which Godfrey was pressured to resign. Godfrey alleges that as a result of his refusal to resign, he was punished by having his salary reduced to the statutory minimum of $73, 250. Godfrey claims he suffered other retaliation in the workplace at the hands of the defendants.

         At issue in this interlocutory appeal are four counts alleging violation of due process and equal protection provisions of the Iowa Constitution.[1] In Count VI, Godfrey alleges defendants deprived him of his constitutionally protected property interest in his salary without due process of law because of partisan politics and/or his sexual orientation in violation of article I, section 9 of the Iowa Constitution. In Count VII, Godfrey alleges the defendants damaged his protected liberty interest in his reputation without due process of law in violation of article I, section 9 by falsely claiming poor work performance. In Count VIII, Godfrey states the State of Iowa deprived Godfrey of equal protection of the laws in violation of article I, section 6 by discriminating against Godfrey because of his sexual orientation. Finally, in Count IX, Godfrey alleges the individual defendants deprived him of equal protection of the laws by treating homosexual appointed state officers or homosexual individuals differently than heterosexual appointed state officers or heterosexual individuals, also in violation of article I, section 6 of the Iowa Constitution. Under all these claims, Godfrey asks for actual damages, punitive damages, attorney's fees, court costs, and interest.

         The defendants moved for summary judgment. According to the defendants, they were entitled to summary judgment because there is no private cause of action for money damages for violation of article I, sections 6 and 9 of the Iowa Constitution. In the alternative, the defendants argued that Godfrey's claims were preempted by the Iowa Civil Rights Act, Iowa Code chapter 216 (2009).

         The district court granted summary judgment for the defendants on the Iowa constitutional claims. The district court explained that it considered the motion for summary judgment as a motion to dismiss because neither party asserted any particular facts upon which the district court should base its decision. The district court noted that federal precedent in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264 (1979), and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), appeared to support a cause of action for due process violations in a wrongful termination case. Further, the district court recognized that "[s]ignificant public policy arguments favor recognition of such claims." Nonetheless, the district court found that a recent unpublished court of appeals decision holding there are no private causes of action for violations of the Iowa Constitution was dispositive and dismissed Godfrey's constitutional claims. See Conklin v. State, No. 14-0764, 2015 WL 1332003, at *5 (Iowa Ct. App. Mar. 25, 2015).

         Godfrey applied for interlocutory review. We granted the application. For the reasons expressed below, a majority of the court concludes that Bivens claims are available under the Iowa Constitution and that the claims raised by plaintiff in Counts VI and VII were improperly dismissed. On the question of whether the Iowa Civil Rights Act provides an adequate remedy sufficient to stay any Bivens-type claim, a majority concludes that the remedy provided by chapter 216 is adequate under the facts and circumstances of this case, and that as a result, Counts VIII and IX of the plaintiff's complaint were properly dismissed.

         II. Standard of Review.

         A motion for summary judgment is appropriately granted when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R. Civ. P. 1.981(3). "We review the legal issues necessary for resolution of the constitutional claims presented within the context of the summary judgment proceeding de novo." Varnum v. Brien, 763 N.W.2d 862, 874 (Iowa 2009); accord Kistler v. City of Perry, 719 N.W.2d 804, 805 (Iowa 2006).

         Generally, our review on a motion to dismiss is for correction of errors at law. Hedlund v. State, 875 N.W.2d 720, 724 (Iowa 2016); Mueller v. Wellmark, Inc., 818 N.W.2d 244, 253 (Iowa 2012). To the extent that we review constitutional claims within a motion to dismiss, our review is de novo. McGill v. Fish, 790 N.W.2d 113, 116-17 (Iowa 2010); State v. Taeger, 781 N.W.2d 560, 564 (Iowa 2010). If the petitioner fails to state a claim upon which relief may be granted, we will affirm a grant of a motion to dismiss. Hedlund, 875 N.W.2d at 724; King v. State, 818 N.W.2d 1, 8 (Iowa 2012). In ruling on a motion to dismiss, we accept all well-pled facts in the petition as true. Shumate v. Drake Univ., 846 N.W.2d 503, 507 (Iowa 2014); Geisler v. City Council of Cedar Falls, 769 N.W.2d 162, 165 (Iowa 2009).

         III. Claims for Monetary Damages Under Article I, Section 6 and Article I, Section 9 of the Iowa Constitution.

         A. Positions of the Parties.

         1. Godfrey.

         Godfrey argues that article I, section 6 and article I, section 9 of the Iowa Constitution are self-executing. As a result, according to Godfrey, no implementing legislation is necessary for Godfrey to bring a claim against the defendants for monetary damages under the specific Iowa constitutional provisions involved in this case.

         Godfrey cites United States Supreme Court precedent as providing persuasive reasoning that some constitutional provisions are self-executing. The United States Supreme Court declared in Davis v. Burke that a constitutional provision may be said to be "self-executing" if it "supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced." 179 U.S. 399, 403, 21 S.Ct. 210, 212 (1900). According to Godfrey, the reasoning in Davis supports his position that the due process and equal protection provisions of article I, sections 6 and 9 of the Iowa Constitution fall within the self-executing category.

         Godfrey further argues that it would be illogical for the fundamental principles in these key Iowa constitutional provisions to depend upon legislative action for enforcement. In support of his argument, Godfrey cites passages in Varnum where we stated that the purpose of constitutional provisions such as the equal protection clause was to place certain subjects beyond the reach the elected branches and instead entrust their enforcement to the courts. 763 N.W.2d at 875-76 Godfrey further cites Marbury v. Madison, in which Justice Marshall wrote, "The very essence of civil liberty certainly consists of the right of every individual to claim the protection of the laws, whenever he receives an injury." 5 U.S. 137, 163 (1803). Thus, according to Godfrey, a requirement of legislation to enforce fundamental nonmajoritarian constitutional rights makes no sense.

         Godfrey recognizes that article XII, section 1 of the Iowa Constitution provides that the legislature "shall pass all laws necessary to carry [the] constitution into effect." Godfrey emphasizes the word "necessary" in article XII, section 1. Godfrey argues that no legislation is necessary to enforce the due process and equal protections clauses of the Iowa Constitution. He cites appellate state court cases that have held that Bivens-type remedies are available notwithstanding similar language in their state constitutions. See, e.g., Widgeon v. E. Shore Hosp. Ctr., 479 A.2d 921, 930 (Md. 1984); Peper v. Princeton Univ. Bd. of Trs., 389 A.2d 465, 476 (N.J. 1978).

         Turning to more modern federal cases, Godfrey draws support from Bivens, 403 U.S. 388, 91 S.Ct. 1999. In Bivens, the United States Supreme Court recognized a private cause of action for damages for violation of the search and seizure provisions of the Fourth Amendment. Id. at 397, 91 S.Ct. at 2005.

         In addition to federal cases, Godfrey looks for common law support of his claims. He argues that the Restatement (Second) of Torts and English common law principles are embraced in section 874A of the Restatement (Second) of Torts, which provides,

When a legislative provision [defined in comment a as including constitutional provisions] protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using suitable existing tort action or a new cause of action analogous to an existing tort action.

         Restatement (Second) of Torts § 874A & cmt. a, at 301 (Am. Law Inst. 1979) [hereinafter Restatement (Second)]. Godfrey notes many state courts that have found state constitutional provisions self-enforcing have relied upon this section of the Restatement (Second) as authoritative.

         Echoing Justice Harlan's concurrence in Bivens, Godfrey also contends that English common law long recognized a cause of action for damages for violation of rights secured by fundamental charters and constitutions. Justice Harlan also noted that if an explicit congressional authority were required to authorize a damage remedy under the Constitution, then an explicit authority should also be required for equitable relief. Bivens, 403 U.S. at 405, 91 S.Ct. at 2009 (Harlan, J., concurring).

         Additionally, Godfrey points to the law of remedies in support of his claims. Godfrey notes that we have repeatedly provided injunctive relief for constitutional violations without any enabling legislation. See, e.g., Hensler v. City of Davenport, 790 N.W.2d 569, 590 (Iowa 2010); State v. Dudley, 766 N.W.2d 606, 622 (Iowa 2009); Varnum, 763 N.W.2d at 906.

         Godfrey argues there is no ordinary common law tort or statutory action that will provide him with complete relief. With respect to common law torts, Godfrey cites Bivens, where "the Court acknowledged that the common law could not adequately regulate the government's unique power to inflict injury upon individuals." James J. Park, The Constitutional Tort Action as Individual Remedy, 38 Harv. C.R.-C.L. L. Rev. 393, 413 (2003); see Bivens, 403 U.S. at 394, 91 S.Ct. at 2003 (majority opinion). Godfrey also argues the statutory remedies under the Iowa Civil Rights Act are insufficient to vindicate his constitutional interests. The Iowa Civil Rights Act does not address discrimination based on partisan politics or his alleged deprivations of property or liberty as a result of partisan politics. Thus, Godfrey argues, the statutory remedy is insufficient to afford him complete relief.

         Further, Godfrey notes that the remedies under the Iowa Civil Rights Act do not provide the same measure of deterrence as a Bivens action. Godfrey cites FDIC v. Meyers, 510 U.S. 471, 485, 114 S.Ct. 996, 1005 (1994), and Carlson v. Green, 446 U.S. 14, 21-22, 100 S.Ct. 1468, 1473 (1980), for the proposition that Bivens remedies offer more effective deterrence than most statutory remedies because of the availability of punitive damages and the prospect of individual liability.

         Having established the general framework of analysis, Godfrey then turns to Iowa caselaw. Godfrey argues that our prior caselaw does not impede, and in fact supports, recognizing a private cause of action. Godfrey cites several of our early twentieth century cases which he maintains stand for the proposition that damages are available for violations of the Iowa Constitution. See, e.g., Girard v. Anderson, 219 Iowa 142, 148, 257 N.W. 400, 403 (1934); McClurg v. Brenton, 123 Iowa 368, 371, 98 N.W. 881, 882 (1904). Godfrey further claims that Conklin, the recent court of appeals case, is factually and procedurally distinguishable, was incorrectly decided, and moreover, is not binding precedent. See 2015 WL 1332003, at *1.

         2. Defendants.

         The defendants argue that the due process and equal protection clauses of the Iowa Constitution are not self-executing. They claim the plain language of article XII, section 1 requires that "[t]he general assembly shall pass all laws necessary to carry this constitution into effect." Iowa Const. art. XII, § 1. While Godfrey focuses on the narrow term "necessary, " the defendants draw our attention to the use of "shall" in the constitutional provision.

         The defendants argue that if the drafters of the Iowa Constitution had intended the Iowa Constitution to be self-executing, they would have said so. The defendants argue that if the Iowa Constitution was, in fact, self-executing, the language in article XII, section 1 would be unnecessary. Further, the defendants point to article I, section 18, which provides that "[p]rivate property shall not be taken for public use without just compensation first being made." Iowa Const. art. I, § 18. This provision, defendants argue, is the only provision in the Bill of Rights which explicitly authorizes an award of money damages. The defendants note that while a number of states have enacted an analogue of 42 U.S.C. § 1983 for state constitutional claims, Iowa has not enacted such a statute.

         The defendants rely on a trilogy of our prior cases to support their argument that the due process and equal protection clauses of the Iowa Constitution are not self-executing. The first case is State ex rel. Halbach v. Claussen, 216 Iowa 1079, 250 N.W. 195 (1933). In Claussen, this court considered whether the provisions of article IV, section 10 of the Iowa Constitution dealing with holding elections to fill vacancies for office were self-executing. Id. at 1091, 250 N.W. at 200. The Claussen court held that they were not. Id.

         The second Iowa case cited by the defendants in support of their argument that the due process and equal protection clauses of the Iowa Constitution are not self-executing is Pierce v. Green, 229 Iowa 22, 294 N.W. 237 (1940). In Pierce, the plaintiff sought a writ of mandamus ordering the state tax commission to convene and directing them to exercise their honest discretion in assessing all property. Id. at 27, 294 N.W. at 242. We reversed a dismissal of the plaintiff's action. Id. at 55, 294 N.W. at 256. In passing, the Pierce court stated that provisions of the Iowa Constitution, including the equal protection clause, "are not self-executing, but require legislative action to make them effective." Id. at 29, 294 N.W. at 243.

         The third Iowa case cited by the defendants is Van Baale v. City of Des Moines, 550 N.W.2d 153 (Iowa 1996). In Van Baale, we considered claims brought by a discharged Des Moines police officer who unsuccessfully protested his dismissal through the administrative process and through judicial review before finally 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. at 157.

         In addition to this substantive holding, however, the Van Baale court added additional language. Id. The Van Baale court stated, "Although the equal protection clause creates a constitutionally protected right, that right is not self-enforcing. Equal protection rights may be enforced only if the Congress or a legislature provides a means of redress through appropriate legislation." Id. (citation omitted).

         Defendants concede that a number of other state supreme courts have recognized direct damage actions under their state constitutions without specific legislation. However, defendants maintain that some of these state constitutions have different enabling clauses and other constitutional provisions. The defendants claim that these other constitutional provisions provide a stronger basis for damages action than the provisions of the Iowa Constitution.

         The defendants recognize that in Bivens, the United States Supreme Court recognized a direct cause of action for a search and seizure violation of the United States Constitution. 403 U.S. at 397, 91 S.Ct. at 2005. The defendants argue that in more recent cases, the Court has retreated from its Bivens holding. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 523 (2001); Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 2368 (1983).

         The defendants assert that creating a direct cause of action for violations of the due process and equal protections clauses would violate separation of powers. Given the express language of the enabling clause granting the power to enact laws in order to effectuate the Iowa Constitution to the legislature, the courts cannot usurp the power of the legislature by declaring the due process and equal protection provisions of the Iowa Constitution to be self-executing. Defendants cite cases from other states reprising such separation of powers concerns. See, e.g., Lewis v. State, 629 N.W.2d 868, 871 (Mich. 2001); Bandoni v. State, 715 A.2d 580, 595 (R.I. 1998).

         Finally, the defendants argue that the early twentieth century cases such as McClurg, 123 Iowa 368, 98 N.W. 881, and Girard, 219 Iowa 142, 257 N.W. 400, that Godfrey cites as supporting a direct cause of action are inapposite. These cases, defendants stress, are factually and legally distinguishable from Godfrey's case.

         B. Approach of United States Supreme Court to Question of Whether Provisions of the United States Constitution Are Self-Executing for Purposes of Actions for Money Damages.

         This case deals with the proper interpretation of provisions of the Iowa Constitution. Although the precedents of the United States Supreme Court under the United States Constitution are not binding upon us in our interpretation of the Iowa Constitution, we may nonetheless give them respectful consideration in our independent analysis. State v. Ochoa, 792 N.W.2d 260, 267 (Iowa 2010). We may consider the persuasiveness of federal precedent, but we are by no means bound by it. State v. Short, 851 N.W.2d 474, 490 (Iowa 2014); State v. Baldon, 829 N.W.2d 785, 790 (Iowa 2013); State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011).

         The key modern United States Supreme Court precedent on the question of whether provisions of the United States Constitution are self-executing without legislative implementation is Bivens, 403 U.S. at 397, 91 S.Ct. at 2005. Bivens claimed that Federal Bureau of Narcotics agents entered his apartment without a warrant, arrested him, threatened to arrest his family, searched the apartment "from stem to stern, " and took him to a federal courthouse where he was interrogated, booked, and strip searched. Id. at 389, 91 S.Ct. at 2001. Bivens sought damages for the humiliation and mental suffering he sustained from the agents' unlawful conduct based on alleged violation of the search and seizure provisions of the Fourth Amendment. Id. at 389-90, 91 S.Ct. at 2001. The agents moved to dismiss, arguing that Bivens's only remedies existed under state law in tort for violation of the right to privacy. Id. at 390, 91 S.Ct. at 2001-02. The agents argued that the Fourth Amendment only applied to limit the ability of the agents to defend their actions as being a valid exercise of federal power-if the agents' actions offended the Fourth Amendment, then they would be treated under state law as private individuals. Id. at 390-91, 91 S.Ct. at 2002.

         The Bivens Court rejected the agents' argument, maintaining that when federal agents violate the Fourth Amendment their power as federal agents "does not disappear like a magic gift when it is wrongfully used." Id. at 391-92, 91 S.Ct. at 2002. The Fourth Amendment protects individuals from wrongful conduct whether or not state law would find fault with the same conduct if committed by a private individual. Id. at 392-94, 91 S.Ct. at 2002-03.

         The Bivens Court further explained that the privacy rights protected by state law and the Fourth Amendment may be "inconsistent or even hostile" with one another. Id. at 394, 91 S.Ct. at 2003. For example, if a private individual is granted entry to one's home, then the private individual is not liable for trespass-had the homeowner not wished to grant the private individual entry, the homeowner could lawfully bar entry or call the police. Id. at 394-95, 91 S.Ct. at 2003-04. If, however, the individual seeking to enter is acting under federal authority, it is futile to resist entry-the police would not assist the homeowner in repelling an unwelcome federal agent. See id. at 395, 91 S.Ct. at 2004. State law may not act to expand or circumscribe federal power; only federal law may so act. Id. The Fourth Amendment, therefore, must exist as a claim independent from any other state law claims. Id.

         The Bivens Court supported the imposition of damages for violations of the Fourth Amendment by explaining that an action for damages has historically been the ordinary remedy for invasions of privacy interests. Id. The Court explained it is "well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Id. at 396, 91 S.Ct. at 2004 (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777 (1946)). In Bivens, the Court found no special factors which would urge hesitation to create a cause of action absent legislative action, citing special factors like "federal fiscal policy" and imposing liability on a congressional employee acting in excess of authority lawfully delegated by Congress. Id. at 396-97, 91 S.Ct. at 2004-05. Finally, the Court explained, actions for damages have not been expressly forbidden by Congress in favor of another remedy which Congress views as equally effective. Id. at 397, 91 S.Ct. at 2005.

         Justice Harlan concurred in the judgment, explaining that it was uncontroversial that Bivens had a right to be free from unlawful searches and seizures, but that the real question was whether the Constitution placed the ability to create an action for damages for constitutional violations exclusively in the hands of Congress. Id. at 399-400, 91 S.Ct. at 2006 (Harlan, J., concurring). Justice Harlan reasoned that the Supreme Court possessed the authority to create an action for damages because (1) the decision to grant damages does not involve "policy considerations not susceptible of judicial discernment"; (2) the Court has always had the power to grant equitable relief for invasions of constitutional interests without explicit congressional authorization and

if a general grant of jurisdiction to the federal courts by Congress is thought adequate to empower a federal court to grant equitable relief . . . then it seems . . . that the same statute is sufficient to empower a federal court to grant a traditional remedy at law;

(3) state remedies for violations of common law rights are limited when applied to federal officials acting under color of law; (4) injuries of the kind Bivens suffered cannot be remedied by an injunction-they have already occurred; and (5) recognizing a cause of action for damages would likely not result in a great expenditure of judicial resources hearing such claims because (a) these claims would rarely be successful due to jury hostility, and (b) Fourth Amendment interests rank highly on a "scale of social values" compared to other interests which are already protected by the availability of an action for damages. Id. at 402-11, 91 S.Ct. at 2008-12.

         A few years after Bivens, the Supreme Court held that a woman who alleged she had been discriminated against on the basis of sex by a congressman had a cause of action for damages under the Fifth Amendment's Due Process Clause and its equal protection component. Passman, 442 U.S. at 248, 99 S.Ct. at 2279. After determining the plaintiff had a protected right to be free of sexual discrimination under the Fifth Amendment, the Passman Court next asked whether there were any special factors counseling hesitation such that a Bivens remedy for damages should not be granted without Congressional authorization. Id. at 245, 99 S.Ct. at 2277.

         To answer whether there were "special factors" counseling hesitation, the Passman Court reviewed considerations addressed by the Bivens majority and Justice Harlan's concurrence in Bivens. Id. at 245- 48, 99 S.Ct. at 2277-79. First, the Court found damages are an appropriate remedy for due process and equal protection violations because, as described in Bivens, damages are the ordinary remedy for invasion of "personal interests in liberty." Id. at 245, 99 S.Ct. at 2277 (quoting Bivens, 403 U.S. at 395, 91 S.Ct. at 2004 (majority opinion)). Additionally, the Court reasoned that courts will not encounter difficulty in measuring damages due to the experience that courts have in evaluating claims for back pay as a result of sex discrimination. Id. Moreover, according to the Court, equitable relief would not make the plaintiff whole. Id. In a statement that has become epigrammatic, the Court noted "it is damages or nothing." Id. (quoting Bivens, 403 U.S. at 410, 91 S.Ct. at 2012 (Harlan, J., concurring)).

         Second, the Passman Court noted that a suit against a congressman does raise special concerns counseling hesitation. Id. at 246, 99 S.Ct. at 2277. These special concerns, however, should be addressed by reference to the Speech or Debate Clause, which provides principles for determining when a congressman is not acting as a congressman but as an ordinary employer. Id.; see U.S. Const. art. I, § 6, cl. 1. The Court further explained that congressmen are not above the law. Passman, 442 U.S. at 246, 99 S.Ct. at 2277. Therefore, the Court held, if the congressman's actions were not shielded by the Speech or Debate Clause, then the plaintiff's suit could go forward. Id.

         Third, the Passman Court found that Congress had not explicitly declared that a suit for damages is not available in a federal employment discrimination case. Id. at 246-47, 99 S.Ct. at 2278. The Court found no evidence that Title VII of the 1964 Civil Rights Act was intended to foreclose alternative remedies. Id. at 247, 99 S.Ct. at 2278.

         Fourth, and finally, the Passman Court did not perceive the potential for a "deluge" of federal claims if a Bivens claim were allowed. Id. at 248, 99 S.Ct. at 2278. For one thing, 42 U.S.C. § 1983 already existed to provide recovery for plaintiffs when the injuries occurred under color of state law. Id. The Court reasoned that not every tort committed by a federal official would represent a constitutional violation-the necessity of first demonstrating a violation of constitutional rights is a significant hurdle that few plaintiffs could successfully vault. Id.

         The Passman Court concluded by noting that if Congress created an equally effective alternative remedy, the need for a direct constitutional action for damages "might be obviated." Id. The Court, however, seemed to stress the "might" by quoting Justice Harlan's Bivens's concurrence,

Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests. And current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles.

Id. at 248, 99 S.Ct. at 2278-79 (quoting Bivens, 403 U.S. at 411, 91 S.Ct. at 2012).

         In addition to Bivens and Passman, the Supreme Court heard a third case in which the issue of the validity of a constitutional action for damages was squarely before the Court. In Carlson, the Supreme Court recognized a Bivens action in the case of a mother who sued on behalf of her son who, she alleged, suffered injuries and died in federal prison in violation of his due process, equal protection, and Eighth Amendment rights. 446 U.S. at 16, 100 S.Ct. at 1470.

         The Carlson Court explained that when a plaintiff shows they were injured by a federal agent's constitutional violations, the plaintiff has a right to recover damages except when (1) there are "special factors counseling hesitation in the absence of [an] affirmative action by Congress, " or (2) Congress has already "provided an alternate remedy which it explicitly declared to be a substitute for a recovery directly under the Constitution and viewed as equally effective." Id. at 18-19, 100 S.Ct. at 1471. The Court found no special factors counseling hesitation because federal prison officials "do not enjoy such independent status in our constitutional scheme as to suggest that judicially created remedies against them might be inappropriate." Id. at 19, 100 S.Ct. at 1472.

         The Carlson Court next looked at the Federal Tort Claims Act to see if the Act was intended to be a substitute for recovery under the Constitution. Id. The Court held that it was not so intended, finding nothing in its legislative history to show either intent to preempt a Bivens remedy or to create an equally effective remedy for a constitutional violation. Id. Additionally, the Court found that a Bivens remedy is more effective than a remedy under the Federal Tort Claims Act because a Bivens remedy is recoverable against individuals and thus serves a deterrent purpose because individual federal officers face personal financial liability. Id. at 20-21, 100 S.Ct. at 1472-73. Further, the Court reasoned that availability of punitive damages for a Bivens action means the constitutional action is more effective than the statutory action, in which punitive damages are prohibited. Id. at 22, 100 S.Ct. at 1473. The Court concluded that plainly the Federal Tort Claims Act "is not a sufficient protector of the citizens' constitutional rights, and without a clear congressional mandate we cannot hold that Congress relegated respondent exclusively to the FTCA remedy." Id. at 23, 100 S.Ct. at 1474.

         The parties have provided laundry lists of United States Supreme Court cases which they claim either support the continuing viability of Bivens claims or show federal hostility to such claims. The defendants direct our attention to the following cases which they claim show the Supreme Court no longer favors such claims. See Minneci v. Pollard, 565 U.S. 118, 131, 132 S.Ct. 617, 626 (2012) (declining to recognize a Bivens action against individual private employers running a federal prison); Wilkie v. Robbins, 551 U.S. 537, 549-62, 127 S.Ct. 2588, 2597- 605 (2007) (denying a Bivens Fourth and Fifth Amendment claim based on Bureau of Land Management extortion because plaintiff had ample other remedies and because claims in the case were ill-suited for judicially crafted relief); Corr. Servs. Corp, 534 U.S. at 66, 74, 122 S.Ct. at 519, 523 (describing the holding of Bivens as "limited" and declining to allow a damages action against private corporations acting under color of federal law for a constitutional deprivation); Chappell, 462 U.S. at 300, 103 S.Ct. at 2365-66 (finding special factors counseling hesitation due to the unique disciplinary structure of the military establishment in a military race discrimination case).

         In response, Godfrey cites a collection of cases that he claims cite Bivens and support its continued vitality. See, e.g., Groh v. Ramirez, 540 U.S. 551, 555, 124 S.Ct. 1284, 1288-89 (2004) (involving a Bivens action for violation of the Fourth Amendment); Farmer v. Brennan, 511 U.S. 825, 830, 114 S.Ct. 1970, 1975 (1994) (concerning a Bivens action for violation of the Eighth Amendment); Mitchell v. Forsyth, 472 U.S. 511, 515, 105 S.Ct. 2806, 2809 (1985) (presenting a Bivens action for violation of the Fourth Amendment from wiretapping); Harlow v. Fitzgerald, 457 U.S. 800, 805, 102 S.Ct. 2727, 2731 (1982) (underlying suit involved Bivens claims); Butz v. Economou, 438 U.S. 478, 482-83, 98 S.Ct. 2894, 2898 (1978) (underlying suit involved Bivens claims).

         It is no great surprise that, in the years since Bivens, the Court has been cautious about expanding its Bivens holding, and in some cases has retreated from the scope of its holding. See Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, 35 Geo. Wash. Int'l L. Rev. 521, 566-67 (2003); see also Ziglar v. Abbasi, 582 U.S.___, ___, S.Ct.___, ___, 2017 WL 2621317, at *12 (2017) ("[T]he Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity."). Many cases appearing to grant potentially expansive rights from the Warren and Burger Courts have been limited or contained. See Nelson Lund, The Rehnquist Court's Pragmatic Approach to Civil Rights, 99 Nw. U. L. Rev. 249, 288 (2004); see generally Ronald Kahn, The Supreme Court as a (Counter) Majoritarian Institution: Misperceptions of the Warren, Burger, and Rehnquist Courts, 1994 Det. C.L. Rev. 1, 5-6 (1994). But because we do not march in lockstep with federal law, the continuing viability of federal Bivens claims would be important only if later cases cast doubt on the reasoning of the original opinion.

         Further, as noted by the New York Court of Appeals, the "concerns of federalism underlie much of the Supreme Court's reluctance to expand relief available . . . and thereby unduly interfere with States' rights." Brown v. State, 674 N.E.2d 1129, 1143 (N.Y. 1996) (discussing actions under § 1983); see also Jennifer Friesen, Recovering Damages for State Bills of Rights Claims, 63 Tex. L. Rev. 1269, 1275 (1985) (stressing state judges should not be affected by need of federal courts to make nationally uniform rules); Gary S. Gilden, Redressing Deprivations of Rights Secured by State Constitutions Outside the Shadow of the Supreme Court's Constitutional Remedies Jurisprudence, 115 Penn. St. L. Rev. 877, 882 (2011) ("[I]t is well settled that the Supreme Court is constrained by federalism when asked to recognize a right under the United States Constitution. . . . However, concerns over federal incursion on the prerogative of the states do not exist when a state court enforces the guarantees of the state's own constitution."). We have no such federalism concerns to dilute our approach to judicially enforceable individual rights provisions of the Iowa Constitution.

         In any event, a review of the caselaw since Bivens does not show a retreat from Bivens reasoning as applied to situations like Godfrey's. Rather, the cases show an unwillingness to expand Bivens claims beyond the Fourth Amendment circumstances in Bivens itself, the due process/equal protection/cruel and unusual punishment federal prison context in Carlson, and the due process/equal protection employment discrimination context in Passman. Had cases since Passman and Carlson weakened these cases' holdings or cast doubt on their reasoning, this information would be important in our determination of their persuasive value. As it is, Bivens, Carlson, and Passman remain to persuade us or fail to persuade on their own terms.

         A final federal case of note comes from the United States District Court for the Northern District of Iowa which held a Bivens claim would be recognized under Iowa law. McCabe v. Macaulay, 551 F.Supp.2d 771, 785 (N.D. Iowa 2007). In McCabe, the plaintiffs brought Bivens actions against the defendants, who were state police officers, under both the Federal and State Constitutions, arguing that we would recognize a Bivens action under the Iowa Constitution. Id. at 784. The court discussed our holding in Cunha v. City of Algona, 334 N.W.2d 591 (Iowa 1983), in which we rejected a Bivens action against a municipal government. McCabe, 551 F.Supp.2d at 784. The federal district court explained that McCabe was distinguishable from Cunha, stating,

At most, Cunha rejects a direct cause of action under the due process clause of the Iowa Constitution for monetary damages against a local governmental entity for reasons expressed in Monell [v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978), a United States Supreme Court case extending § 1983 liability to local governments]. It does not address whether there is an Iowa analogue to Bivens under the common law when, as here, Iowa government officials are alleged to have violated the Iowa Constitution and the Iowa General Assembly has not specifically provided a statutory remedy for such violations.

Id. at 785. The federal district court predicted that we would be persuaded by Bivens and the state courts that have accepted Bivens claims under their state constitutions and recognize a Bivens claim under the Iowa Constitution. Id.; see Dorwart v. Caraway, 58 P.3d 128, 133-36 (Mont. 2002). Another federal district court agreed with McCabe that we would recognize a Bivens action under the Iowa Constitution in Peters v. Woodbury County, 979 F.Supp.2d 901, 971 (N.D. Iowa 2013).

         C. State Court Cases Considering Whether State Constitutional Provisions Are Self-Executing for Purposes of Actions for Money Damages.

         1. Introduction.

         Many other state appellate courts have had occasion to determine whether constitutional provisions in their state constitutions are self-executing for purposes of claims for money damages. See Dorwart, 58 P.3d at 133 & n.1 (listing states that had recognized an implied cause of action as of 2002); Sharon N. Humble, Annotation, Implied Cause of Action for Damages for Violation of Provisions of State Constitutions, 75 A.L.R. 5th 619, 624-28 (2000). The states that have considered the issue are nearly equally divided in whether to recognize implied constitutional actions for damages[2] or whether to decline to recognize such actions.[3]

         2. Overview of state supreme court cases holding state constitutional provisions self-executing for purposes of money damages.

         Among the better reasoned state supreme court decisions interpreting whether state constitutional provisions are self-executing for purposes of monetary damages are Dorwart, 58 P.3d 128; Brown, 674 N.E.2d 1129; and Corum v. University of North Carolina, 413 S.E.2d 276 ( N.C. 1992).

         In Brown, claimants brought a class action against the State of New York and other defendants for violating their rights to be free of unreasonable searches and seizures and to equal protection under the New York Bill of Rights. 674 N.E.2d at 1131. The claims arose out of an incident in which every nonwhite male encountered by police during a five-day "street sweep" was stopped, interrogated, and had their hands and forearms inspected by the police after a white woman reported that a black male robbed her at knife point. Id. at 1131-32. The claimants asked the Court of Appeals of New York to recognize the action, which the court called a "constitutional tort"-a cause of action for damages under the constitution. Id. at 1132-33 (citing Bivens as well as California, Maryland, Massachusetts, and Illinois cases recognizing state constitutional actions for damages).

         The Brown court began its analysis by recognizing that New York lacked a statute authorizing damages for violations of constitutional rights, unlike 42 U.S.C. § 1981. Id. at 1137. If any damages remedy existed, therefore, it must be implied. Id. The court recognized, however, that the state constitutional provision must be self-executing in order for a court to imply an action for damages. Id. Here, the court explained, the rights to equal protection and to be free of unreasonable searches and seizures were self-executing. Id.

         Surveying the caselaw from other states, the Brown court determined that, when state courts imply actions for damages under their constitutions, they do so based on either (1) the reasoning in the Restatement (Second) section 874A, (2) by analogy to Bivens, (3) common law predecessors of the constitutional provision at issue, or (4) a combination of the previous three. Id. at 1138;[4] see Widgeon, 479 A.2d at 923-24 (justifying an implied action for damages under the Maryland Constitution almost entirely based on common law predecessors- specifically a trespass action for violation of right to be free of unreasonable search and seizure guaranteed by the Magna Carta).

         The Brown court also explained that the 1777 New York Constitution's provisions on equal protection and search and seizure are both based on older, common law antecedents-in the case of unreasonable search and seizure all the way back to the Magna Carta. Id. at 1138-39. The availability of these common law antecedents supports the position that the framers of the constitution anticipated that such actions would remain available under the constitution. Id. at 1139. Additionally, the recorded debates of the New York Constitutional Convention of 1938 and contemporaneous cases show the delegates assumed that victims of unconstitutional actions could sue for damages. Id.

         The Brown court also held that implying a damages remedy is consistent with the purposes of the constitutional provisions and is "necessary and appropriate to ensure the full realization of the rights they state." Id. These provisions clearly define duties for government officers of the state. Id. at 1140. The abuses suffered by the claimants were exactly the sort of abuses that these constitutional provisions were designed to prevent. Id. Damages, the court stressed, "are a necessary deterrent for such misconduct. . . . [I]njunctive or declaratory relief [falls] short." Id. at 1141 (noting that because claimants were never charged with a crime, excluding any evidence resulting from their interrogations serves no deterrent purpose). Further, damages have been historically recognized as the appropriate remedy for invasions of personal liberties. Id.

         Thus, the Brown court held that the plaintiffs had an implied right of damages under the search and seizures and equal protection clauses of the New York Constitution. Id. A dissent argued the court lacked jurisdiction based on article VI, section 9 (stating the court has jurisdiction to hear such claims as the legislature may provide) of the New York Constitution and that sovereign immunity protected the state. Id. at 1145-48, 1152-54 (Bellacosa, J., dissenting). The dissent further criticized equating constitutional damages actions with common law torts. Id. at 1148-52; see Gail Donoghue & Jonathan I. Edelstein, Life After Brown: The Future of State Constitutional Tort Actions in New York, 42 N.Y.L. Sch. L. Rev. 447, 462-71 (1998) [hereinafter Donoghue] (describing the Brown opinion and the dissent).

         In Corum, the Supreme Court of North Carolina held there was a direct cause of action under the North Carolina Constitution for damages for a violation of a plaintiff's free speech rights. 413 S.E.2d at 292. Corum was a tenured professor at Appalachian State University who also held the position of Dean of Learning Resources. Id. at 280. After a dispute with other university officials regarding the location of a library collection, Corum was removed from his position as Dean, allegedly in retaliation for Corum's vocal opposition to the move. Id. at 281-82. Corum sought damages for violating North Carolina's constitutional provisions protecting the right to free speech, equal protection, and "fundamental principles" of liberty. Id. at 280; see also Grant E. Buckner, North Carolina's Declaration of Rights: Fertile Ground in a Federal Climate, 36 N.C. Cent. L. Rev. 145, 157, 163 n.98 (2014) (describing North Carolina's protection of "fundamental principles" as a rich source of individual rights, including the right to earn a livelihood through lawful business).

         The Corum court emphasized the primacy of the Declaration of Rights in article I of the North Carolina Constitution. 413 S.E.2d at 290. According to the court, "The very purpose of the Declaration of Rights is to ensure that the violation of these rights is never permitted by anyone who might be invested under the Constitution with the powers of the State." Id. The court emphasized that "[w]e give our Constitution a liberal interpretation in favor of its citizens with respect to those provisions which were designated to safeguard the liberty and security of the citizens in regard to both person and property." Id.

         A third illustrative case is Dorwart, 58 P.3d 128. In Dorwart, a judgment debtor sued a county sheriff and sheriff's deputies following seizure of property alleging due process and search and seizure violations under Federal and State Constitutions. Id. at 129-30. Law enforcement had writs of execution related to judgment indebtedness, but claimed nonexistent authority to search Dorwart's home. Id. at 130. The Dorwart court held that the plaintiff had causes of action under the Montana Constitution for violation of the due process and search and seizure provisions. Id. at 137.

         The Dorwart court began its analysis by reviewing Bivens, Passman, and Carlson. Id. at 133-36. The court noted in Bivens, the United States Supreme Court had said "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. . . . [F]ederal courts may use any available remedy to make good the wrong done." Id. at 135 (alterations in original) (quoting Bivens, 403 U.S. at 395-96, 91 S.Ct. at 2004 (majority opinion)). The Dorwart court noted that damage actions were endorsed by Restatement (Second) section 874A. Id. The court cited various cases standing for the proposition that damage actions for violations of individual rights were recognized under English common law. Id. at 135-36; see Moresi v. State, 567 So.2d 1081, 1092 (La. 1990); Widgeon, 479 A.2d at 924. The court rejected the argument that common law remedies were sufficient, noting that common law causes of action intended to regulate the relationships among and between individuals are not adequate to redress the type of damage caused by the invasion of constitutional rights. Dorwart, 58 P.3d at 137.

         3. Overview of state supreme court cases rejecting view that state constitutional provisions are self-executing.

         Several cases illustrate the reasoning behind state supreme court cases which reject the notion that state constitutional provisions are self-executing for purposes of actions for money damages.

         The Supreme Court of Oregon rejected a constitutionally based claim for money damages in Hunter v. City of Eugene, 787 P.2d 881, 884 (Or. 1990). In Hunter, striking teachers argued their state constitutional rights were violated by city employees. Id. at 882. The Oregon court rejected an action for money damages under the free speech provisions of the Oregon Constitution. Id. at 884. The court stated it was "very reluctant to impose any civil responsibility in the form of damages for violation of such a right, absent specific legislation or clear legislative intent." Id. at 883. The court declared that "Oregon's Bill of Rights provides no textual or historical basis for implying a right to damages for constitutional violations." Id. Lacking legislative guidance, the court observed "this court is in a poor position to say what should or should not be compensation for violation of a state constitutional right and what limitations on liability should be imposed." Id. at 884. The court noted that federal legislation such as 42 U.S.C. § 1983 and the Federal Civil Rights Act of 1964 provided at least some guidance for such claims on the federal level. Id. at 883.

         The Texas Supreme Court rejected an action for monetary damages under the free speech and assembly clause of the Texas Constitution in City of Beaumont v. Bouillion, 896 S.W.2d 143, 150 (Tex. 1995). The Beaumont court emphasized cases which were decided based on the presence or absence of alternative remedial schemes. Id. at 147-48. The court noted that no one had presented evidence suggesting that at the time the Texas Constitution was written, it was intended to provide an implied right of damages for the violation of constitutional rights. Id. at 148. The court further emphasized the language of the Texas Constitution, which suggested that acts in violation of constitutional provisions are void. Id. at 149.

         The Colorado Supreme Court rejected a cause of action for money damages under the due process clause of the Colorado Constitution in a real estate zoning matter in Board of County Commissioners v. Sundheim, 926 P.2d 545, 553 (Colo. 1996) (en banc). The Sundheim court recognized that the United States Supreme Court found a cause of action for money damages in Bivens, but emphasized more recent Supreme Court cases that have declined to extend Bivens to other factual contexts. Id. at 551-52; see Bush v. Lucas, 462 U.S. 367, 390, 103 S.Ct. 2404, 2417 (1983); Chappell, 462 U.S. at 305, 103 S.Ct. at 2368. While the Sundheim court recognized there might be a state constitutional cause of action when there was no adequate remedy, it noted the legislature had established a framework for challenging a zoning ordinance. 926 P.2d at 553. As a result, the Sundheim court found it unnecessary to find a constitutionally based damage remedy in this case but did not necessarily rule it out under different circumstances. Id.; see also Dick Fischer Dev. No. 2, Inc. v. Dep't of Admin., 838 P.2d 263, 268 (Alaska 1992) (denying damages for due process violation when other administrative remedies available); Rockhouse Mountain Prop. Owners Ass'n, Inc. v. Town of Conway, 503 A.2d 1385, 1389 (N.H. 1986) (declining to find constitutional action for money damages under due process or equal protection provisions of state constitution when administrative procedures available); Shields v. Gerhart, 658 A.2d 924, 935-36 (Vt. 1995) (declining damages for free speech violation because of legislatively created remedies); see also Lance R. Chism, Bivens-Type Actions Under State Constitutions-Will Tennessee Give You a Remedy?, 30 U. Mem. L. Rev. 409, 425 (2000) (noting states not finding an action for damages usually rely on alternative legislative remedy).

         D. Iowa Caselaw on Self-Executing Constitutional Claims.

         The Iowa Supreme Court has a long and storied tradition of deciding cutting-edge cases well in advance of later decisions of the United States Supreme Court and other courts. We were in advance of the United States Supreme Court in In re Ralph, Morris 1, 6-7 (Iowa 1839), which rejected the approach later adopted by the United States Supreme Court in the infamous Dred Scott case. See Dred Scott v. Sanford, 60 U.S. 393, 454 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV. We advanced the cause of civil rights by refusing to countenance segregation in education or public accommodations in Clark and Coger many decades before the United States Supreme Court decided Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692 (1954). See Coger v. Nw. Union Packet Co., 37 Iowa 145, 158 (1873); Clark v. Bd. of Dirs., 24 Iowa 266, 277 (1868). We invalidated sodomy statutes early on in State v. Pilcher, 242 N.W.2d 348, 359 (Iowa 1976), and we recognized gay marriage rights in Varnum, 763 N.W.2d 862, 907, well in advance of the United States Supreme Court decision in Obergefell v. Hodges, 576 U.S.___, ___, 135 S.Ct. 2584, 2604-05 (2015).

         Similarly, fifty years before the United States Supreme Court decided Bivens, we decided several cases finding that the search and seizure clause of the Iowa Constitution supported an action for damages without implementing legislation. In McClurg, we reversed a directed verdict in favor of the defendants on a claim for damages against an officer who conducted a search without a warrant. 123 Iowa at 371, 98 N.W. at 882. We emphasized,

The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected with the most solicitous care by every court in the English-speaking world, from Magna [Carta] down to the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic.

Id. The right to be free from arbitrary search and seizure, was also embraced in statute and in the common law. Id. at 372, 98 N.W. at 882.

         We returned to the question of damages in the search and seizure context in Krehbiel v. Henkle, 142 Iowa 677, 121 N.W. 378 (1909). In Krehbiel, the court noted that the right of citizens to be secure in person and property against wrongful seizures and searches is "zealously safeguarded and has express recognition in our State Constitution." Id. at 679-80, 121 N.W. at 379-80; see Iowa Const. art. I, § 8. The court declared it was "thoroughly well settled" that "a violation of this right without reasonable ground therefor gives the injured party a right of action." Krehbiel, 142 Iowa at 680, 121 N.W. at 380. In an appeal of the case, the court affirmed an award of punitive damages in an unspecified amount, noting that such damages were available for conduct that was "wanton and reckless, and in disregard of the plaintiff's rights." Krehbiel v. Henkle, 152 Iowa 604, 606, 129 N.W. 945, 945 (1911).

         We considered the thoroughly well settled principle that violation of article I, section 8 gives rise to a cause of action in State v. Tonn, 195 Iowa 94, 191 N.W. 530 (1923), abrogated by State v. Cline, 617 N.W.2d 277');">617 N.W.2d 277, 291 (Iowa 2000). In Tonn, we rejected the exclusionary rule for search and seizure violations. Id. at 107, 191 N.W. at 536. The court in Tonn, however, emphasized the rejection "would not detract one iota from the full protection vouchsafed to the citizen by the constitutional provisions, " observing, "[a] trespassing officer is liable for all wrong done in an illegal search or seizure." Id. at 106, 191 N.W. at 535. We further said the right against unreasonable searches and seizures was "a sacred right, and one which the courts will rigidly enforce." Id.

         McClurg and Krehbiel were cited with approval in Girard, 219 Iowa at 148, 257 N.W. at 403. In Girard, consistent with the thoroughly well settled principle of our prior cases, we straightforwardly declared, "[a] violation of the state and federal constitutional provisions against the unreasonable invasion of a person's home gives the injured party a right of action for damages for unlawful breaking and entering." Id. Thus, a damages action for constitutional violations of search and seizure under the Iowa Constitution was thoroughly well settled in Iowa law decades before the United States Supreme Court embraced the same concept in Bivens. See Krehbiel, 142 Iowa at 680, 121 N.W. at 380.

         While we held that search and seizure provisions of the Iowa Constitution are self-executing in Girard, we came to a different conclusion on article IV, section 10 of the Iowa Constitution regarding the holding of elections to fill vacancies for office. In Claussen, we came to the commonsense conclusion that this provision was not self-executing. 216 Iowa at 1091, 250 N.W. at 200. The constitutional provision itself failed to provide the necessarily detailed framework for implementing elections, referring to situations which occurred when "no mode is provided by the Constitution and laws for filling such vacancy" in offices. Id. at 1083, 250 N.W. at 197 (quoting Iowa Const. art. IV, § 10). If the vacancy were to be filled by "election of the people, " the General Assembly had to provide the machinery for the election. Id. at 1090, 250 N.W. at 200. The Iowa Supreme Court thus did not have the legislative power to create the framework for a special election in the absence of actions by other branches of government. Id. at 1091, 250 N.W. at 200.

         In Pierce, we considered a mandamus claim to require the Iowa tax commission to meet and exercise its power to fairly apportion taxes. 229 Iowa at 24-26, 294 N.W. at 241-42. In passing, we stated the uniformity provisions of the Iowa Constitution "are not self-executing, but require legislative action to make them effective." Id. at 29, 294 N.W. at 243. In context, however, the legislative action required referred to implementing legislation to establish the machinery necessary to levy taxes. See id. It did not relate to the question of whether a damage remedy could arise when the implementation of the uniformity provision by the state violated the uniformity clause. See id. Indeed, there is language in Pierce supportive of Godfrey's position-

[W]here the law imposes a duty upon a state officer and his refusal or failure to perform it affects injuriously . . . the personal or property right of an individual, it cannot be that the court is without power or authority to administer an appropriate remedy.

Id. at 32, 294 N.W. at 245 (quoting McKeown v. Brown, 167 Iowa 489, 498, 149 N.W. 593, 596 (1914)).

         The next case of interest is Cunha, 334 N.W.2d 591. In that case, a former prisoner sued Kossuth County for a due process violation. Id. 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 ...


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