from the Iowa District Court for Johnson County, Chad Kepros,
appeal from the denial of motions to dismiss claims arising
out of an allegedly wrongful prosecution.
M. Livingston and Kristopher K. Madsen of Stuart Tinley Law
Firm, LLP, Council Bluffs, and Susan D. Nehring, Assistant
County Attorney, Iowa City, for appellants Johnson County,
Anne Lahey, Naeda Elliott, and Dana Christiansen.
R. Goers and Susan Dulek, Assistant City Attorneys, for
appellants City of Iowa City and Andrew Rich.
A. Diaz, Swisher, and M. Victoria Cole, Cedar Rapids, for
R. Ostergren, Muscatine, for amici curiae Iowa County
Attorneys Association and Iowa State Association of Counties.
E. Fenton of Law Offices of Joel E. Fenton, PLC, Des Moines,
for amicus curiae Iowa Association for Justice.
Venckus was charged with sexual abuse in the second degree
and acquitted. Following acquittal, Venckus filed this civil
action against the police investigator, the prosecutors, and
the municipalities that investigated and prosecuted the
criminal case. Venckus asserted common law claims and state
constitutional claims against the defendants. The defendants
moved to dismiss Venckus's claims on the grounds the
defendants were immune from suit, the claims were time
barred, and the state constitutional claims were disallowed
because an adequate nonconstitutional remedy existed. The
district court denied the defendants' motions to dismiss,
and we granted the defendants' applications for
court reviews rulings on motions to dismiss for the
correction of legal error. Godfrey v. State, 898
N.W.2d 844, 847 (Iowa 2017). To the extent that we review
constitutional claims, the standard of review is de novo.
See McGill v. Fish, 790 N.W.2d 113, 116-17 (Iowa
2010). In reviewing the ruling, "we accept all
well-[pleaded] facts in the petition as true."
Godfrey, 898 N.W.2d at 847.
February 2013, Venckus resided in Iowa City, Johnson County,
Iowa. On the weekend of February 15-17, Venckus left Iowa
City and spent the weekend at his parents' home in
Chicago, Illinois. While Venckus was in Chicago,
Venckus's roommates hosted a party at their residence.
After the party ended, a man broke into the residence and
sexually assaulted an intoxicated and incapacitated woman who
had remained in the home. The woman managed to escape during
the assault and obtain assistance.
City Police Department Investigator Andrew Rich was the
principal investigator assigned to the case. The victim
reported a single assailant. The police found a wallet
outside a window well of the residence. The wallet belonged
to Ryan Lee Markley. The police found Markley's handprint
on the basement window used for entry. The police found a
boot print matching Markley's boot on a chair underneath
the window. The police recovered a marijuana pipe stolen from
the residence in Markley's apartment. Markley's DNA
matched DNA found on the victim's body. However, DNA of
"one single sperm found in the [victim's]
cervix" matched Venckus's DNA.
police interviewed Venckus and his roommates. All
interviewees explained Venckus was in Chicago at the relevant
time. To prove his alibi, Venckus turned over his cell phone
and bank card to Rich. Venckus provided the names of alibi
witnesses. Venckus also obtained an expert witness who
accounted for the presence of Venckus's DNA. The assault
occurred in Venckus's home. The blanket that covered the
victim while she slept was from Venckus's bedroom, and
the blanket was replete with Venckus's DNA. Venckus's
expert witness report showed "the DNA evidence of one
sperm found in the cervix represented evidence of a transfer
from the blanket covering the victim and could not represent
the sole evidence of DNA left by a rapist."
arrested Venckus on January 24, 2014, on the charge of sexual
abuse in the second degree. The affidavit supporting the
arrest warrant provided as follows:
This Def[endant] stated during an interview that he was not
even in [Iowa City] when the attack occurred. However, DNA
evidence developed in the course of this investigation proves
the Def[endant] was not only present but participate[d] in
this attack and left the victim with multiple injuries
requiring immediate medical attention.
Johnson County Attorney's Office-specifically defendants
Anne Lahey, Naeda Elliott, and Dana Christiansen-prosecuted
the case. From August 2015 through the criminal trial in
September 2016, Venckus's defense counsel uploaded
exculpatory information onto a web-based file sharing
service, which was made available to the police and
prosecutors. The prosecutors took the case to trial. Venckus
Venckus filed the petition at issue. Venckus asserted claims
against Investigator Rich and the City of Iowa City
(collectively police defendants) for defamation, abuse of
process, and malicious prosecution. Venckus asserted claims
against Lahey, Elliott, Christiansen, and Johnson County
(collectively prosecutor defendants) for abuse of process.
Against all defendants, Venckus asserted tort claims arising
under the Iowa Constitution, including violations of the
following: the rights to freedom of movement and association
under article I, section 1; the right to liberty arising
under article I, section 1; the rights to due process, a fair
trial, and equal protection guaranteed by article I, sections
6 and 9; and the right against unreasonable search and
seizure guaranteed by article I, section 8.
defendants moved to dismiss the petition. The prosecutor
defendants contended they were absolutely immune from suit.
The police defendants contended they were absolutely immune
from suit, the plaintiff's claims were barred by the
statute of limitations, and the state constitutional claims
were disallowed because an adequate nonconstitutional remedy
existed under the Iowa Municipal Tort Claims Act (IMTCA). The
district court granted the motions to dismiss. Venckus filed
a motion to reconsider. The district court granted the motion
and denied in entirety the motions to dismiss.
prosecutor defendants contend they are absolutely immune from
suit pursuant to the judicial process immunity. In resolving
the argument, we first discuss the nature and scope of the
judicial process immunity. We then determine whether the
district court erred in denying the prosecutor
defendants' motion to dismiss.
advance the practical administration of government, the law
recognizes certain government officials should be absolutely
immune from suit for conduct relating to the discharge of
certain government functions. See Hlubek v. Pelecky,
701 N.W.2d 93, 96 (Iowa 2005) ("Absolute immunity
ordinarily is available to certain government officials such
as legislators, judges, and prosecutors acting in their
official capacities . . . .").
well-established immunity is the judicial process immunity.
Under the judicial process immunity, government officials are
absolutely immune from suit and damages for conduct
"intimately associated with the judicial phase of the
criminal process." Minor v. State, 819 N.W.2d
383, 394 (Iowa 2012) (quoting Imbler v. Pachtman,
424 U.S. 409, 430, 96 S.Ct. 984, 995 (1976)). The judicial
process immunity protects both government officials and their
employing municipalities. See Moser v. County of Black
Hawk, 300 N.W.2d 150, 152, 153 (Iowa 1981) (affirming
dismissal of malicious prosecution claim against county based
on county attorney's entitlement to absolute immunity);
Burr v. City of Cedar Rapids, 286 N.W.2d 393, 396
(Iowa 1979) ("The public policy which requires immunity
for the prosecuting attorney, also requires immunity for both
the state and the county for acts of judicial and
quasi-judicial officers in the performance of the duties
which rest upon them . . . ." (quoting Gartin v.
Jefferson County, 281 N.W.2d 25, 31 (Iowa Ct. App.
well established the judicial process immunity applies to
common law torts, but it is a question of first impression
whether the judicial process immunity applies to torts
arising under the Iowa Constitution. In Baldwin v. City
of Estherville, decided last term, we intimated the
immunity would apply, noting "[c]onstitutional torts are
torts, not generally strict liability cases." 915 N.W.2d
259, 281 (Iowa 2018). We further noted traditional immunities
"could apply to state constitutional claims."
Id. We did not decide the issue, however, because
the issue was not directly presented. See id.
that the question is directly presented, we make explicit
what was implicit in Baldwin: the judicial process
immunity applies to state constitutional torts. This
conclusion necessarily flows from the nature of the immunity
itself. "When faced with a question of whether a
government official has absolute immunity from civil
liability . . ., we employ a 'functional approach' to
determine whether those actions 'fit within a common-law
tradition of absolute immunity.'" Minor,
819 N.W.2d at 394 (quoting Buckley v. Fitzsimmons,
509 U.S. 259, 269, 113 S.Ct. 2606, 2613 (1993)). "Under
this 'functional approach,' we do not look to the
identity of the government actor, but instead to 'the
nature of the function performed.'" Id.
(quoting Forrester v. White, 484 U.S. 219, 229, 108
S.Ct. 538, 545 (1988)); see Cleavinger v. Saxner,
474 U.S. 193, 201, 106 S.Ct. 496, 501 (1985) ("Absolute
immunity flows not from rank or title or 'location within
the Government,' but from the nature of the
responsibilities of the individual official." (quoting
Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894,
2913 (1978))). We grant absolute immunity for only
those governmental functions that were historically viewed as
so important and vulnerable to interference by means of
litigation that some form of absolute immunity from civil
liability was needed to ensure that they are performed
"with independence and without fear of
Rehberg v. Paulk, 566 U.S. 356, 363, 132 S.Ct. 1497,
1503 (2012) (quoting Pierson v. Ray, 386 U.S. 547,
554, 87 S.Ct. 1213, 1218 (1967)).
functional approach demonstrates the "[i]mmunity . . .
is not for the protection of the [official] personally, but
for the benefit of the public." Beck v.
Phillips, 685 N.W.2d 637, 643 (Iowa 2004). The immunity
benefits the public by protecting government officials
involved in "the judicial process from the harassment
and intimidation associated with litigation."
Minor, 819 N.W.2d at 394 (emphasis omitted) (quoting
Burns v. Reed, 500 U.S. 478, 494, 111 S.Ct. 1934,
1943 (1991)). The same public-interest considerations that
justify the judicial process immunity apply whether the legal
claims arise under common law or the state constitution.
See Butz, 438 U.S. at 512, 98 S.Ct. at 2913
("Absolute immunity is thus necessary to assure that
judges, advocates, and witnesses can perform their respective
functions without harassment or intimidation.").
further support for our conclusion the judicial process
immunity applies to state constitutional torts from analogous
federal cases. The federal circuit courts unanimously hold
the judicial process immunity applies to federal
constitutional claims brought pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388, 91 S.Ct. 1999 (1971). See Humphries v.
Houghton, 442 Fed.Appx. 626, 628-29, 629 n.5 (3d Cir.
2011) (per curiam) (stating absolute immunity for federal
prosecutor applies to Bivens claims); Rodriguez
v. Lewis, 427 Fed.Appx. 352, 353 (5th Cir. 2011) (per
curiam) ("Because Martinez was acting within the scope
of his employment as a prosecutor during the sentencing
hearing, he enjoys absolute immunity from Bivens
liability."); Pangelinan v. Wiseman, 370
Fed.Appx. 818, 819 (9th Cir. 2010) (holding absolute immunity
applies to Bivens claims against federal judges and
federal prosecutors); Nogueras-Cartagena v. U.S.
Dep't of Justice, 75 Fed.Appx. 795, 798 (1st Cir.
2003) (per curiam) ("The existence of absolute
prosecutorial immunity is a matter of function . . . . In
this instance, the challenged conduct . . . was intimately
associated with the judicial phase of the criminal process.
It was, therefore, essentially prosecutorial in nature.
Hence, immunity attaches." (Citations omitted.));
Blakely v. United States, 276 F.3d 853, 871 (6th
Cir. 2002) (holding absolute immunity barred Bivens
claim); Benson v. Safford, 13 Fed.Appx. 405, 407
(7th Cir. 2001) (holding in Bivens action that
"[p]rosecutors . . . are absolutely immune from suits
challenging conduct intimately associated with the criminal
judicial process"); Bolin v. Story, 225 F.3d
1234, 1242 (11th Cir. 2000) (per curiam) (holding absolute
immunity applies to Bivens claims); Lyles v.
Sparks, 79 F.3d 372, 376 (4th Cir. 1996) ("In
Bivens-type actions, as at common law, prosecutors
enjoy absolute immunity for conduct 'intimately
associated with the judicial phase of the criminal
process.'" (quoting Imbler, 424 U.S. at
430, 96 S.Ct. at 995)); Thompson v. Walbran, 990
F.2d 403, 404 (8th Cir. 1993) (per curiam) (holding absolute
immunity barred Bivens claim against a prosecutor);
Daloia v. Rose, 849 F.2d 74, 75 (2d Cir. 1988) (per
curiam) ("The prosecutor's activities in this case
were all 'intimately associated with the judicial phase
of the criminal process,' and he is therefore entitled to
absolute immunity." (quoting Imbler, 424 U.S.
at 430, 96 S.Ct. at 995)); Tripati v. U.S. Immigration
& Naturalization Serv., 784 F.2d 345, 346-47 (10th
Cir. 1986) (per curiam) (finding a U.S. attorney was
absolutely immune from a Bivens claim).
appears to recognize the judicial process immunity applies
here. Rather than distinguishing this case from our
precedents, he asks us to do away with absolute immunity
regardless of the source of the legal claim and instead adopt
a rule of qualified immunity under the all-due-care standard
set forth in Baldwin. See 915 N.W.2d at
279-81. In support of his position with respect to his
constitutional claims, Venckus argues absolute immunity is
inconsistent with the Iowa Constitution. With respect to all
of his claims, Venckus argues prosecutorial misconduct and
wrongful convictions are rampant and absolute immunity
contributes to this because it gives government officials a
wide berth to engage in misconduct.
reject Venckus's request to do away with the judicial
process immunity. First, with respect to his constitutional
claims, it appears Venckus conflates two separate issues. The
judicial process immunity is a common law immunity. It bars
suit and damages against government officials for conduct
intimately associated with the judicial process. It immunizes
conduct without regard to the substantive source of the legal
claim. In contrast, the all-due-care immunity set forth in
Baldwin is a constitutional immunity. It bars suit
and damages only for constitutional claims and only when the
government official proves "that he or she exercised all
due care to conform with the requirements of the law."
Id. at 260-61. The Baldwin immunity is in
addition to any other common law immunities or defenses
available and not a comprehensive substitute immunity.
Venckus offers no compelling justification to overrule our
long-standing precedents holding the judicial process
immunity applies to common law claims. "From the very
beginnings of this court, we have guarded the venerable
doctrine of stare decisis and required the highest possible
showing that a precedent should be overruled before taking
such a step." Kiesau v. Bantz, 686 N.W.2d 164,
180 n.1 (Iowa 2004) (Cady, J., dissenting), overruled by
Alcala v. Marriott Int'l, Inc., 880 N.W.2d 699, 708
& n.3 (Iowa 2016); see Hildreth v. Tomlinson, 2
Greene 360, 361 (Iowa 1849). Venckus has not established our
prior decisions should be overruled. To the contrary, as
discussed above, the judicial process immunity is of long
standing in Iowa and was recently reaffirmed in
Minor. See 819 N.W.2d at 397-99.
with respect to all of his claims, Venckus's policy
concerns are not new. In crafting the judicial process
immunity over the course of time, our cases have considered
the issues of prosecutorial misconduct, the risk of wrongful
conviction, and the need for unencumbered judicial process.
The cases have struck the right policy balance between these
competing concerns. See Gregoire v. Biddle, 177 F.2d
579, 581 (2d Cir. 1949) ("As is so often the case, the
answer must be found in a balance between the evils
inevitable in either alternative. In this instance it has
been thought in the end better to leave unredressed the
wrongs done . . . than to subject those who try to do their
duty to the constant dread of retaliation."). While the
absolute immunity is necessary for the proper functioning of
the judicial process, it does not give government officials
carte blanche to engage in misconduct. The judicial process
immunity is narrowly tailored to immunize only conduct
"intimately associated with the judicial phase of the
criminal process." See Minor, 819 N.W.2d at
394- 95 (quoting Imbler, 424 U.S. at 430, 96 S.Ct.
at 995). Further, there are other mechanisms that restrain
official conduct, including vigorous judicial oversight in
the district court, appellate review, postconviction-relief
proceedings, attorney disciplinary proceedings, human
resource management, and elections. As the Supreme Court
[T]he safeguards built into the judicial process tend to
reduce the need for private damages actions as a means of
controlling unconstitutional conduct. The insulation of the
judge from political influence, the importance of precedent
in resolving controversies, the adversary nature of the
process, and the correctability of error on appeal are just a
few of the many checks on malicious action by judges.
Advocates are restrained not only by their professional
obligations, but by the knowledge that their assertions will
be contested by their adversaries in open court. Jurors are
carefully screened to remove all possibility of bias.
Witnesses are, of course, subject to the rigors of
cross-examination and the penalty of perjury. Because these
features of the judicial process tend to enhance the
reliability of information and the impartiality of the
decisionmaking process, there is a less pressing need for
individual suits to correct constitutional error.
Butz, 438 U.S. at 512, 98 S.Ct. at 2914 (footnote
omitted). Against this regulatory backdrop, the abandonment
of the absolute immunity in favor of qualified immunity is
unnecessary to achieve Venckus's stated policy
objectives. This is true without regard to the source of the
these reasons, we hold a government official is absolutely
immune from suit and damages with respect to any claim
arising out of the performance of any function intimately
related to the judicial phase of the criminal process whether
the claim arises at common law or under the state
address the application of the judicial process immunity to
the prosecutor defendants. The district court denied the
prosecutor defendants' motion to dismiss on two grounds.
First, with respect to the state constitutional claims, the
district court appeared to hold the prosecutor defendants
could assert only a qualified immunity rather than an
absolute immunity. Second, the district court held the claim
for abuse of process was not sufficiently developed and
directed "the defendants to raise their defenses as to
immunity again at an appropriate time when the actual facts
underlying these allegations are more fully known." With
one exception, which will be discussed below, we conclude the
district court erred in denying the prosecutor
defendants' motion to dismiss.
discussed in the preceding section, the judicial process
immunity applies to common law torts and state constitutional
torts, and the district court erred in holding to the
contrary. It is long-established the absolute immunity
applies to the conduct of prosecutors. In Blanton v.
Barrick, we held prosecutors are entitled to absolute
immunity related to the prosecution of criminal cases.
See 258 N.W.2d 306, 309 (Iowa 1977) ("Clearly,
as previously stated, prosecutors performing their official
duties are quasi-judicial officials, not non-judicial
functionaries and should be able to vigorously proceed with
their tasks unhampered by the fear of unlimited civil
litigation."). In subsequent cases, we adopted and
applied a functional approach to conclude prosecutors are
entitled to absolute immunity for activities "intimately
associated with the judicial phase of the criminal
process." Hike v. Hall, 427 N.W.2d 158, 159
(Iowa 1988) (quoting Imbler, 424 U.S. at 430, 96
S.Ct. at 995).
district court also erred in concluding the claims against
the prosecutor defendants were not sufficiently clear to
resolve the prosecutor defendants' assertion of absolute
immunity. Venckus's primary complaint is the prosecutor
defendants continued a "reckless crusade" to
convict Venckus in the face of "overwhelming
evidence" of Venckus's innocence. Venckus argues the
prosecutors refused to drop the charges because they did not
want to admit they had charged an innocent man. However, the
decisions to initiate a case and continue prosecution are at
the core of the judicial process immunity. See
Imbler, 424 U.S. at 430-31, 96 S.Ct. at 995 (1976)
(finding "initiating a prosecution and . . . presenting
the State's case" were parts of the judicial process
and necessitated immunity); Beck, 685 N.W.2d at 643
("The decision to bring criminal charges is clearly
'intimately associated with the judicial phase of the
criminal process' . . . ." (quoting Hike,
427 N.W.2d at 159; and Burr, 286 N.W.2d at 396));
Hike, 427 N.W.2d at 160 (holding "a
prosecutor's use of his authority to drop or continue
pending criminal charges" was absolutely immune
regardless of whether the charges had a basis);
Blanton, 258 N.W.2d at 310 ("A public
prosecutor acting in his official capacity is absolutely
privileged to initiate, institute, or continue criminal
proceedings." (quoting Restatement (Second) of Torts
§ 656, at 414 (Am. Law Inst. 1977))). This is true
without regard to motive or intent. The "immunity
applies even when the [official] is accused of acting
maliciously and corruptly because as a matter of policy it is
in the public best interest that [officials] should exercise
their function without fear of consequences and with
independence." Blanton, 258 N.W.2d at 308;
accord Beck, 685 N.W.2d at 642 ("Because we
apply a functional analysis, immunity attaches even when the
prosecutor is alleged to have acted for improper
the remainder of Venckus's claims relate to the
prosecutor defendants' strategic and discretionary
decisions regarding the prosecution of the case. Venckus
challenges the prosecutors' decision to enter into a
lenient plea agreement with Markley in exchange for
Markley's testimony. Venckus challenges the
prosecutors' subsequent decision to not call Markley as a
witness despite the favorable plea agreement. Venckus
challenges the prosecutors' decision to "shop"
around for an expert witness to rebut Venckus's DNA
expert. And Venckus challenges the prosecutors'
evaluation of the alibi evidence presented.
this challenged conduct is actionable. Venckus admits all of
the prosecutor defendants' challenged conduct occurred
after the development of probable cause to arrest and charge
Venckus. See Buckley, 509 U.S. at 274 n.5, 113 S.Ct.
at 2616 n.5 ("The reason that lack of probable cause
allows us to deny absolute immunity to a state actor for the
former function (fabrication of evidence) is that there is no
common-law tradition of immunity for it, whether performed by
a police officer or prosecutor. The reason that we grant it
for the latter function (malicious prosecution) is that we
have found a common-law tradition of immunity for a
prosecutor's decision to bring an indictment, whether he
has probable cause or not."). The decision to offer a
plea bargain is necessarily a vital part of the judicial
phase of the criminal process. See Hike, 427 N.W.2d
at 160 (collecting cases for the proposition that a
prosecutor's actions in the plea bargain process are
absolutely immune). Similarly, "[t]he decision whether
to call or not to call a given witness clearly falls within
the scope of the immunity." Beck, 685 N.W.2d at
644 n.3; see Imbler, 424 U.S. at 426-27, 96 S.Ct. at
993 (stating absolute immunity insulates prosecutors from
liability for calling witnesses who falsely testify).
Likewise, the prosecutors' evaluation of the evidence is
immune from legal challenge. See Buckley, 509 U.S.
at 273-75, 274 n.5, 113 S.Ct. at 2615-17, 2616 n.5 (holding
that prosecutor would be entitled to only qualified immunity
for fabrication of evidence during the investigative phase
prior to the development of probable cause and stating
prosecutor's evaluation of evidence in trial is protected
by absolute immunity).
sole instance of alleged conduct falling outside the judicial
process immunity is Venckus's allegation the Johnson
County Attorney's Office filed an ethics complaint
against Venckus's attorney for conduct in a different
case solely to bully Venckus's attorney and distract him
from the defense of the case. The filing of an ethics
complaint against an attorney is not "intimately
associated with the judicial phase of the criminal
process." Beck, 685 N.W.2d at 645. For example,
in Beck we held a prosecutor was not entitled to
absolute immunity for writing letters to the police
department and the mayor regarding a case. Id. at
644-45. The prosecutor in Beck was performing an
"administrative function" and not acting in his
capacity as an advocate within the judicial process and thus
was not entitled to absolute immunity. Id.
Similarly, although the nature of the ethics complaint is not
in the record, the filing of the complaint was not within the
judicial phase of the criminal process. Claims related to
this allegation are not barred by the judicial process
the district court erred in part in denying the prosecutor
defendants' motion to dismiss. The judicial process
immunity applies to both common law and state constitutional
claims. The allegations in the petition against the
prosecutor defendants were sufficiently specific to apply the
judicial process immunity. The immunity bars all claims in
the petition against the individual prosecutors and the
county except for any claim relating to the ethics complaint
filed against Venckus's attorney because that conduct was
administrative in nature and not intimately associated with
the judicial phase of the criminal process.
police defendants also claim the district court erred in
denying their motion to dismiss. The police defendants
contend they are absolutely immune from suit. They also
contend all claims against them are barred by the relevant
statute of limitations. Finally, they claim Venckus's
state constitutional claims were disallowed because an
adequate nonconstitutional remedy existed under the IMTCA. We
address each contention in turn.
the prosecutor defendants, the police defendants contend the
judicial process immunity bars all claims asserted against
them. The district court denied the police defendants'
motion to dismiss on two grounds. With respect to the state
constitutional claims, the district court appeared to hold
that the judicial process immunity was not available and the
police defendants could only assert the qualified-immunity
defense set forth in Baldwin. With respect to the
common law claims for defamation, malicious prosecution, and
abuse of process, the district court held the claims were not
sufficiently developed. The court directed the police
defendants to raise their judicial-process-immunity defense
again when the facts were more fully known. For the reasons
set forth below, we conclude the district court erred in part
in denying the police defendants' motion to dismiss.
immunity extends to police officer functions falling within
the scope of the judicial process immunity, e.g., testifying
as an ordinary witness. Cf. Minor, 819 N.W.2d at 397
(stating a social worker functioning as an ordinary witness
is entitled to absolute immunity). As discussed above, this
is true whether the claims arise under common law or under
the state constitution. The district court erred in holding
we cannot conclude the district court erred in denying the
police defendants' motion to dismiss based on the
judicial process immunity. Unlike the claims against the
prosecutor defendants, the claims against the police
defendants are not well defined. This is evidenced by the
fact the parties spend much of their appellate briefing
arguing about the factual bases for the claims against the
police defendants. Moreover, the legal bases for the
constitutional claims are not at all developed. As the police
defendants noted in their motion to dismiss, "it is
unclear from Venckus's petition how Rich allegedly
violated his right to equal protection or right to a fair
trial and due process." At oral argument, Venckus's
counsel could not articulate the legal bases for some of the
state constitutional claims. While the failure to present a
coherent, cognizable cause of action might be cause to seek a
more specific statement or an independent ground to dismiss
Venckus's claim, those issues are not raised on appeal.
See Iowa R. Civ. P. 1.421(1)(f) (allowing
for preanswer motion to dismiss for "[f]ailure to state
a claim upon which any relief may be granted");
id. r. 1.433 ("A party may move for a more
specific statement of any matter not pleaded with sufficient
definiteness to enable the party to plead to it . . .
"[a] motion to dismiss a petition should only be granted
if there is no state of facts conceivable under which a
plaintiff might show a right of recovery." Kingsway
Cathedral v. Iowa Dep't of Transp., 711 N.W.2d 6, 7
(Iowa 2006). Here, the factual and legal bases for the claims
against the police defendants are so vague as to be
indeterminate-the immunity may or may not apply depending on
the factual and legal bases for the claims. We will not piece
through the petition and advance arguments the parties have
not made. "Judges are not like pigs, hunting for
[meritorious] truffles buried in [the record]."
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991) (per curiam). On the record presented, we believe an
appropriate application of the functional analysis prohibits
us from making a broad decision regarding the application of
the judicial process immunity to the claims against the
this reason, we affirm the district court's denial of the
motion to dismiss with respect to the police defendants'
argument regarding the judicial process immunity.
police defendants contend Venckus's claims are
time-barred by the IMTCA, Iowa Code chapter 670 (2018). Iowa
Code section 670.5 provides,
Except as provided in section 614.8, a person who claims
damages from any municipality or any officer, employee or
agent of a municipality for or on account of any wrongful
death, loss, or injury within the scope of section 670.2 or
section 670.8 or under common law shall commence an action
therefor within two years after the alleged wrongful death,
loss, or injury.
district court appears to have denied the police
defendants' limitations defense on the ground that
further development of the record is necessary to
meaningfully apply the limitations period. For the reasons
expressed below, we conclude the district court erred in
frequently referred to as a statute of limitations, section
670.5 is a statute of creation. We explained this distinction
in the seminal case of Montgomery v. Polk County:
Chapter [670 created a new right of action-one that was
not available at common law nor available elsewhere by
statutory authority, and therefore, while cases interpreting
other limitation statutes are helpful, they do not control
here. Truly chapter , and particularly the section which
we are interpreting here, section [670.5], might be called a
statute of creation, rather than a statute of limitation. The
statute creates a new liability and provides for methods of
enforcing the same, and by its terms fixes the time within
which action for recovery may be commenced. It being a
statute of creation, the commencement of the action
within the time the statute fixes is an indispensable
condition of the liability and of the action permitted.
The time element is an inherent element of the right so
created, and the limitation of the remedy is likewise a
limitation of the right.
278 N.W.2d 911, 914-15 (Iowa 1979) (en banc) (quoting
Sprung ex rel. Sprung v. Rasmussen, 180 N.W.2d 430,
433 (Iowa 1970)). With that understanding, we held the time
to file the action commenced upon the date of injury and not
the date of accrual. See id. at 916-17.
Montgomery was decided in 1979, we have repeatedly
held the IMTCA bars any claim not filed within the requisite
time period as measured from the date of injury rather than
date of accrual. See Rucker v. Humboldt Cmty. Sch.
Dist., 737 N.W.2d 292, 294 (Iowa 2007) ("[The
IMTCA's statute of limitations] requires a plaintiff to
file suit within two years from the date of injury.");
Callahan v. State, 464 N.W.2d 268, 270 (Iowa 1990)
(en banc) (holding the limitations period under the Iowa Tort
Claims Act commences from the date of accrual in contrast
with the IMTCA, which commences on the date of injury without
regard to when the claim accrues); Uchtorff v.
Dahlin, 363 N.W.2d 264, 266 (Iowa 1985) (en banc)
(refusing to overrule Montgomery because the time
period for commencing an action is governed by statute and
the statute provides the date of injury is the relevant
date); Orr v. City of Knoxville, 346 N.W.2d 507, 510
(Iowa 1984) (en banc) (adhering to rejection of the discovery
rule); Farnum ex rel. Farnum v. G.D. Searle &
Co., 339 N.W.2d 392, 396 (Iowa 1983) (en banc)
("The trial court in the present case predicted that,
upon reconsideration, a majority of this court would now vote
to overrule Montgomery and adopt the view of the
dissenters in that case. This prediction is incorrect. The
court adheres to the holding in Montgomery . . .
recently, in Doe v. New London Community School
District, we again held the limitations period in
section 670.5 commences on the date of injury. 848 N.W.2d
347, 353-54 (Iowa 2014). We explained, "[T]he IMTCA
contains no term like 'accrues' to give the statute
'elasticity' for the court to consider 'when a
cause of action 'accrues.'" Id. at 352
(quoting Montgomery, 278 N.W.2d at 914). We further
noted the legislature amended the statute
post-Montgomery and retained the date of injury as
the relevant date and there was thus no reason to reconsider
In sum, on several occasions, we have discussed the pre-2007
version of section 670.5 and said it did not incorporate a
common law discovery rule. We reached this conclusion based
upon the absence of language like "accrue" or
"accrual" in the IMTCA to suggest that something
other than the date of injury might be the starting point for
the statute of limitations. Especially given the further fact
that section 670.5 has now been legislatively rewritten, we
see no reason to disturb our longstanding precedent in this
Id. at 353-54 (citations omitted). One of the
practical consequences of Montgomery, as reaffirmed
in Doe, is that an action can be barred before the
accrual date if the action was not filed within two years of
the date of injury. See Farnum, 339 N.W.2d at 394,
396 (holding an action was barred by the limitations period
where the time period to commence the action had passed prior
to the accrual date).
does not contest the timeliness of his common law claims is
governed by section 670.5, but he does dispute whether his
state constitutional claims are governed by section 670.5.
With respect to his constitutional claims, Venckus contends
Iowa Code section 614.1(2) applies. That section provides for
a two-year statute of limitations. Iowa Code § 614.1(2).
However, that two-year limitations period commences on the
date of accrual rather than injury and is subject to the
discovery rule. See id. § 614.1. We disagree
with Venckus's contention.
arising under the state constitution are subject to the
IMTCA. Iowa Code section 670.2(1) provides a
"municipality is subject to liability for its torts and
those of its officers and employees." Iowa Code section
670.1(4) defines a "tort" as "every civil
wrong," including the "denial or impairment of any
right under any constitutional provision." Section
670.4(2) provides the statutory remedies shall be exclusive.
Our cases recognize the exclusivity of the IMTCA. See,
e.g., Rucker, 737 N.W.2d at 293 ("Iowa
Code chapter 670 is the exclusive remedy for torts against
municipalities and their employees."). Thus, the
limitations period set forth in section 670.5 applies here.
contends we should ignore the text of the statute because
application of the limitations period set forth in section
670.5 creates inconsistency in the law regarding the time to
file constitutional claims against the state and its
municipalities. Venckus notes constitutional claims against
the state must be asserted within two years of the date the
claim accrues, see Iowa Code § 669.13(1),
whereas, under section 670.5, a claim must be filed within
two years of the date of injury.
nonplussed regarding the distinction between the two
limitations periods. We have long recognized and upheld the
distinction between the two limitations periods. The
legislature has placed greater limitations on actions against
municipalities compared to actions against the state because
municipalities "operate under greater fiscal constraints
than the state does" and municipalities have special
problems with respect to formulating and implementing
budgets. Farnum, 339 N.W.2d at 397. More than
thirty-six years have passed since Farnum, and the
legislature has continued to distinguish between claims
against the state and municipalities. Venckus's purported
inconsistency is actually a legislative policy decision of
long standing. We see no reason to disturb the
that background, we apply the IMTCA to the claims presented.
We first consider whether the IMTCA bars Venckus's claim
for defamation. "To establish a prima facie case in a
defamat[ion] action, a plaintiff must show the defendant (1)
published a statement that was (2) defamatory (3) of and
concerning the plaintiff." Bierman v. Weier,
826 N.W.2d 436, 464 (Iowa 2013) (second alteration in
original) (quoting Taggart v. Drake Univ., 549
N.W.2d 796, 802 (Iowa 1996)). The date of injury for a
defamation claim is the date on which "the defendants
performed their last allegedly . . . defamatory act."
Crouse v. Iowa Orthopaedic Ctr., No. 03-1626, 2005
WL 1224577, at *4 (Iowa Ct. App. May 25, 2005). The only
statement attributable to the police defendants is the
statement made in conjunction with Venckus's arrest. The
petition was filed more than four years after that statement.
We thus conclude section 670.5 bars Venckus's defamation
respect to the remainder of Venckus's claims, we agree
with the district court that the record is not adequate to
evaluate the limitations defense. "A defendant may raise
the statute of limitations by a motion to dismiss if it is
obvious from the uncontroverted facts contained in the
petition that the applicable statute of limitations bars the
plaintiff's claim for relief." Turner v. Iowa
State Bank & Tr. Co. of Fairfield, 743 N.W.2d 1, 5
(Iowa 2007). Where the nature of the claim or the pertinent
factual allegations are unclear, further development of the
record may be necessary. See id. With the exception
of the defamation claim discussed above, the same
difficulties precluding resolution of the police
defendants' absolute-immunity argument preclude
resolution of their limitations defense-namely, the factual
and legal bases for the claims are underdeveloped. We thus
conclude the district court did not err in denying the motion
to dismiss with respect to the remainder of the claims.
police defendants argue Venckus's state constitutional
claims are not cognizable because the IMTCA allows for
adequate remedies. Specifically the police defendants contend
the IMTCA allows for jury trial, compensatory damages, and
punitive damages. The district court concluded the IMTCA did
not preempt Venckus's state constitutional claims.
conclude the district court did not err in denying the police
defendants' motion. The IMTCA "does not expand any
existing cause of action or create any new cause of action
against a municipality." Iowa Code § 670.4(3).
Instead, the Act allows people to assert claims against
municipalities, their officers, and their employees that
otherwise would have been barred by the doctrine of sovereign
immunity. See Thomas v. Gavin, 838 N.W.2d 518, 521
(Iowa 2013) (explaining the IMTCA abolished sovereign
immunity). The substance of any legal claim asserted under
the IMTCA must arise from some source-common law, statute, or
constitution-independent of the IMTCA. The mere existence of
the IMTCA itself does not provide any remedy that would
preclude the recognition of a state constitutional claim.
While there might be common law causes of action or statutory
causes of action that would provide a remedy sufficient to
warrant disallowance of the state constitutional claims,
those arguments are not advanced here. Further, as noted
above, the record with respect to Venckus's claims
against the police defendants is not sufficiently developed
to justify dismissal at this point.
these reasons, the district court did not err in denying the
police defendants' motion to dismiss on this ground.
the police defendants argue a claim for malicious prosecution
will not lie against the police defendants because (1) there
was probable cause to charge Venckus and (2) the prosecutors
had exclusive control of the case. The police defendants did
not directly present the issue to the district court, and the
district court did not directly rule on the issue. It is not
preserved for appellate review. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a
fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court
before we will decide them on appeal."). Given that the
issue was not directly presented to or decided by the
district court, prudence dictates further development of the
record. We need not address the issue further.
we conclude the district court erred in part in denying the
police defendants' motion to dismiss. The district court
erred in concluding Baldwin displaced the judicial
process immunity. The district court erred in denying the
police defendants' motion to dismiss Venckus's
defamation claim. The district court did not err in denying
the police defendants' motion to dismiss on the remaining
district court erred in part in denying the defendants'
respective motions to dismiss. We remand this matter for
further proceedings not inconsistent with this opinion. We
express no view on the merits or demerits of the claims,
immunities, defenses, or other issues to be litigated after
remand and upon development of the record.
IN PART, REVERSED IN PART, AND REMANDED.
Justice (concurring in part and dissenting in part).
being acquitted by a jury of a rape charge, Joshua Venckus
alleges that police and prosecutors recklessly ignored
evidence proving he was innocent, improperly engaged in
expert shopping after a state criminologist provided them
with an unfavorable opinion, filed an ethics complaint
against Venckus's attorney over an unrelated matter that
state authorities ultimately dismissed, threatened one of
Venckus's alibi witnesses if he did not change his
testimony, and offered the actual rapist a lenient plea deal
in order to obtain testimony against Venckus. Venckus claims
the defendants' actions and omissions amounted to
numerous violations of his rights under the Iowa
Constitution. He seeks to vindicate these constitutional
rights in an Iowa courtroom.
various defendants filed a motion to dismiss the complaint,
alleging a number of grounds including the claim that they
were absolutely immune from the claims brought by Venckus.
The district court granted the motion. On reconsideration,
the district court denied in entirety the defendants'
motions to dismiss. The defendants appealed.
question before us is whether Venckus is entitled to his day
in court or whether the doors of the courthouse are closed to
his claims. For the reasons expressed below, I conclude that
absolute immunity should not bar his claims. As a result, I
dissent from division III of the majority opinion.
Factual and Procedural Background.
petition filed by Venckus alleged the following facts.
Because we are reviewing a motion to dismiss, we accept the
facts as true. Albrecht v. Gen. Motors Corp., 648
N.W.2d 87, 89 (Iowa 2002).
February 2013, Venckus was visiting Chicago. While he was in
Chicago, his roommates in Iowa City had a party. A woman at
the party became intoxicated and slept on the couch. Other
partygoers made her comfortable and covered her with a
blanket retrieved from Venckus's bedroom.
named Ryan Markley was one of the attendees at the party.
After the party, Markley broke into the residence and
sexually assaulted the woman. The victim was able to escape
and sought help from a person in the alley by the back door
of the residence.
person assisting the victim saw one person at the back door
of the residence as the woman escaped. The police were
called. Police found Markley's wallet outside a window
well of the residence, Markley's handprint on the north
window used to enter the residence, and Markley's boot
imprint on a chair inside the window where entry was gained
to the basement of the residence.
interviewed the victim, Venckus's roommates, and Venckus
himself. All explained that Venckus was in Chicago at the
time of the crime. No one placed Venckus at the house during
Rich was principally responsible for the investigation.
Police initially focused on Markley as the perpetrator. The
results of DNA testing returned male profiles for two
persons, Markley and an unknown male. The profile of the
unknown male consisted of one sperm found in the victim's
cervix. The police obtained a DNA sample from Venckus and
found his DNA matched the sperm.
to his arrest, Venckus tried to prove his alibi. He gave
police his bank card and cell phone, and offered to provide
contact information for people who could attest that he was
in Chicago. The defendants pressed forward despite
overwhelming evidence that Venckus was in Chicago at the time
of the assault.
January 2014, eleven months after the sexual assault, police
charged both Venckus and Markley for the sexual assault.
Prior to the filing of criminal charges, Venckus did not know
Markley. Venckus pled an alibi defense. Johnson County
prosecutors Anne ...