Gregory Baldwin v. City of Estherville, Iowa , 929 N.W.2d 691 ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 18–1856
Filed June 14, 2019
GREGORY BALDWIN,
Appellant,
vs.
CITY OF ESTHERVILLE, IOWA,
Appellee.
Certified questions of law from the United States District Court for
the Northern District of Iowa, Mark W. Bennett, United States District
Court Judge.
The United States District Court for the Northern District of Iowa
certifies six questions pursuant to Iowa Code § 684A.1 (2019).
CERTIFIED QUESTIONS ANSWERED.
Jack Bjornstad, Spirit Lake, for appellant.
Douglas L. Phillips and Zachary D. Clausen of Klass Law Firm, LLP,
Sioux City, for appellee.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, and Julia S. Kim, Assistant Attorney General, for amicus curiae
State of Iowa.
2
Katie Ervin Carlson and Emily McCarty of Timmer & Judkins,
P.L.L.C., West Des Moines, and Joel E. Fenton of Law Offices of Joel E.
Fenton, PLC, Des Moines, for amicus curiae Iowa Association for Justice.
Jason C. Palmer, Thomas M. Boes, Catherine M. Lucas, and
Benjamin R. Erickson, Des Moines, for amicus curiae Iowa Communities
Assurance Pool.
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WIGGINS, Justice.
The United States District Court for the Northern District of Iowa
certifies six questions pursuant to Iowa Code section 684A.1 (2019). In
our discretion, we answer five of the questions because they meet the
criteria of section 684A.1. We do not answer one of the questions because
it does not meet the criteria of section 684A.1.
I. Facts Provided to Answer Certified Questions.
“When we answer a certified question, we rely upon the facts
provided with the certified question.” Baldwin v. City of Estherville
(Baldwin II), 915 N.W.2d 259, 261 (Iowa 2018); accord Life Inv’rs Ins. Co.
of Am. v. Estate of Corrado, 838 N.W.2d 640, 644 (Iowa 2013) (“[W]e restrict
our answer to the facts provided by the certifying court when answering a
certified question.”). The facts as set forth by the federal court are as
follows:
The factual background to this case is set out in
considerable detail in [the federal court’s] prior ruling on
cross-motions for summary judgment, see Baldwin v.
Estherville, Iowa [(Baldwin I)], 218 F. Supp. 3d 987, 989–93
(N.D. Iowa 2016), then by the Iowa Supreme Court in
Baldwin [II], 915 N.W.2d 259, 261–65 (Iowa 2018). For
present purposes, suffice it to say that, on November 10,
2013, Officers Reineke and Hellickson, of the Estherville City
Police, were shown a video by a resident in the Estherville area
of a person the officers identified as plaintiff Gregory Baldwin
riding a 4-wheeler ATV that proceeded along North 4th Street
and turned into a ditch, using the north Joe Hoye Park
entrance, after which it continued in the ditch until it reached
West 14th Avenue North, where it returned to the roadway.
The officers then reviewed IOWA CODE CH. 321I [(2014)],
which, inter alia, permitted operation of ATVs only on streets
designated by cities, see IOWA CODE § 321I.10(3), because the
officers believed that Chapter 321I had been incorporated by
reference into the City’s Code of Ordinances when Chapter
321 was incorporated. They also consulted The Handbook of
Iowa All–Terrain Vehicle and Off–Highway Motorcycle
Regulations (Handbook), which the defendants contended is a
handbook frequently relied upon by police officers when
determining whether off-road vehicles are operating in
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compliance with applicable laws. Finally, they discussed the
matter with the City’s police chief and a police captain. They
concluded that the activity shown in the video amounted to a
violation of City Ordinance E-321I.10. However, that
Ordinance was not valid or in effect at the time, because it did
not exist.
Officer Reineke prepared a citation and attempted to
serve it on Baldwin at his home, but he was not there. Officer
Reineke then refiled the citation with the notation “Request
Warrant.” On November 12, 2013, a state magistrate entered
an order directing that a warrant issue. On November 13,
2013, Officer Hellickson served the warrant on Baldwin and
took him to jail. Baldwin’s wife posted bond, and Baldwin
later pleaded not guilty to the charge.
In the days that followed, the City Attorney discovered
that the City had not included IOWA CODE CH. 321I when it
incorporated IOWA CODE CH. 321 into the City’s Code of
Ordinances. The City Attorney was granted leave to amend
the charge to allege a violation of a different ordinance, City
Ordinance 219–2(2). City Ordinance 219–2 generally permits
ATVs to be operated on City streets except where prohibited,
but subsection (2) prohibits operation of ATVs “in city parks,
playgrounds, or upon any publicly-owned property.” On
Baldwin’s Motion For Adjudication Of Law Points And To
Dismiss, the Iowa District Court found that the cited act was
not a violation of the City’s Code of Ordinances as written and
dismissed the case. The state court did so only after making
two key constructions of pertinent City Ordinances: (1) that
the plain meaning of “street” in City Ordinances included the
“ditch,” and (2) that “publicly-owned property” in City
Ordinance 219–2(2), to the extent that it conflicted with
another ordinance defining “street,” did not include the “ditch”
of a City street. See Baldwin [I], 218 F. Supp. 3d at 1000–
1001.
Baldwin v. Estherville (Baldwin III), 333 F. Supp. 3d 817, 823–24 (N.D.
Iowa 2018); see Baldwin v. Estherville (Baldwin IV), 336 F. Supp. 3d 948,
950 (N.D. Iowa 2018) (order certifying questions) (incorporating by
reference the factual statements made in Baldwin I, 218 F. Supp. 3d at
989–93, Baldwin II, 915 N.W.2d at 261–65, and Baldwin III, 333
F. Supp. 3d at 822–24). We will refer to the City of Estherville as the “City”
in this opinion.
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II. Questions Certified by the Federal Court.
In Baldwin II, we answered a certified question from the federal court
involving qualified immunity. 915 N.W.2d at 260–61, 281. There we said,
Constitutional torts are torts, not generally strict liability
cases. Accordingly, with respect to a damage claim under
article I, sections 1 and 8 [of the Iowa Constitution], a
government official whose conduct is being challenged will not
be subject to damages liability if she or he pleads and proves
as an affirmative defense that she or he exercised all due care
to conform to the requirements of the law.
Id. at 281.
It is not clear whether Baldwin II addressed whether qualified
immunity is available to government employers. See id.; id. at 281–83
(Appel, J., dissenting); see also Baldwin III, 333 F. Supp. 3d at 831–32.
Because the only defendant in this case is a municipality, the federal court
has asked additional certified questions. On October 2, the federal court
issued an order certifying the following six questions to this court:
1. Can the City assert qualified immunity to a claim for
damages for violation of the Iowa Constitution based on its
officers’ exercise of “all due care”?
2. If the City can assert such a defense, on the facts
presented in this case, does the City have “all due care”
qualified immunity to liability for damages for the violation of
Baldwin’s right to be free from an unreasonable search and
seizure under article I of the Iowa Constitution? This question
necessarily includes questions about the extent to which
reliance on a warrant may satisfy the “all due care” standard
and whether the “all due care” analysis considers alternative
bases for probable cause or a warrant on which the officers
did not rely.
3. If punitive damages are an available remedy against
an individual defendant for a violation of a plaintiff’s rights
under the Iowa Constitution, can punitive damages be
awarded against a municipality that employed the individual
defendant and, if so, under what standard?
4. If punitive damages are available in answer to the
previous question, would a reasonable jury be able to find that
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the applicable standard was met on the facts presented in this
case?
5. If an award of attorney’s fees would have been
available against an individual defendant for a plaintiff who
attains some degree of success on a claim of a violation of a
plaintiff’s rights under the Iowa Constitution, would they be
available against a municipality that employed the individual
defendant and, if so, under what standard?
6. If the answer to either Question No. 3 or Question
No. 5 (or both) is in the affirmative, will retroactive application
to the pending case be appropriate?
Baldwin IV, 336 F. Supp. 3d at 958–59.
III. Standard of Review and Criteria for Answering Certified
Questions.
The statutory provision authorizing us to answer a certified question
provides,
The supreme court may answer questions of law
certified to it by . . . a United States district court . . . , when
requested by the certifying court, if there are involved in a
proceeding before it questions of law of this state which may
be determinative of the cause then pending in the certifying
court and as to which it appears to the certifying court there
is no controlling precedent in the decisions of the appellate
courts of this state.
Iowa Code § 684A.1 (2019). Thus, the Code gives us the discretion to
answer a certified question if four conditions are met:
(1) a proper court certified the question, (2) the question
involves a matter of Iowa law, (3) the question “may be
determinative of the cause . . . pending in the certifying court,”
and (4) it appears to the certifying court that there is no
controlling Iowa precedent.
Life Inv’rs Ins. Co. of Am., 838 N.W.2d at 643 (alteration in original)
(quoting Iowa Code § 648A.1 (2013)).
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IV. Certified Question Number 1: A Municipality’s Ability to
Assert Qualified Immunity Based on Its Officers’ Exercise of “All Due
Care.”
The first certified question from the federal district court is “Can the
City assert qualified immunity to a claim for damages for violation of the
Iowa Constitution based on its officers’ exercise of ‘all due care’?”
Baldwin IV, 336 F. Supp. 3d at 958. This question essentially asks
whether a municipality can be “vicariously immune” from liability for its
employees’ constitutional torts when the employees would be immune
from personal liability. The question does not ask whether a municipality
is immune for its own acts.
Baldwin bases his suit against the City on a constitutional tort and
the doctrine of respondeat superior. We recognized that a direct cause of
action for damages resulting from an Iowa constitutional tort could be
brought against the state and state officials in their official capacities in
the recent case of Godfrey v. State. 898 N.W.2d 844, 847 (Iowa 2017).
Before answering the first certified question, we must determine whether
the Iowa Municipal Tort Claims Act (IMTCA) applies to a Godfrey action
brought against the municipal employer of the constitutional tortfeasor. 1
A Godfrey action is the state counterpart to a Bivens action. See id.
A Bivens action is a claim brought in federal court against a federal agent
to recover damages from the agent’s commission of a Federal
constitutional tort. See Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005 (1971). The
creation of a Bivens action by the United States Supreme Court and our
1In his petition, which was filed before our decision in Godfrey, Baldwin stated
that his suit challenging the violation of his constitutional rights was brought under the
Iowa Constitution and that his causes of action regarding the violation of his Iowa
constitutional rights were brought pursuant to Iowa Code chapter 670, the IMTCA.
However, in his court filings subsequent to our Godfrey decision, Baldwin only contends
his Iowa constitutional claims were brought directly under the Iowa Constitution.
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creation of a Godfrey action are consistent with section 874A of the
Restatement (Second) of Torts. Section 874A provides,
When a legislative provision 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 a suitable existing tort action or a new cause of
action analogous to an existing tort action.
Restatement (Second) of Torts § 874A, at 301 (Am. Law Inst. 1979); see id.
§ 874A cmt. a, at 301 (noting “legislative provision” includes constitutional
provisions).
Illustration 1 under comment f to section 874A states, “The Fourth
Amendment to the United States Constitution prohibits unreasonable
searches and seizures. The court may grant a federal civil remedy in the
nature of trespass against a federal officer who makes an unreasonable
search of the plaintiff’s home.” Id. § 874A cmt. f, illus. 1, at 305. The
authors of the Restatement took this illustration from Bivens. Id. § 874A
Reporter’s Note cmt. f, app. at 105.
Comment f further provides,
Relationship to other torts. If, in a particular case, the court
determines that it is appropriate to provide a civil action in
order to effectuate the policy behind a legislative provision,
that civil action will normally sound in tort. A tort action is
the form of civil relief that grants damages or injunctive relief
for harm wrongfully inflicted upon or threatened to an interest
of the injured party. The cause of action will ordinarily be
assimilated to the most similar common law tort. Common
law torts were created by the courts, and they are still subject
to being modified by the courts. If a legislative provision
indicates the existence of a significant public policy within the
jurisdiction, the courts, in furtherance of that policy, may
judicially make modifications in the elements of a common
law tort. Sometimes the judicial modification of an
established tort comes in regard to the defenses applicable to
it. A legislative policy against immunity for a certain type of
defendant or against barring a criminal prosecution because
9
of consent of a certain type of plaintiff, for example, may be
the occasion for the court to change the scope or availability
of the defense in a tort action.
Id. § 874A cmt. f, at 304–05 (citation omitted).
The United States Supreme Court applied these principles when it
determined the Federal Tort Claims Act (FTCA) did not preempt a Bivens
action even though the underlying facts of the case could also support a
claim against the federal government under the FTCA. Carlson v. Green,
446 U.S. 14, 18–19, 100 S. Ct. 1468, 1471–72 (1980). The Court
acknowledged that a Bivens action may be defeated when the defendant–
federal official shows “that Congress has provided an alternative remedy
which it explicitly declared to be a substitute for recovery directly under
the Constitution and viewed as equally effective.” Id. at 18–19, 100 S. Ct.
at 1471. It found Congress did not intend to make the FTCA the exclusive
remedy for federal actors’ constitutional torts. Id. at 19–20, 100 S. Ct. at
1472. We cannot say the same for the IMTCA.
The Iowa legislature enacted the IMTCA in 1967. 1967 Iowa Acts
ch. 405 (codified at Iowa Code ch. 613A (1971)). The IMTCA imposed
liability on municipalities for their own and their employees’ torts:
Except as otherwise provided in this Act, every municipality is
subject to liability for its torts and those of its officers,
employees, and agents acting within the scope of their
employment or duties, whether arising out of a governmental
or proprietary function.
Id. § 2 (codified at Iowa Code § 613A.2). 2 It originally defined tort as “every
civil wrong which results in wrongful death or injury to person or injury to
property and includes but is not restricted to actions based upon
2This provision is currently codified at Iowa Code section 670.2(1) (2019) and is
substantially the same as when enacted except the word agents has been removed.
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negligence, breach of duty, and nuisance.” Id. § 1 (codified at Iowa Code
§ 613A.1(3)).
In 1974, the legislature amended section 613A.1. 1974 Iowa Acts
ch. 1263, §§ 1–2 (codified at Iowa Code § 613A.1(3) (1975)). In doing so,
the legislature expanded the definition of tort to include violations of
constitutional provisions. Id. § 2. The new language, which is the same
as in the current Code, states,
“Tort” means every civil wrong which results in wrongful death
or injury to person or injury to property or injury to personal
or property rights and includes but is not restricted to actions
based upon negligence; error or omission; nuisance; breach of
duty, whether statutory or other duty or denial or impairment
of any right under any constitutional provision, statute or rule
of law.
Iowa Code § 670.1(4) (2019) (emphasis added).
The IMTCA expressly dictates immunities for defendant
municipalities. Iowa Code § 670.4(1); see Jahnke v. Inc. City of Des Moines,
191 N.W.2d 780, 782 (Iowa 1971) (noting the IMTCA eliminated any
common law immunities in tort previously given to municipalities). In
relevant part, the IMTCA immunizes municipalities against “[a]ny claim
based upon an act or omission of an officer or employee of the
municipality, exercising due care, in the execution of a statute, ordinance,
or regulation whether the statute, ordinance or regulation is valid.” Iowa
Code § 670.4(1)(c). If the officers exercised due care in executing an
ordinance, the City would be immune pursuant to section 670.4(1)(c).
Therefore, the answer to certified question number 1 is that the due
care exemption under section 670.4(1)(c) could provide the City immunity.
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V. Certified Question Number 2: If a Municipality Can Assert
Qualified Immunity Based on Its Officers’ Exercise of “All Due Care,”
the City’s Ability to Do So Under the Facts of This Case.
The second certified question from the federal district court is
If the City can assert such a defense [(i.e., qualified immunity
based on its officers’ exercise of “all due care”)], on the facts
presented in this case, does the City have “all due care”
qualified immunity to liability for damages for the violation of
Baldwin’s right to be free from an unreasonable search and
seizure under article I of the Iowa Constitution? This question
necessarily includes questions about the extent to which
reliance on a warrant may satisfy the “all due care” standard
and whether the “all due care” analysis considers alternative
bases for probable cause or a warrant on which the officers
did not rely.
Baldwin IV, 336 F. Supp. 3d at 958.
Under Iowa law, we have the discretion to answer a certified question
if the question complies with the requirements of section 684A.1. One of
the requirements under section 684A.1 is that the question involves a
matter of law. Life Inv’rs Ins. Co. of Am., 838 N.W.2d at 643. This question
as posed requires us to apply the facts of this case to the answer to certified
question number 1. Therefore, we decline to answer certified question
number 2.
VI. Certified Question Number 3: Award of Punitive Damages
Against the Municipal Employer of the Constitutional Tortfeasor.
The third certified question from the federal district court is
If punitive damages are an available remedy against an
individual defendant for a violation of a plaintiff’s rights under
the Iowa Constitution, can punitive damages be awarded
against a municipality that employed the individual defendant
and, if so, under what standard?
Baldwin IV, 336 F. Supp. 3d at 958.
We have decided the IMTCA applies to Baldwin’s Iowa constitutional
tort causes of action. When the legislature enacted the IMTCA, it did not
expressly prohibit a punitive damage award against a municipality. See
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1967 Iowa Acts ch. 405. In 1978, we concluded the IMTCA did not prohibit
punitive damages against the municipality that was sued for its police
officers’ commission of the common law tort of false arrest. Young v. City
of Des Moines, 262 N.W.2d 612, 614, 622 (Iowa 1978) (en banc),
superseded by statute, 1982 Iowa Acts ch. 1018, § 5 (codified at Iowa Code
§ 613A.4(5) (1983) (now § 670.4(1)(e))), as recognized in Parks v. City of
Marshalltown, 440 N.W.2d 377, 379 (Iowa 1989). In response to Young,
the legislature amended the IMTCA to exempt municipalities from punitive
damages liability. Parks, 440 N.W.2d at 379; see S.F. 474, 69th G.A., 1st
Sess., Explanation (Iowa 1981).
Therefore, the answer to certified question number 3 is that section
670.4(1)(e) precludes an award of punitive damages against the
municipality that employed the constitutional tortfeasor.
VII. Certified Question Number 4: Punitive Damages Under the
Facts of This Case.
The fourth certified question from the federal district court is “If
punitive damages are available in answer to the previous question, would
a reasonable jury be able to find that the applicable standard was met on
the facts presented in this case?” Baldwin IV, 336 F. Supp. 3d at 958.
Because we hold no punitive damages are available against the municipal
employer of the constitutional tortfeasor under the IMTCA, we need not
answer this question.
VIII. Certified Question Number 5: Award of Attorney Fees
Against the Municipal Employer of the Constitutional Tortfeasor.
The fifth certified question from the federal district court is
If an award of attorney’s fees would have been available
against an individual defendant for a plaintiff who attains
some degree of success on a claim of a violation of a plaintiff’s
rights under the Iowa Constitution, would they be available
13
against a municipality that employed the individual defendant
and, if so, under what standard?
Id. at 958–59.
Ordinarily, under the American rule each party is responsible for
their own attorney fees and costs. De Stefano v. Apts. Downtown, Inc., 879
N.W.2d 155, 168 (Iowa 2016). There are exceptions to the rule. One of
these exceptions shifts the attorney fees of the victor to the losing party if
there is an express statutory authorization to do so. See Lee v. State, 906
N.W.2d 186, 197 (Iowa 2018). Another exception is an award of common
law attorney fees under very limited circumstances. Williams v. Van Sickel,
659 N.W.2d 572, 579 (Iowa 2003). In following the guidance of the
Restatement (Second) of Torts, these are the only two situations where
attorney fees can be shifted to the losing party in a Godfrey action. See
Restatement (Second) of Torts § 914(1) & cmt. a, at 492 (noting exceptions
to American rule on attorney fees).
In a Godfrey claim, like in a Bivens claim, there is no express
statutory authorization for attorney fees. Cf., e.g., Alexander A. Reinert,
Measuring the Success of Bivens Litigation and Its Consequences for the
Individual Liability Model, 62 Stan. L. Rev. 809, 811 n.6 (2010) (citing
Kreines v. United States, 33 F.3d 1105 (9th Cir. 1994)) (noting there is no
statutory provision that allows for attorney fees in a Bivens claim, unlike
42 U.S.C. § 1988, which allows for attorney fees in a § 1983 claim).
Baldwin contends that 42 U.S.C. § 1988, Iowa Code section 669.15, and
Iowa Code chapter 216 authorize attorney fees to the prevailing plaintiff in
a Godfrey claim against a municipality. This position is untenable because
none of those provisions extend to his cause of action.
Section 1988 allows attorney fees
[i]n any action or proceeding to enforce a provision of sections
1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX
14
of Public Law 92-318, the Religious Freedom Restoration Act
of 1993, the Religious Land Use and Institutionalized Persons
Act of 2000, title VI of the Civil Rights Act of 1964, or section
12361 of Title 34.
42 U.S.C. § 1988(b) (2012). Neither a generic Godfrey action brought
against a municipality nor Baldwin’s particular claim against the City is
one of those.
Iowa Code section 669.15 is found in chapter 669, the Iowa Tort
Claims Act. The Iowa Tort Claims Act does not cover suits against
municipalities. Iowa Code § 669.2(3) (2019). Therefore, section 669.15
does not apply to either a generic Godfrey claim brought against a
municipality or Baldwin’s particular claim against the City.
Finally, Iowa Code section 216.15(9)(a)(8) allows the civil rights
commission to order payment of attorney fees if it determines the
defendant engaged in discriminatory or unfair practices. This is not a civil
rights case under chapter 216. Thus, we do not find an express statutory
provision for attorney fees.
But there is also a rare exception to the American rule on attorney
fees “when the losing party has acted in bad faith, vexatiously, wantonly,
or for oppressive reasons.” Remer v. Bd. of Med. Exam’rs, 576 N.W.2d 598,
603 (Iowa 1998) (en banc) (quoting Hockenberg Equip. Co. v. Hockenberg’s
Equip. & Supply Co. of Des Moines, Inc., 510 N.W.2d 153, 158 (Iowa 1993));
accord Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258–
59, 95 S. Ct. 1612, 1622 (1975). Under those circumstances, a court may
award attorney fees. Id. It will be up to the trial court to determine if
Baldwin can meet the common law standard. See Hockenberg Equip. Co.,
510 N.W.2d at 159.
Therefore, the answer to certified question number 5 is that in a
Godfrey action, a court cannot award attorney fees against the municipal
15
employer of the constitutional tortfeasor unless there is a statute expressly
allowing such an award. We find none here. As for the common law rule
regarding awarding attorney fees to the victorious party, it will be up to
the trial court to determine if Baldwin has met the common law standard.
See id. at 159–60 (setting forth standard for common law attorney fees).
IX. Certified Question Number 6: Retroactive Application of
Answers to Certified Questions on Punitive Damages and Attorney
Fees.
The sixth certified question from the federal district court is “If the
answer to either Question No. 3 or Question No. 5 (or both) is in the
affirmative, will retroactive application to the pending case be
appropriate?” Baldwin IV, 336 F. Supp. 3d at 959.
Because we conclude the IMTCA prohibits an award of punitive
damages against the municipal employer of the constitutional tortfeasor,
we need not answer this question with respect to punitive damages.
However, because we conclude common law attorney fees may be available
in a Godfrey action against the municipal employer of the constitutional
tortfeasor, we will proceed to answer this question with respect to common
law attorney fees.
The City cites Beeck v. S.R. Smith Co., 359 N.W.2d 482 (Iowa 1984),
for the proposition that if we conclude attorney fees may be awarded
against the municipal employer, that conclusion should not apply
retroactively. Beeck involved a certified question from a federal court
asking whether a minor’s newly established cause of action for loss of
parental consortium should be given retroactive effect. Id. at 484. The
case did not involve a question of whether the availability of attorney fees
in a cause of action should be given retroactive effect.
16
However, even if we apply the Beeck test, the possibility of common
law attorney fees is available to Baldwin. In Beeck, we adopted a three-
factor test for determining retroactivity of a cause of action. Id. The test
we enumerated was,
First, the decision to be applied nonretroactively must
establish a new principle of law, either by overruling clear past
precedent on which litigants may have relied or by deciding
an issue of first impression whose resolution was not clearly
foreshadowed. Second, it has been stressed that “we must
. . . weigh the merits and demerits in each case by looking to
the prior history of the rule in question, its purpose and effect,
and whether retrospective operation will further or retard its
operation.” Finally, we have weighed the inequity imposed by
retroactive application, for “[w]here a decision of this Court
could produce substantial inequitable results if applied
retroactively, there is ample basis in our cases for avoiding the
‘injustice or hardship’ by a holding of nonretroactivity.”
Id. (alterations in original) (citations omitted) (quoting Chevron Oil Co. v.
Hudson, 404 U.S. 97, 106–07, 92 S. Ct. 349, 355 (1971), abrogated in part
by Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 96–97, 113 S. Ct. 2510,
2517 (1993)).
We have allowed common law attorney fees in tort actions for over
100 years. E.g., Dorris v. Miller, 105 Iowa 564, 568, 75 N.W. 482, 483
(1898) (holding if the defendant’s acts are “tainted by fraud, malice, or
insult,” the jury may award punitive damages and, in so doing, may
include attorney fees in its award (quoting Theodore Sedgwick, A Treatise
on the Measure of Damages 105 (Arthur G. Sedgwick ed., New York, Baker,
Voorhis & Co., 5th ed. 1869), https://babel.hathitrust.org/cgi/
pt?id=uc2.ark:/13960/t0cv4mr8h;view=1up;seq=7 [https://hdl.handle.
net/2027/uc2.ark:/13960/t0cv4mr8h])), superseded by statute, 1986
Iowa Acts ch. 1211, § 42 (codified as amended at Iowa Code § 668A.1), as
recognized in Hockenberg Equip. Co., 510 N.W.2d at 159.
17
Application of the Beeck factors reveals fairness does not require
only prospective application of our conclusion that in a Godfrey action,
common law attorney fees may be available against the municipal
employer of the constitutional tortfeasor. See 359 N.W.2d at 484. We are
not creating a new principle of law by allowing common law attorney fees.
Rather, we are applying time-honored tort principles. Common law
attorney fees are to compensate a party when the opposing side “acted in
bad faith, vexatiously, wantonly, or for oppressive reasons.” Remer, 576
N.W.2d at 603 (quoting Hockenberg Equip. Co., 510 N.W.2d at 158). We
see no reason not to allow common law attorney fees in this tort action.
Therefore, the answer to certified question number 6 is that it is
appropriate to retroactively apply our conclusion that in a Godfrey action,
common law attorney fees may be available against the municipal
employer of the constitutional tortfeasor. Thus, Baldwin can receive an
award of common law attorney fees in this action against the City if he can
meet the standard for common law attorney fees.
X. Disposition.
We answer the questions certified by the federal district court as
follows:
1. Can the City assert qualified immunity to a claim for
damages for violation of the Iowa Constitution based on its
officers’ exercise of “all due care”?
Answer: The due care exemption under section 670.4(1)(c) could
provide the City with immunity.
2. If the City can assert such a defense, on the facts
presented in this case, does the City have “all due care”
qualified immunity to liability for damages for the violation of
Baldwin’s right to be free from an unreasonable search and
seizure under article I of the Iowa Constitution? This question
necessarily includes questions about the extent to which
reliance on a warrant may satisfy the “all due care” standard
18
and whether the “all due care” analysis considers alternative
bases for probable cause or a warrant on which the officers
did not rely.
Answer: The question as posed requires us to apply the facts of this
case to the answer to certified question number 1. Therefore, we decline
to answer certified question number 2.
3. If punitive damages are an available remedy against
an individual defendant for a violation of a plaintiff’s rights
under the Iowa Constitution, can punitive damages be
awarded against a municipality that employed the individual
defendant and, if so, under what standard?
Answer: No. The punitive damages exemption under section
670.4(1)(e) precludes a plaintiff from collecting punitive damages from the
municipal employer of the constitutional tortfeasor.
4. If punitive damages are available in answer to the
previous question, would a reasonable jury be able to find that
the applicable standard was met on the facts presented in this
case?
Answer: Because we hold the IMTCA immunizes municipal
employers of constitutional tortfeasors against punitive damages, we need
not answer this question.
5. If an award of attorney’s fees would have been
available against an individual defendant for a plaintiff who
attains some degree of success on a claim of a violation of a
plaintiff’s rights under the Iowa Constitution, would they be
available against a municipality that employed the individual
defendant and, if so, under what standard?
Answer: In a Godfrey action, a court cannot award attorney fees
against the municipal employer of the constitutional tortfeasor unless
there is an express statute allowing for such an award or the prevailing
party satisfies the standard for common law attorney fees. We find no
express statutory authorization for attorney fees here. As for common law
19
attorney fees, it will be up to the trial court to determine if Baldwin has
met the common law standard.
6. If the answer to either Question No. 3 or Question
No. 5 (or both) is in the affirmative, will retroactive application
to the pending case be appropriate?
Answer: Because the IMTCA prohibits an award of punitive
damages against the municipal employer of the constitutional tortfeasor,
we need not answer this question with respect to punitive damages. With
respect to common law attorney fees, we answer that it is appropriate to
retroactively apply our conclusion that in a Godfrey action, common law
attorney fees may be available against the municipal employer of the
constitutional tortfeasor. Thus, Baldwin can receive an award of common
law attorney fees in this action against the City if he can meet the standard
for common law attorney fees.
CERTIFIED QUESTIONS ANSWERED.
All justices concur except Appel, J., who concurs in part and
dissents in part.
20
#18–1856, Baldwin v. City of Estherville
APPEL, Justice (concurring in part and dissenting in part).
I. Introduction.
In Baldwin v. City of Estherville (Baldwin II), 915 N.W.2d 259, 281
(Iowa 2018), the majority of this court decided that a government official
could assert a modified qualified immunity defense to a state
constitutional tort under article I, sections 1 and 8 of the Iowa
Constitution. For reasons expressed in my dissenting opinion in Baldwin
II, I was unable to join the majority opinion. Id. (Appel, J., dissenting). I
continue to believe there is no immunity available to shield individual state
officers from liability for alleged harm caused by their unconstitutional
conduct in violation of article I, sections 1 and 8 of the Iowa Constitution.
Id.
On the issues raised in this case, 3 I dissent in part from the
majority’s holding regarding the potential liability of the city. I agree that
the city may be held liable for state constitutional torts under a respondeat
superior theory. But I do not believe the government entity is entitled to
assert a defense of qualified immunity. As expressed in Baldwin II, I do
not believe that officers and agents are entitled to qualified immunity, and
as a result, such a defense does not pass through to the governmental
entity under respondeat superior. Further, even if the individual officers
and agents of the government are entitled to quasi-immunity, it should not
extend to claims against a municipal entity under respondeat superior.
On the question of punitive damages, I dissent from the majority. In
a search and seizure case, for reasons I explain below, it is critical that
3I agree with the majority to limit our answers to questions of law posed in the
certified questions presented by the federal district court.
21
punitive damages be available against a government entity in a proper case
in order to provide an adequate remedy to the state constitutional tort.
On the question of attorney fees, I agree with the majority that
attorney fees may be available under the bad faith theory we have long
recognized at common law. But I also believe that attorney fees, in an
appropriate case, may be available under what has been called the private
attorney general theory.
II. Overview of State Constitutional Torts.
At the outset, it is important to understand exactly what a state
constitutional tort is. A state constitutional tort is a claim that may be
brought by a person for harms by government authorities arising from a
violation of a rights-creating provision of the Iowa Constitution. Godfrey
v. State, 898 N.W.2d 844, 847 (Iowa 2017). The claim is implied in the
substantive provisions of the Iowa Bill of Rights contained in article I of
the Iowa Constitution. See id. at 868. It is supported by the basic principle
that there is no right without a remedy. Id. at 867. A state constitutional
tort arises out of the provisions of the Iowa Bill of Rights and does not
require any enabling legislation by the legislature. Id. at 870.
Further, if unconstitutional conduct sufficient to support a state
constitutional tort is present, we must next determine whether
government defendants are entitled to immunities or affirmative defenses,
and if so, what the scope of those immunities or affirmative defenses might
be. In Baldwin II, for instance, a majority of this court determined that
government officials and agents who engage in certain unconstitutional
conduct that harms plaintiffs may assert a modified type of qualified
immunity. 915 N.W.2d at 281 (majority opinion).
The legislature may enact statutes that provide for reasonable
procedures for the assertion of state constitutional claims. Godfrey, 898
22
N.W.2d at 873. The legislature, however, cannot limit the substantive
scope of state constitutional violations. Id. at 866–69, 874–75.
Determining the scope of constitutional rights is the province of the
judiciary. Id. To the extent the legislature seeks to regulate remedies, it
cannot reduce them below a constitutionally required minimum necessary
to ensure adequate vindication of state constitutional interests. Id. at 876.
III. Liability of Municipalities for State Constitutional Torts of
Their Officers or Agents.
A. Introduction. The first question posed in this case is whether
and under what circumstances a municipality may be held liable for the
state constitutional torts of its officers or agents. In considering such
questions, at least two lines of cases are frequently examined which,
though not binding, may be instructive.
First, common law treatment of municipal liability prior to the
enactment of the constitution may be examined. An argument can be
made, for example, that the preconstitutional immunities available at
common law for claims against municipalities should apply to state
constitutional torts in the postconstitutional era. The common law
influence theory is based on the proposition that state constitutional
founders would have intended any preconstitutional immunities generally
available to municipalities when faced with tort claims would also would
apply to torts arising from state constitutional provisions.
Any analogy between common law and constitutional claims,
however, is at best inexact. A constitutional tort is designed not only to
provide compensation for injuries but also to vindicate constitutional
rights. Id. at 876–79 (plurality opinion); see Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 409, 91 S. Ct. 1999,
2011 (1971) (Harlan, J., concurring in the judgment). The high importance
23
of ensuring that the basic constitutional rights in the Iowa Bill of Rights
are recognized and enforced is wholly absent in ordinary tort litigation
against municipalities. Godfrey, 898 N.W.2d at 876–79. A constitutional
tort seeks to compensate for harms to the public as well as harms to
individuals arising from the unconstitutional conduct of government. Id.
Unlike common law claims, constitutional violations are often not
accompanied by physical injuries and the deterrence arising from
parsimonious compensation for them is often very weak. Michael Wells,
Constitutional Remedies, Section 1983 and the Common Law, 68 Miss. L.J.
157, 215 (1998). For these reasons, a constitutional tort is thus said to
be “a fundamentally different legal artifact from common law tort.” Id. at
159; see also Sheldon H. Nahmod, Section 1983 and the “Background” of
Tort Liability, 50 Ind. L.J. 5, 32–33 (1974) (“[C]ourts in 1983 cases must
be careful not to let tort law alone determine 1983 liability; for not only
possibly different purposes, but different interests as well are usually at
stake.”). We should be careful not to allow common law limitations to
impede the vindication of state constitutional rights.
Further, there is a certain amount of irony in the referral to common
law doctrine in determining the scope of recovery for constitutional harms
under 42 U.S.C. § 1983 (2017). Indeed, one of the reasons why § 1983
was passed was the inadequacy of common law remedies to protect
citizens from constitutional violations. Monroe v. Pape, 365 U.S. 167, 173–
74, 81 S. Ct. 473, 477 (1961), overruled on other grounds by Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035 (1978); see Note,
Damage Awards for Constitutional Torts: A Reconsideration After Carey v.
Piphus, 93 Harv. L. Rev. 966, 976 (1980).
Finally, the genius of the common law was its flexibility and its
ability to evolve to meet contemporary realities. Thus, the common law
24
method requires us not to adopt frozen concepts of the past but to study
them and adapt them, where appropriate, to the present. Nahmod, 50 Ind.
L.J. at 33. While the historical common law approach may inform us, it
cannot control the present.
The second approach to analyzing constitutional torts involves
examination of cases under the Civil Rights Act of 1871, codified at 42
U.S.C. § 1983. Section 1983 provides a statutory avenue for injured
parties to bring claims based on, among other things, violations of the
United States Constitution. Cases under § 1983 have considered the
scope of liability and potential immunities available to government actors
when constitutional violations arise.
In looking at the § 1983 cases for illumination in the context of state
constitutional torts, there are three important caveats. First, the cases
under § 1983 are statutory in nature and often turn on the specific
language and statutory history that is not germane to interpretation of a
state constitutional tort.
Second, and of great importance, a plaintiff in a § 1983 action seeks
to thrust federal courts into the operations of state and local governments.
As a result of federalism implications, the § 1983 cases of the United
States Supreme Court seek to minimize federal intervention in these local
matters. See Note, Developments in the Law: Section 1983 and Federalism,
90 Harv. L. Rev. 1133, 1179 (1977). The end result is a tendency in the
§ 1983 cases to underenforce federal constitutional rights. Thus, while
the § 1983 cases are worth a careful read, it must be understood that they
are substantially influenced by the diluting federalism concerns that have
no application at all when a state court considers the scope, defenses, or
remedies available to vindicate state constitutional claims.
25
Third, in recent years, the United States Supreme Court has adopted
a rights-restricting approach to many aspects of constitutional law. It has
utilized a wide host of fairly technical legal doctrines such as pleading
standards, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965 (2007), standing doctrine, City of Los Angeles v. Lyons, 461 U.S. 95,
105–06, 103 S. Ct. 1660, 1667 (1983) (denying injunction against police
chokeholds because plaintiff had only been injured once), and state-
leaning approaches to summary judgment, see, e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986), that tend to
materially lessen the scope of judicial remedies available for alleged
constitutional violations. For those who seek to avoid slippage between
constitutional norms and their enforcement, recent United States
Supreme court cases may have limited utility.
B. Common Law History of Municipal Liability. There are many
common law cases addressing the potential liability of municipalities in
tort that predate state or federal constitutions. The verdict of common law
history is clear: municipalities at common law were generally liable in tort
to the same extent as corporations or any other private parties.
Specifically, there were virtually no authorities suggesting, for instance,
that a municipality was entitled to some kind of good-faith immunity. See
Owen v. City of Independence, 445 U.S. 622, 641–42, 100 S. Ct. 1398,
1411 (1980) (citing cases).
The Iowa common law cases are consistent with the general rule.
See Cotes v. City of Davenport, 9 Iowa 227, 235 (1859) (stating it is well
established that a municipal corporation is liable in a negligence case to
the same extent as a private person). Thus, to the extent common law is
26
our guide, municipalities should not be entitled to quasi-immunity for
their state constitutional torts.
C. Approaches of United States Supreme Court Caselaw Under
42 U.S.C. § 1983. In a series of cases, the United States Supreme Court
has considered the scope of potential liability of municipalities under the
Civil Rights Act of 1871. 42 U.S.C. § 1983. In Monroe, 365 U.S. at 169,
81 S. Ct. at 474, petitioners alleged that thirteen police officers broke into
their home, made them stand naked in the living room, ransacked all the
rooms of the house, took them to the station for ten hours, interrogated
them, and then released them, all without a warrant. With respect to
individual defendants, the Monroe Court concluded that they acted under
color of law under § 1983 and, as a result, reversed lower court rulings to
the contrary. See id. at 187, 81 S. Ct. at 484. With respect to the City of
Chicago as defendant, however, the Monroe Court held that municipalities
were not “persons” under § 1983 and could not be held accountable under
the statute for inflicting state constitutional harms. Id. at 187–92, 81
S. Ct. at 484–86.
Seventeen years after Monroe, however, the Supreme Court reversed
course in Monnell, 436 U.S. at 690, 98 S. Ct. at 2035. In Monnell, female
employees of New York governmental entities challenged a policy that
“compelled pregnant employees to take unpaid leaves of absence before
such leaves were required for medical reasons.” Id. at 660–61, 98 S. Ct.
at 2020. The Monnell Court overruled Monroe in part and held that
municipalities were persons under § 1983. Id. at 690, 98 S. Ct. at 2035.
Further, the Monnell Court declared that municipalities could be held
liable under § 1983 when officials were executing “a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by
that body’s officers.” Id. at 690, 98 S. Ct. at 2035–36.
27
But the Monnell Court further held that Congress did not intend for
a municipality to be held liable “solely because it employs a tortfeasor—or,
in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Id. at 691, 98 S. Ct. at 2036. In reaching
this conclusion, the Monnell Court emphasized the word “causes” in the
statute. Id. at 692, 98 S. Ct. at 2036. The Monnell Court reasoned that in
order for the municipality to cause the constitutional infringement, there
must be a policy or practice giving rise to it. Id. at 694, 98 S. Ct. at 2037–
38. In the case presently before us, the city urges that we import the
Supreme Court’s statutory interpretation in Monnell into the substance of
our state constitutional law.
In Monnell, the Supreme Court expressly noted that the question of
whether local government bodies were entitled to some form of official
immunity was not presented in the case. Id. at 701, 98 S. Ct. at 2041.
While the Monnell Court made clear that absolute immunity would not be
appropriate, it took no view on any other form of immunity that might be
available. Id.
The Supreme Court addressed the question of whether a
municipality was entitled to some form of immunity in Owen, 445 U.S. at
635, 100 S. Ct. at 1407. In Owen, a former police chief brought an action
against the city, the city manager, and members of the city council alleging
he was terminated from employment without notice and an opportunity to
be heard. Id. at 630, 100 S. Ct. at 1404–05. The Owen Court rejected the
city’s assertion that it was entitled to qualified immunity. Id. at 638, 100
S. Ct. at 1409. The Owen Court noted the statute itself did not contain
any immunities. Id. at 635, 100 S. Ct. at 1407. Further, the Owen Court
canvassed the legislative history of the Civil Rights Act and found no
support for some form of municipal immunity. Id. at 635–38, 100 S. Ct.
28
at 1407–09. The Owen Court further reviewed caselaw, concluding that it
was generally understood that a municipality’s tort liability was identical
to private organizations and individuals. Id. at 639–50, 100 S. Ct. at 1409–
15.
The Owen Court proceeded to consider the public policy purposes of
recovery for constitutional wrongs. The Owen Court noted,
A damages remedy against the offending party is a vital
component of any scheme for vindicating cherished
constitutional guarantees, and the importance of assuring its
efficacy is only accentuated when the wrongdoer is the
institution that has been established to protect the very rights
it has transgressed.
Id. at 651, 100 S. Ct. at 1415.
The Owen Court noted, however, that individual defendants under
§ 1983 had been afforded qualified immunity. Id. at 651, 100 S. Ct. at
1415. Because of the presence of qualified immunity for individual
officers, the Owen Court noted that “victims of municipal malfeasance
would be left remediless if the city were also allowed to assert a good-faith
defense.” Id. The Owen Court emphasized that absent countervailing
considerations to the contrary, the injustice of a victim going without a
remedy “should not be tolerated.” Id.
The Owen Court found no countervailing considerations and
emphasized the need to deter future violations. Id. at 651, 100 S. Ct. at
1416. The Owen Court noted that potential liability “should create an
incentive for officials who may harbor doubts about the lawfulness of their
intended actions to err on the side of protecting citizens’ constitutional
rights.” Id. at 651–52, 100 S. Ct. at 1416. The Owen Court further
observed that “[i]t hardly seems unjust to require a municipal defendant
which has violated a citizen’s constitutional rights to compensate him for
the injury suffered thereby.” Id. at 654, 100 S. Ct. at 1417. Additionally,
29
the Owen Court cited a leading state court case for the proposition that
“the city, in its corporate capacity, should be liable to make good the
damage sustained by an [unlucky] individual.” Id. at 654–55, 100 S. Ct.
at 1417 (alteration in original) (quoting Thayer v. City of Boston, 36 Mass.
511, 515 (1837)).
Finally, the Owen Court noted that the purpose of qualified
immunity for individual officers “is the concern that the threat of personal
monetary liability will introduce an unwarranted and unconscionable
consideration into the decisionmaking process, thus paralyzing the
governing official’s decisiveness and distorting his judgment on matters of
public policy.” Id. at 655–56, 100 S. Ct. at 1418. The Owen Court
emphasized, however, that the inhibiting effect is significantly reduced
when municipal liability is involved. Id. at 656, 100 S. Ct. at 1418. The
Owen Court observed that it is questionable whether the possibility of
municipal liability will deter decision-makers from conscientious exercise
of public authority. Id. In any event, the Owen Court regarded deterrence
in positive terms, noting concerns that should shape decision-making
include the constitutional rights of persons affected by the action. Id.
The Supreme Court next considered the question of immunities in
City of Oklahoma City v. Tuttle, 471 U.S. 808, 810, 105 S. Ct. 2427, 2429
(1985). Here, a widow of a man shot by a police officer brought a § 1983
claim alleging that her husband had been killed without due process of
law as a result of a city providing inadequate training to police officers. Id.
at 811–12, 105 S. Ct. at 2430. The jury returned a verdict in favor of the
police officer but awarded $1,500,000 against the city. Id. at 813, 105
S. Ct. at 2431. The United States Court of Appeals for the Tenth Circuit
affirmed. Tuttle v. City of Oklahoma City, 728 F.2d 456, 461 (10th Cir.
1984).
30
The Tuttle Court reversed. 471 U.S. at 814, 105 S. Ct. at 2431. The
Tuttle Court emphasized that the plaintiff offered no evidence of a single
act by a municipal policymaker but only based her claim on a single
incident involving the use of excessive force and a subsequent inference
that the training of the officer must have been inadequate as a result of
city policy. Id. at 821, 105 S. Ct. at 2435. The Tuttle Court emphasized
that liability could not be imposed because the municipality hired one “bad
apple.” Id. The Tuttle Court declared that liability under Monnell cannot
be established without proof that the harm was “caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a
municipal policymaker.” Id. at 824, 105 S. Ct. at 2436.
Notably, Justice Stevens dissented. Id. at 834, 105 S. Ct. at 2441
(Stevens, J., dissenting). Justice Stevens emphasized that at the time
§ 1983 was enacted, the doctrine of respondeat superior was well
recognized in the common law. Id. at 835, 105 S. Ct. at 2442. Justice
Stevens further noted that § 1983 was designed primarily to provide a
remedy for constitutional violations, which he characterized as “wrongs of
the most serious kind.” Id. at 839, 105 S. Ct. at 2444. He pointed out
that the act of the individual officer could be considered unconstitutional
only if he was acting on behalf of the state. Id. Justice Stevens reasoned
that if an officer’s conduct was sufficient to satisfy state action
requirements, the municipality should be liable under ordinary principles
of tort law. Id. at 839–40, 105 S. Ct. at 2444–45.
In closing, Justice Stevens emphasized that respondeat superior
liability should apply with special force because of the special quality of
the interests at stake. Id. at 843, 105 S. Ct. at 2446. He argued that the
interests in compensating the victim, deterring violations by creating
sound municipal policy, and providing fair treatment toward individual
31
officers performing difficult and dangerous work all point toward placing
primary responsibility on the municipal corporation. Id. at 843–44, 105
S. Ct. at 2446–47.
The question of liability under § 1983 arose again in Pembaur v. City
of Cincinnati, 475 U.S. 469, 471, 106 S. Ct. 1292, 1294 (1986). In
Pembaur, a physician brought a § 1983 action after sheriff’s deputies
chopped down the door of his office with an axe in an attempt to serve
legal process on two of his employees. Id. at 473–74, 106 S. Ct. at 1295.
The district court dismissed the action and the Sixth Circuit affirmed in
part and reversed in part. Id. at 475, 106 S. Ct. at 1296.
In an opinion by Justice Brennan, the Pembaur Court held that the
county could be liable under § 1983 under the facts presented. Id. at 484,
106 S. Ct. at 1300. In Pembaur, the decision to forcibly enter the
physician’s office was made in consultation with the county prosecutor.
Id. The Pembaur Court noted a single decision made by an authorized
municipal policymaker may amount to a policy under Monnell. Id. at 480,
106 S. Ct. at 1298. According to the Pembaur Court, liability under § 1983
could be established when “a deliberate choice to follow a course of action
is made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter
in question.” Id. at 483, 106 S. Ct. at 1300.
Justice Stevens wrote separately. Id. at 487, 106 S. Ct. at 1302
(Stevens, J., concurring in part and concurring in the judgment). He
emphasized, again, that § 1983 was intended to impose liability on the
government for illegal acts, including those performed by agents in the
course of their employment. Id. at 489, 106 S. Ct. at 1303. According to
Justice Stevens, the primary responsibility for protecting the
constitutional rights of the residents of the county rested on the shoulders
32
of the county itself rather than on agents that were trying to do their jobs.
Id. at 490, 106 S. Ct. at 1304. According to Justice Stevens, “The county
has the resources and the authority that can best avoid future
constitutional violations and provide a fair remedy for those that have
occurred in the past.” Id.
Finally, the Supreme Court considered § 1983 liability in Board of
County Commissioners v. Brown, 520 U.S. 397, 400, 117 S. Ct. 1382, 1386
(1997). In Brown, the plaintiff brought a § 1983 action in connection with
injuries suffered at a traffic stop where she was forcibly removed from her
automobile after it had been pulled over. Id. at 399–400, 117 S. Ct. at
1386. A verdict was entered for the plaintiff. Id. at 400, 117 S. Ct. at 1386
The Fifth Circuit affirmed, finding that the county could be held liable for
a sheriff’s single decision to hire a deputy after an inadequate background
check. Id.
The Brown Court held that the plaintiff had not established a basis
for liability under § 1983. Id. The Brown Court concluded that the mere
hiring by the sheriff of a deputy whose qualifications might later be
questioned did not establish a policy under Monnell. Id. at 404–05, 117
S. Ct. at 1388–89. The Brown Court emphasized the need to show
causation and fault in order to establish § 1983 liability. Id. at 406–07,
117 S. Ct. at 1389–90.
Justice Breyer dissented. Id. at 430, 117 S. Ct. at 1401 (Breyer, J.,
dissenting). He squarely took on Monnell. See id. He noted that the
rejection of respondeat superior in Monnell rested on poor history. Id. at
431, 117 S. Ct. at 1401. Justice Breyer criticized the caselaw splitting
hairs over what amounted to “policy” under Monnell. Id. at 433–34, 117
S. Ct. at 1402–03. Finally, Justice Breyer noted that current
developments, including the trend of cities indemnifying officers for their
33
constitutional torts, suggest Monnell may be outdated. Id. at 436, 117
S. Ct. at 1403–04.
D. Discussion of Respondeat Superior Liability. At the outset, I
would decline the city’s request that we cut and paste the Monnell “policy
or custom” approach into the caselaw on Iowa constitutional torts. As
demonstrated by Justice Stevens, the historical argument rejecting
respondeat superior is simply wrong. Tuttle, 471 U.S. at 835, 105 S. Ct.
at 2442. Further, from a policy perspective, as again noted by Justice
Stevens, the municipal entities themselves are in the best position to
modify their conduct and the conduct of employees in a fashion to secure
compliance with constitutional demands. Pembaur, 475 U.S. at 490, 106
S. Ct. at 1304; Tuttle, 471 U.S. at 843–44, 105 S. Ct. at 2446–47.
Therefore, from a deterrence perspective, it makes sense to apply
respondeat superior in the case of constitutional torts. Further,
experience has shown that proving policy or custom is exceedingly
problematic. The Monnell doctrine has introduced unnecessary
complexity into the law. See Brown, 520 U.S. at 433–37, 117 S. Ct. at
1402–04.
In addition, one of the reasons for the adoption of the Monnell
doctrine was to avoid thrusting federal courts into local affairs. See City
of Canton v. Harris, 489 U.S. 378, 392, 109 S. Ct. 1197, 1206 (1989)
(noting respondeat superior would lead to endless exercise of second-
guessing municipal employee training programs and would implicate
serious problems of federalism). The federalism problems simply are not
present when the claims are brought in a local state court.
The next question is whether we should import qualified immunity
to claims against the municipality. In Baldwin II, the majority found a
modified form of qualified immunity applied to officers and agents of the
34
state. 915 N.W.2d at 281. But that does not necessarily mean the same
type of immunity is available for municipal entities. On the question of
quasi-immunity for municipal entities, I think the proper answer is no for
the following reasons.
First, I note that qualified immunity for municipal entities was not
part of the common law. See Owen, 445 U.S. at 641–42, 100 S. Ct. at
1411. While plainly not dispositive, the lack of qualified immunity at
common law certainly undermines one of the rationales for rejecting
respondeat superior. The notion of respondeat superior liability for
municipal entities similar to that applicable to corporations has not proven
problematic.
Second, a damages remedy “is a vital component of any scheme for
vindicating cherished constitutional guarantees.” Id. at 651, 100 S. Ct. at
1415. Respondeat superior liability of a municipal entity ensures that
where there is a right, there is a remedy. See generally Bivens, 403 U.S.
at 400 n.3, 91 S. Ct. at 2007 n.3 (noting “modes of jurisprudential
thought” at the time of the United States Constitutional Convention that
“appeared to link ‘rights’ and ‘remedies’ in a 1:1 correlation”). Without it,
there will be a gap between established constitutional rights and the
remedies available to vindicate those rights. From a practical perspective,
the municipal entity is in a good position to pay compensation and spread
the cost among taxpayers.
And, the majority’s decision in Baldwin II to adopt a modified form
of qualified immunity strengthens the case for adoption of respondeat
superior for claims against municipalities. As noted by Justice Brennan,
“[M]any victims of municipal malfeasance would be left remediless if the
city were also allowed to assert a good-faith defense. Unless countervailing
35
considerations counsel otherwise, the injustice of such a result should not
be tolerated.” Owen, 445 U.S. at 651, 100 S. Ct. at 1415.
Third, as noted by Justice Stevens, the municipal entity itself is
likely to be in the best position to implement corrective measures to
vindicate constitutional rights. Pembaur, 475 U.S. at 490, 106 S. Ct. at
1304; Tuttle, 471 U.S. at 843–44, 105 S. Ct. at 2446–47. If a municipal
entity is liable for state constitutional torts of its officers and agents, there
will be a strong incentive to make sure training programs are adequate
and that hiring processes properly screen potential city employees.
Liability against an individual officer does not offer a similar prospect of
forward-looking action to lessen the risk of future unconstitutional
conduct.
Finally, for the reasons expressed in my dissent in Baldwin II, I do
not believe that municipal officers and agents are entitled to qualified
immunity. 915 N.W.2d at 281 (Appel, J., dissenting). As a result, from
my perspective, just as the agent or employee had no qualified immunity
defense, the municipality under respondeat superior would have no
qualified immunity defense.
IV. Liability of the City for Punitive Damages.
A. Introduction. One of the most remarkable developments in law
occurred in England during the late eighteenth century. The story is old
but good. John Wilkes was, literally, a royal pain, an irreverent, in your
face, irresponsible, arrogant, impulsive, and disrespectful dandy. Arthur
H. Cash, John Wilkes: The Scandalous Father of Civil Liberty 1–2 (2006)
[hereinafter Cash]. Some of us probably would not have liked him. After
the publication of a scurrilous article appeared in a political magazine
attacking the king and his advisors, the government went on a rampage,
searching dozens of locations and seizing scores of people—the usual
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suspects, no doubt—for telltale signs of responsibility, or complicity, in the
article’s publication. Thomas K. Clancy, The Fourth Amendment: Its
History and Interpretation 36 (1st ed. 2008) [hereinafter Clancy]; Phillip A.
Hubbart, Making Sense of Search and Seizure Law: A Fourth Amendment
Handbook 41 (1st ed. 2005) [hereinafter Hubbart]; Nelson B. Lasson, The
History and Development of the Fourth Amendment to the United States
Constitution 43 (1937) [hereinafter Lasson]. Wilkes was seized and his
living quarters searched as part of the general dragnet. Clancy at 36;
Lasson at 44; Andrew E. Taslitz, Reconstructing the Fourth Amendment: A
History of Search and Seizure, 1789–1868 at 20 (2006).
It turned out that the King and his retainers picked on the wrong
guy. He sued those responsible for an unlawful search and won
substantial judgments in English courts. See Wilkes v. Wood (1763) 98
Eng. Rep. 489, 489, 498–99; Hubbart at 42; Lasson at 45. He received
substantial punitive damages against the individual officers involved.
Wilkes, 98 Eng. Rep. at 498; see Hubbart at 42; Lasson at 45. The Wilkes
cases were a seminal rule of law development, holding the King’s agents
personally liable for unlawful conduct.
Wilkes’ success in the courts won wide international acclaim. His
name was well known in the American colonies. Cash at 2; Hubbart at
47; Taslitz at 21. His birthday was widely celebrated in the New World,
and he carried on correspondence with prominent Americans. Cash at 2;
Hubbart at 47; Taslitz at 21. In the famous Paxton’s case, James Otis
waxed eloquent about the events across the ocean, thrilling a young lawyer
in the audience, John Adams. Jacob W. Landynski, Search and Seizure
and the Supreme Court: A Study in Constitutional Interpretation 34–37
(1966) (quoting 10 John Adams, Life and Works of John Adams 247–48
(1856)). It is an unpleasant but revealing fact that John Wilkes Booth got
37
his middle name from the Englishman, the point being that Wilkes and his
successes in court over the exercise of arbitrary government power were
well known through America decades after the events in question. See
Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 389
(2010).
There is no question that the generation of Iowans who established
statehood knew the Wilkes story. The Iowa Supreme Court cited one of
his cases in 1855. Sanders v. State, 2 Iowa 230, 239 (1855). Today,
however, Wilkes seems to have been forgotten, or perhaps more accurately
ignored, by ahistorical thinkers who view punitive damages as a virus that
needs to be isolated and ultimately eradicated. But historically, the
awards of punitive damages for illegal government searches and seizures
in the Wilkes cases were thought to represent an epic success in the effort
to control unbridled government power.
The Wilkes cases did not involve claims for punitive damages against
government entities, only against the officers. They do, however, stand for
the proposition that punitive damages in general can play an important
part in vindicating the public’s interest in restraining arbitrary
government. And, the Wilkes cases are a predicate to an important
question: if punitive damages are available against individual defendants,
why should they not be available against municipalities?
B. Punitive Damages Against Municipalities at Common Law.
As a general rule, municipalities at common law historically were not
subject to punitive damages. For instance, in Bennett v. City of Marion,
102 Iowa 425, 426, 71 N.W. 360, 360 (1897), the court held punitive
damages were not available against a municipal corporation.
The court, however, took a different tack in Young v. City of
Des Moines, 262 N.W.2d 612, 614 (Iowa 1978) (en banc). In Young, the
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plaintiff brought a claim for false arrest against the city. Id. The Young
court noted that given the developments in tort law in Iowa, liability is now
the rule, with immunity being the exception. See id. at 620–21. The
Municipal Tort Claims Act did not expressly exclude punitive damages. Id.
at 622.
The Young court acknowledged that the weight of authority at the
time was against allowing such damages absent a statute expressly
allowing them. Id. at 621. The Young court canvassed the public policy
rationale for excluding punitive damages and found them unpersuasive.
Id. at 621–22. The Young court noted that “if a governmental subdivision
be held answerable in punitive damages, more care will go into the
selection and training of its agents and employees.” Id. at 621–22. The
Young court further declared it was not convinced that the wealth of the
municipality is a problem as the amount of punitive damages was
determined by the sound judgment of the jury, subject to judicial review.
Id. at 622. The Young court declared that, where appropriate, punitive
damages against governmental subdivisions “will further deter unfounded
and oppressive peace officer conduct under the guise of official action.” Id.
The Young court noted, however, that if the legislature intended to bar
punitive damages, it could amend the applicable statute. Id.
Several years later, the legislature amended the Iowa Municipal Tort
Claims Act to bar an award of punitive damages against municipalities for
cases in tort, partially abrogating Young. 1982 Iowa Acts ch. 1018, § 5
(codified at Iowa Code § 613A.4(5) (1983), now Iowa Code § 670.4(e)
(2019)). In Parks v. Marshalltown, 440 N.W.2d 377, 379 (Iowa 1989), the
court considered the validity of an award of punitive damages in a case
involving a verdict in favor of the plaintiff on a breach of contract theory.
The Parks court reasoned that if punitive damages were not available in a
39
tort action, they should not be available in a contract action. Id. The
Parks court did not consider the validity of the legislation as applied to
constitutional torts. See id.
C. Discussion of Punitive Damages in Godfrey. In Godfrey, 898
N.W.2d at 847 (majority opinion), we held that a plaintiff could bring a
state constitutional tort for violations of equal protection and due process
brought against government officials. With respect to the equal protection
claim, the defendants argued that the remedies provided by the Iowa Civil
Rights Act were exclusive and that a constitutional tort based on equal
protection could not be brought outside the statute. Id. at 849, 873.
Because the Iowa Civil Rights Act did not provide for punitive damages, a
question arose whether the remedies provided by the statute were
“adequate” to vindicate the constitutional rights of the plaintiff. Id. at 875.
Three members of the court concluded that the remedy provided by
the Iowa Civil Rights Act was not adequate because of the lack of a punitive
damages provision. Id. at 876–79 (plurality opinion). Chief Justice Cady
wrote the determinative opinion. Id. at 880–81 (Cady, C.J., concurring in
part and dissenting in part). He reasoned that punitive damages might
well be a required remedy in some state constitutional tort but not on the
claim presented in Godfrey. Id. at 881. He specifically left the door open
for an award of punitive damages in Wilkes-type cases. Id. For the
majority of the Godfrey court, it seems clear as a matter constitutional law
that punitive damages should be available in at least some cases
notwithstanding legislative action to the contrary. Id. at 876–79 (plurality
opinion); id. at 880–81 (Cady, C.J., concurring in part and dissenting in
part).
D. Punitive Damages Against Municipalities for Constitutional
Torts in the United States Supreme Court. The seminal United States
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Supreme Court case regarding recovery of punitive damages against a
municipality in a § 1983 case is City of Newport v. Fact Concerts, Inc., 453
U.S. 247, 249, 101 S. Ct. 2748, 2750 (1981). In City of Newport, an
organization licensed to present music concerts and a rock concert
promoter sued the city and city officials under § 1983 for cancelling a
music concert license. Id. at 252, 101 S. Ct. at 2752. The jury returned
a verdict in favor of the plaintiffs and awarded compensatory and punitive
damages, including a punitive damage verdict against the city of $200,000.
Id. at 253, 101 S. Ct. at 2752. The First Circuit affirmed. Fact Concerts,
Inc. v. City of Newport, 626 F.2d 1060, 1061 (1st Cir. 1980).
The City of Newport Court vacated the court of appeals’ opinion. 453
U.S. at 271, 101 S. Ct. at 2762. The City of Newport Court noted that at
common law, immunity of municipal corporations from punitive damages
was not subject to serious question and continues to be the law in a
majority of jurisdictions. Id. at 259, 101 S. Ct. at 2756. Because
immunity from punitive damages was established at common law, the City
of Newport Court proceeded on the assumption that Congress would have
specifically addressed the issue had it intended to allow liability for
punitive damages under § 1983. Id. at 263, 101 S. Ct. at 2758.
Turning to public policy, the City of Newport Court observed that an
award of punitive damages against a municipality punishes taxpayers. Id.
at 267, 101 S. Ct. at 2760. While the City of Newport Court recognized it
had previously suggested that punitive damages might in appropriate
circumstances be awarded to punish violations of constitutional rights,
the Court said that the retributive purpose was not significantly advanced
by exposing municipalities to punitive damages. Id. at 268, 101 S. Ct. at
2760.
41
The City of Newport Court also declared that it was “far from clear”
that municipal officers would be deterred by an award of punitive
damages. Id. at 268–69, 101 S. Ct. at 2760–61. The City of Newport Court
stated that a more effective remedy would be to assess punitive damages
against the offending public officials. Id. at 269, 101 S. Ct. at 2761. In
footnote 29, however, the City of Newport Court stated that “[i]t is perhaps
possible to imagine an extreme situation where the taxpayers are directly
responsible for perpetrating an outrageous abuse of constitutional rights”
but that such a scenario was sufficiently unlikely that the Court “need not
anticipate it here.” Id. at 267 n.29, 101 S. Ct. at 2760 n.29.
Following City of Newport, plaintiffs have attempted to evade its
holding by pointing to footnote 29. For example, in Webster v. City of
Houston, 689 F.2d 1220, 1221 (5th Cir. 1982), plaintiff claimed the police
had adopted a custom of carrying guns or knives as “throw downs” to be
planted near suspects who are shot in dubious circumstances. The Fifth
Circuit, though finding the plight of the plaintiff “reprehensible,” held that
the actions were not sufficiently outrageous to support a punitive damages
claim against the municipality under footnote 29 of City of Newport. Id. at
1229. Similarly, in Heritage Homes of Attleboro, Inc. v. Seekonk Water
District, 670 F.2d 1, 2 (1st Cir. 1982), the First Circuit declined to allow
punitive damages where some voters engaged in “blatant raci[st]
discussions” before the water district voted to exclude a housing developer
willing to sell units to black families. The First Circuit reasoned that only
a small claque of voters engaged in the commentary and that there was no
widespread knowledgeable participation by taxpayers of the district. Id.
Perhaps the most interesting response to City of Newport occurred
in Ciraolo v. City of New York, 216 F.3d 236 (2d Cir. 2000). In this case,
Judge Calabresi wrote both the majority opinion and a concurring opinion.
42
Id. at 237 (majority opinion); id. at 242 (Calabresi, J., concurring). In
Ciraolo, a plaintiff claimed that after she was arrested on misdemeanor
charges in connection with a spat with her neighbor, she was taken to jail,
ordered to strip naked, and made to bend down and cough while visually
inspected. Id. at 237 (majority opinion). The city conceded liability as
there was a uniform policy to strip search all females upon their arrival at
the jail, and a trial was held on the question of damages. Id. at 238. A
jury awarded the plaintiff $19,645 in compensatory damages and
$5,000,000 in punitive damages. Id.
In his majority opinion, Judge Calabresi found that footnote 29 in
City of Newport was not designed to allow punitive damages for especially
outrageous misconduct but instead, at most, was designed to address a
situation where taxpayers themselves participate in the unlawful action
such as where taxpayers adopt an unconstitutional policy through a
referendum. Id. at 240. Under the circumstances, Judge Calabresi, for
the court, reversed the award of punitive damages. Id. at 242.
In his concurring opinion, Judge Calabresi expressed that although
the result in the case was compelled by the Supreme Court, he believed a
better outcome would have been to allow punitive damages. Id. at 242
(Calabresi, J., concurring). Judge Calabresi wrote that punitive damages
can ensure a wrongdoer bears all the costs of action where compensatory
damages alone result in “systematic underassessment of costs, and hence
in systematic underdeterrence.” Id. at 243. Judge Calabresi noted that
not all persons injured by an unconstitutional action by a municipality
will sue, either because compensatory damages are likely to be relatively
low or because their knowledge and access to the legal process are poor
and unsophisticated. Id. at 243–44.
 43
As a result, compensatory damages in a wide category of cases are
an inaccurate indicator of the true level of harm inflicted by government
conduct. Id. at 244; see A. Mitchell Polinsky & Steven Shavell, Punitive
Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 889 (1998). Judge
Calabresi noted that although extracompensatory damages have been
labeled “punitive damages,” a more appropriate name for such damages
designed to avoid underdeterrence might be “socially compensatory
damages.” Ciraolo, 216 F.3d at 245. Judge Calabresi emphasized that
once it is recognized that remedying underdeterrence is an appropriate
function of extracompensatory damages against a municipality, and that
this goal is separate from punishment, the objections to punitive damages
lose much of their force. Id. at 248.
E. Discussion of Availability of Punitive Damages in Actions
Against Municipalities. In considering the availability of punitive
damages against municipalities, it is important to begin the discussion
with a recognition of the difference between a private dispute between two
parties and a state constitutional tort claim against government. The
latter involves only private interests, but the former is imbued with an
important public interest. Bivens, 403 U.S. at 409, 91 S. Ct. at 2011
(Harlan, J., concurring in the judgment); Godfrey, 898 N.W.2d at 876–79
(plurality opinion). That important public interest is in ensuring that
government not violate the fundamental rights enshrined in the very first
article of the Iowa Constitution, the provision characterized as “the most
important provisions” of the entire constitution. Godfrey, 898 N.W.2d at
870 (majority opinion).
Further, in examining the question of deterrence, Calabresi has it
right, namely, that in addition to specific deterrence involving the parties
to a controversy, there is the question of general deterrence, or what he
44
calls “socially compensatory damages.” Ciraolo, 216 F.3d at 245. In this
context, it is important that payment of relatively small amounts to
particular litigants do not become a license for unconstitutional conduct
that simply becomes a routine part of overhead for government operations.
In considering the deterrence issue, the City of Newport Court
questioned whether a punitive damage award against a public entity would
be effective. City of Newport, 453 U.S. at 268–69, 101 S. Ct. at 2760–61.
But a year earlier in Owen, the Court indicated that compensatory
damages would create an incentive for government to conform its conduct
to constitutional concerns. 445 U.S. at 651–52, 100 S. Ct. at 1415; see
Michael Wells, Punitive Damages for Constitutional Torts, 56 La. L. Rev.
841, 866 (1996). If compensatory damages against a government entity
provide deterrence, it is hard to see why punitive damages would not also
deter.
Yet, while punitive damages should not be categorically unavailable,
they are not appropriate in an ordinary case involving liability solely
arising because of respondeat superior principles. Instead, liability should
arise only where the unconstitutional conduct arises to willful and wanton
misconduct. Where there is exposure to punitive damages, the potential
unconstitutional actions will be “squarely on the radar screens of
responsible officials.” Myriam E. Gilles, In Defense of Making Government
Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 Ga. L. Rev.
845, 873 (2001). Thus, the reprehensive policies such as conducting body
cavity searches on all misdemeanor female defendants arriving at the jail
as in Ciraolo would be subject to an award of punitive damages.
In my view, maintaining the adequacy of remedies for state
constitutional torts is the responsibility of this court. The legislature can
establish reasonable processes for the prosecution of constitutional torts
45
but cannot substantively reduce the available remedies below a
constitutionally acceptable point. Godfrey, 898 N.W.2d at 876–79
(plurality opinion). In the narrow class of cases mentioned above, I would
insist on the availability of punitive damages against the municipality
notwithstanding legislative action that seeks to limit the availability of the
remedy.
Regretfully, the majority does not agree. But the majority’s
acceptance of the legislature’s limitation on punitive damages against
municipal entities for constitutional torts is, or at least in my view should
be, dependent upon the availability of punitive damages in Wilkes-type
actions. Although a Wilkes-type case imposing punitive damages upon
individual actors is not before us, we must approach immunity issues in
a systemic fashion. Otherwise, comparatively narrow applications of
rights-restrictive doctrine may be palatable at each step but cumulatively
create an unacceptable regime for state constitutional torts. This
observation is consistent with the Supreme Court’s approach in City of
Newport, where the refusal to extend punitive damage liability to
municipalities rested, at least in part, on the availability of punitive
damages against an individual officer.
V. Attorney Fees for Constitutional Torts Under Common Law
Exceptions to the American Rule.
The last question is whether the plaintiff in this case might be
entitled to attorney fees. There is no state statute authorizing attorney
fees for successful prosecution of state constitutional torts. We have
followed the American rule that attorney fees “are generally not recoverable
as damages in the absence of a statute or a provision in a written contract.”
Botsko v. Davenport Civil Rights Comm’n, 774 N.W.2d 841, 845 (Iowa 2009)
(quoting Kent v. Emp’t Appeal Bd., 498 N.W.2d 687, 689 (Iowa 1993) (per
46
curiam)). While the general rule is that attorney fees are not recoverable
absent a statute or contractual provision, the question in this case is
whether there are exceptions to the general rule that may be applicable.
The majority has concluded that attorney fees in this case may be
awarded if the opposing party “acted in bad faith, vexatiously, wantonly,
or for oppressive reasons.” Hockenberg Equip. Co. v. Hockenberg’s Equip.
& Supply Co. of Des Moines, Inc., 510 N.W.2d 153, 158 (Iowa 1993) (quoting
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258–59, 95
S. Ct. 1612, 1622 (1975)). This common law exception to the general rule
against award of attorney fees is well established and may well be
applicable in this case depending upon the ultimate factual showing made
at trial.
The plaintiff in this case, however, presents another reason for an
award of attorney fees. The plaintiff asserts another common law
exception to the general American rule, namely, that attorney fees and
costs may be awarded under a “private attorney general” theory. The
private attorney general theory as a basis for an award of attorney fees has
been embraced in many states. See, e.g., Arnold v. Ariz. Dep’t of Health
Servs., 775 P.2d 521, 537 (Ariz. 1989) (en banc); Serrano v. Priest, 569
P.2d 1303, 1315 (Cal. 1977) (en banc); Sierra Club v. Dep’t of Transp., 202
P.3d 1226, 1270 (Haw. 2009); Hellar v. Cenarrusa, 682 P.2d 524, 531
(Idaho 1984); Bedard v. Town of Alexandria, 992 A.2d 607, 611 (N.H.
2010); Deras v. Myers, 535 P.2d 541, 550 (Or. 1975) (en banc). See
generally Ann K. Wooster, Annotation, Private Attorney General Doctrine—
State Cases, 106 A.L.R. 5th 523 (2003) (collecting cases). Although the
private attorney general exception to the American rule was being
embraced in lower federal courts, the Supreme Court put this development
47
to a full stop in federal courts in Alyeska Pipeline, 421 U.S. at 254–69, 95
S. Ct. at 1620–27.
The private attorney general theory is not a wide-open mechanism
whereby any successful plaintiff can obtain attorney fees. Instead, it is a
limited exception to the generally applicable American rule. In the seminal
case of Serrano, the California Supreme Court held that attorney fees on a
private attorney general theory could be awarded if (1) the litigation
benefited a large number of people, (2) private enforcement of the rights
involved was required, and (3) the issues have sufficient social importance.
569 P.2d at 1314. There are, of course, variations in the private attorney
general doctrine from jurisdiction to jurisdiction. See William B.
Rubenstein, On What a “Private Attorney General” Is—And Why It Matters,
57 Vand. L. Rev. 2129, 2142 (2004).
I would generally adopt the three-pronged test articulated in Serrano
for determining whether attorney fees could shift based on a private
attorney general theory in cases involving a state constitutional tort. In
particular, it seems clear that in cases involving alleged search and seizure
violations under the state constitution, the second and third criteria are
likely met.
The only question is whether a substantial number of persons would
benefit from the litigation. A significant benefit does not require a tangible
asset or concrete gain but may arise simply from the effectuation of a
fundamental constitutional or statutory policy. Slayton v. Pomona Unified
Sch. Dist., 207 Cal. Rptr. 705, 714 (Ct. App. 1984). On the other hand, an
individual claim with little public benefit, such as that arising from a
singular miscalculation of overtime benefit, is not sufficient. State v.
Boykin, 538 P.2d 383, 388 (Ariz. 1975) (en banc); see also City of Clarkston
v. City of Clarkston Civil Serv. Comm’n—Fire, No. 15119–1–III, 1997 WL
48
282501, at *5–6 (Wash. Ct. App. May 29, 1997) (addressing reinstatement
of police chief). As with the other issues, I would not engage in application
of this test to the facts of this case. I would only hold that attorney fees
may be awarded under the private attorney general theory described
above. The majority opinion does not address the private attorney general
question, and it thus remains an open issue.
VI. Conclusion.
I would answer the certified questions as follows: the municipality
is not entitled to good-faith immunity, punitive damages may be available
against a municipality upon a proper showing, and attorney fees may be
available under the bad faith or private attorney general theories.