*1 the rent of the charged with not be “should GODFREY, Appellant, Christopher J. [them], but should by made
improvements land has been worth pay whatever v. 271-72; see also 8 Iowa Dungan, him.” Branstad, Iowa; Terry Gover- of STATE Shower, 261, 274-75 18 Iowa Childs Iowa, Individually of nor of State (1865). recognize may this Although we Capacity; Kimber- and in His Official believe the remedy, a harsh we appear ly Reynolds, Lieutenant Governor of other pros- not left without Bushaws are Iowa, Individually and in of State may remedy, they as assert pects for Boeyink, Capacity; Jeff Her Official having legal persons of the to the Governor Chief of Staff damages. for their responsibility Iowa, Individually and in His State Findley, Capacity; Brenna Official Conclusion. IV. Legal to the Governor of the Counsel modified the dis- therefore affirm as We Individually Iowa, and in Her State of in- ruling and remand with trict court’s Timothy Albrecht, Capacity; Official court shall enter The district structions. Director to the Gov- Communications by one of the follow- judgment provided Iowa, Individual- ernor of State (1) Jingles If elects not to ing formulas: ly Capacity; in His Official and appraised Bushaws the value pay the Wahlert, Director, Iowa Work- Teresa and elects instead to improvements Individually Development, force Bushaws, amount transfer title to the Capacity, Appellees. in Her Official favor judgment in her No. 12-2120. be estate and the Bushaws shall deter- $20,000 by adding plus mined sum of Iowa. Supreme Court times the num- per the sum of month $250 June 2014. convey- ber of months from the date the Bushaws until ance the estate to (2) Jingles If judgment;
the date of property pay to retain the
elects value of the im- appraised
Bushaws the
provements, judgment the value of the
against Jingles be determined shall $21,000 the
subtracting from amount of per multiplied by month the number
$250 convey- since the having elapsed months
ance from the estate to the Bushaws. The taxed one-half appeal
costs shall be Jingles and one-half to Bushaws. AND
AFFIRMED AS MODIFIED
REMANDED WITH INSTRUCTIONS. *2 of Roxanne Con-
Roxanne Barton Conlin Associates, P.C., Moines, for lin & Des appellant. Doane, LaMarca, Andrew H.
George A. LaMarca & J. De Foster of Phillip P.C., Moines, appellees. Landry, Des gov- meeting with the chief staff Nyemaster Goode Koopmans of Ryan G. ernor, Moines, Jeffrey Boeyink, legal and the coun- curiae Na- P.C., for amicus Des governor, Findley, Brenna sel to the Association. tional Governors attempted to intim- which these individuals WIGGINS, Justice. resigning by and harass him into idate *3 Godfrey salary. to reduce his threatening against the brought an action A plaintiff Subsequently, again resign. refused to individual defendants. Iowa and State of Godfrey’s salary to the Governor reduced the individual defen- named $73,250. capaci- and individual in their official dants certified under attorney general ties. The actions, Godfrey response In to these 669.5(2)(a) (2011) Iowa section Code petition alleging filed an amended causes plaintiffs material to the certain times Iowa; Terry action the State of against defendants were the individual allegations, Iowa, Branstad, of the State of Governor of their acting within in individually capacity; and his official Thus, certain immunities under ment. Governor, Lieutenant Kimberly Reynolds, applied to vari- Iowa section 669.14 individually capacity; and in her official The district petition. counts of the ous Jeffrey Boeyink, gover- chief of staff to the certifica- general’s court held nor, individually capacity; and in official his plaintiffs to all of the applicable tion was gover- Findley, legal Brenna counsel to the district court Consequently, claims. nor, individually capaci- in her official and alleging those counts the indi- dismissed Albrecht, Timothy communications ty; di- acted outside the vidual defendants governor, individually and in rector to employment. of their Wahlert, capacity; his official and Teresa attorney gener- we hold the appeal, On Development, director of Iowa Workforce applicable plain- al’s certification is not to individually capacity. in her official and the indi- alleging tiffs common law claims relevant to this are appeal The counts vidual defendants acted outside through procedural counts VI XVI: Therefore, we re- process against substantive due claims all back to the court to mand the case district defendants under the Iowa Constitution allow the fact finder decide whether Godfrey’s in em- property interest his were within individual defendants’ actions procedural and substantive due ployment; each individual’s process against claims all defendants un- Godfrey’s der the Iowa Constitution for Background I. Facts and Proceed- liberty equal reputation; interest his ings. against claim the State under protection Christopher Godfrey J. is the workers’ Constitution; interference-with- 2009, compensation commissioner. In against contract-relations claims the indi- appointed Governor him to Chet Culver defendants; interference-with-pro- vidual six-year for a term. God- position this claims spective-business-advantage against frey’s 2015. Pri- expires April term on defendants; defamation the individual July Godfrey’s salary or to against Reynolds, defendant defen- claims ' $112,068.84. Albrecht, Branstad, defendant dant 3, 2010, extortion claims Boeyink; On December Governor-elect defendant Godfrey’s resig- Findley and defendant Terry against Branstad demanded defendant Godfrey’s Boeyink. By bringing against his suit de- Godfrey nation. refused. After individually and their official resign, Godfrey alleges he had a fendants refusal agree prejudg- his claims We also that claims for Godfrey joined capacities, with his the individual defendants against punitive damages ment interest and are State, the defendants in their offi- proper against but we See Iowa R. Civ. P. 1.231 capacity. cial pled don’t think we ever them joinder multiple or alter- (allowing the did, the State. And we that was a single petition against in a native claims So depends mistake. on the Court’s under certain circum- single defendant ruling as to the individual defendants. stances); (allowing joinder id. r. 1.233 paragraph incidentally, Your 4— multiple single petition defendants Honor, paragraph of our resistance we circumstances). under certain claims, withdraw those but I don’t think general provided
The Iowa we want to withdraw them as pursuant to Iowa Code section individual defendants. *4 669.5(2)(a) certifying the individual defen- were of their dants MS. .... CONLIN: And so it seems at the time of the employment allegations to us that we can maintain claims for petition. in the amended contained prejudgment interest punitive and for defendants then moved to substitute the damages against the individual defen- in place State of Iowa of the individual they dants parties insofar as are still to through defendants for counts VI XVI proceeding. 669.5(2)(a). pursuant to Iowa Code section Honor, may say, if I And Your in The relief asked for the motion was to motion, connection with our earlier what strike all references to the individual de- says the State is that a state employee through fendants counts VI XVI. for all purposes times and all cloaked did not the court individual defendants ask with immunity things like assault petition. to dismiss counts of the battery. if and So a state Godfrey two resisted motion on lunch, lunch, goes out at it’s a business First, grounds. argued he the individual gets quarrel into a and knocks defendants were not down, somebody says they State are therefore, say immune. they And are not. subject
were not to substitution based on attorney general’s certification under MS. I think the CONLIN: State’s 669.5(2)(a). Second, section he argued untenable, position just on this is substitution of the State for the named is a state when defendants in these counts did not auto- he or she is of em- matically require dismissal of counts. those but not ployment, otherwise. hearing The district court held a on the At the hearing, motion to substitute. identify Trial counsel’s statements a dis- Godfrey’s district court asked trial counsel Godfrey tinction between the claims made Godfrey resisting any of the counts against in their the defendants official ca- partial summary judg- discussed in the i.e., pacities, their responded ment motion. Counsel as fol- properly where the court could substitute lows: State, Godfrey and the claims made so, against
MS. I don’t think Your the defendants in their individual CONLIN: capacities.1 Honor. argument, Godfrey's
1. In oral counsel made the same assertion she made in the district violated interpretation and this parties pretation hearing, Subsequent a dis- should dismiss review court the Iowa Constitution. We the district agreed (1) entirety if statutory interpretation in their through X XV trict court’s counts granted the defendants’ City court the district of errors at law. See correction (2) Iowa, the State of motion to substitute Reg’l Upper Explorerland Postville Godfrey on found (Iowa court the district Comm’n, 1, 6 Planning 834 N.W.2d of the State for claim that substitution his 2013). did not lead to defendants
the named
counts, and
of those
automatic dismissal
IV.Immunity
Employees
for State
(3)
the certifica-
court decided
the district
Act.
the Iowa Tort Claims
Under
Godfrey
pursue
his
allow
tion did not
individual defendants
against the
actions
sovereign immunity
The doctrine of
acting within
who
were
tort suits
originally prohibited
The district court
employment.2
State, 298
State of Iowa. Hansen v.
counts
motion to substitute on
granted the
(Iowa 1980).
Sovereign
N.W.2d
counts X
XVI and dismissed
through
VI
immunity
applied
governmental
also
per
parties’ agreement.
through XV
See,
Canade, Inc. v.
e.g.,
subdivisions.
Grass, 195
Town Blue
interlocutory ap-
Godfrey applied for an
(Iowa 1972) (recognizing
gov-
the rule of
review the district
asking us to
peal,
*5
claim of
immunity applied
ernmental
to a
and its
ruling to allow substitution
court’s
This
negligence against municipality).
a
through
X
in reli-
of counts
XV
dismissal
thus,
immunity
jurisdictional;
was
general’s
ance on the
certifica-
jurisdiction
lacked
over tort actions
granted
application.
courts
tion. We
against
agencies. Lloyd
the State or its
II.
Issues.
(Iowa 1977).
551,
State, 251
N.W.2d
1965,
general assembly
In
enacted the
appeal
issue on
is whether
thereby
Iowa Tort
Act and
waived
Claims
attorney general’s
pursuant
669.5(2)(a)
sovereign immunity
the State’s
for certain
applicable
is
Iowa Code section
against
the State. See 1965
Godfrey’s
alleging
common law claims
tort
(codified
ch.
the individual defendants acted outside the
Iowa Acts ch. 79
at Iowa Code
(1966),
25A
current version at Iowa Code
669).
1968,
general assembly
In
ch.
III.
of Review.
Standard
Tort
Act
Municipal
enacted the
Claims
similarly
political
waived a
subdivision’s
Godfrey argues the district court’s
a
finding
statutory
immunity
against
was an
inter-
for certain tort claims
improper
through
Godfrey's
XV
Specifically
court.
she stated:
2.
claims in counts X
interference with contract
included claims of
I wanted to address some of the issues that
relations,
you've
my pleading
prospective
interference with
busi-
raised.
In
I did not
bring
Tort
the action under
the Iowa
advantage,
defamation. Under Iowa
ness
Claims Act. Did I file with the Iowa Tort
669.14(4),
Tort Claims
Code section
the Iowa
Absolutely
people?
Claims Act
because it
sovereign immunity
Act does not waive
though
good thing
seems as
that was a
Thus,
prop-
if the
court
these claims.
district
just
bring
way.
do
in case but I didn't
it that
place
erly
the State in the
substituted
brought
it
law. All
at common
six
claims, God-
individual defendants for these
brought
were
were
at
claims that
dismissed
against
frey could not maintain these claims
common law
I do not think that
because
the State.
Godfrey
the Governor
Chris
in his
defamed
of his
455,
Id.
political subdivision. See 1967 Iowa Acts duct.”
at
Id. at 280 N.W. 614. We After the enactment of the state and “[pjublic acts, service should not abe shield to municipal tort claims we continued to protect servant from apply the conse- the rule that an employee can be quences of his [or her] miscon- hable for acts outside the scope of his or
584
a law-
See,
expense
defending
from the
e.g., Roberts v.
ees
her
defend,
1979).
(Iowa
the State to
in-
20,
by requiring
suit
Timmins,
demnify,
hold harmless an
Roberts,
brought a claim
In
any
employee, pro-
from
claim
municipal employees
against several
performed
alleged
his auto vided the
continuing
“from
him
preventing
em-
of his or her
city actions
by shutting off his
repair business
80, §
Iowa Acts ch.
ployment. 1975
a ‘health denuncia-
issuing
supply,
water
(codified
(1977),
§
at Iowa Code
25A.21
utility to
get
a local
attempting
tion’ and
669.21)
§
current version at Iowa Code
Id. at
electric service.”
gas
cut off his
Act to
(amending the Iowa Tort Claims
subsequently filed a
21. The
em-
dismiss,
provide the State would defend state
arguing
plaintiffs
motion to
ployees).
did not follow the
failed because he
claim
Tort
Municipal
under
procedures
claim
assembly added the certifi-
general
The district court sus-
Act. Id.
Claims
provision
cation
in 2006 as an amendment
appeal,
Id. at 22. On
the motion.
tained
to the Iowa Tort
Act. 2006 Iowa
Claims
recov-
person attempting
we observed
(codified
1185, §
Acts ch.
at Iowa Code
municipality
or
damages against
er
669.5(2)(a) (2008)).
§
language
officers,
employees,
agents
of its
is similar to the lan-
provision
employment must
guage
by Congress
used
Westfall
Municipal
procedures
follow the
669.5(2)(a)
Compare
Act.
Iowa Code
proceed.
Id. at 24.
Tort
Act to
Claims
2679(d)(1) (2012).
(2011),
with 28 U.S.C.
Nonetheless,
facts
taking
well-pleaded
all
general assembly’s
We also believe the
true,
plaintiff alleged
we found the
as
purpose
amending
the Iowa Tort Claims
willfully, maliciously
acted
“defendants
purpose Congress
Act is the same
intend-
without authorization outside
Act.
passed
ed when it
the Westfall
therefore,
employment”;
proce-
Congress enacted the Westfall Act in
Municipal
dures of the
Tort Claims Act did
response
Supreme
to the United States
govern
According-
the action. See id.
in the case of
Court decision
Westfall
ly,
district court and al-
we reversed the
292, 108
Erwin. See 484
S.Ct.
U.S.
continue until the evi-
lowed the suit to
(1988),
statute,
superseded by
L.Ed.2d 619
dence showed otherwise. See id.
Act,
100-694, 102
Pub.L. No.
Stat.
Westfall
summary,
even after the enactment
recognized
in Gutierrez de Mar
*7
acts,
tort
municipal
of the state and
claims
425,
417,
Lamagno,
tinez v.
515 U.S.
115
employee
the victim of a tort could sue an
2227, 2232,
375,
132 L.Ed.2d
S.Ct.
384-85
personal capacity
in his
her
for acts
or
(1995). In
Westfall,
Supreme Court
scope
employ-
outside the
of his or her
employee’s immunity
limited a federal
ment.3
by finding immunity
only
from
was
suit
employee
when the em
available to
V. Certification Under
Iowa Code ployee
scope
both acted within the
of his
669.5(2)(a).
Section
alleged
employment
wrong
or her
and the
discretionary
ful act
in nature.
passage
Prior
section
was
West
300,
585,
669.5(2)(a),
employ-
fall,
585
2679(d)(2).
§
responded by al court.
Id.
Congress
Supreme
L.Ed.2d at 628.
immunity
Attorney
under
the Westfall
determined the
expanding
Court
General’s
Act,
decision created a
certification
finding
Lamagno,
is reviewable.
515
Westfall
litigation
434,
2236,
of increased
tort
threat
U.S. at
act of the Federal Tort Analysis. YI. 419-20, Act. id. at 115 S.Ct. at Claims Cf appeal, To decide this we do not 2229, (recognizing L.Ed.2d at 381 need to decide whether the Iowa Federal Act came into Tort Claims general’s certification is reviewable. Rath play Attorney General certified the er, we must address whether the acting defendants as general’s applicable certification is Act). under the Westfall alleging individual defendants were explained As one court acting outside the of their employ purpose of the Westfall Act is to Congress ment. enacted the Westfall Act assure that the decisions and conduct of independently of the Federal Tort Claims in federal servants the course of Act and forth procedure set to follow adversely their work will not be affected person when a or entity sues a federal liability of personal money fear Act, employee. Under Westfall damages defending and of the burden of Attorney may provide General his certifi damage liability Congress claims. thus action, in any cation even those not grant immunity wished to from both lia- brought under the Federal Tort Claims bility and litigation those instances 419-20, Act. See id. at at S.Ct. which the was (affirming Attorney L.Ed.2d of his or her office or provide General can a certification in a time, Congress ment. At the same originated case that regular as a tort case rights wished to leave undisturbed the court). filed injured by those federal who were not general assembly included a similar office or provision in the Iowa Tort 669.5(2)(a). Act. (3d Claims See Iowa Code Hafer, Melo v. 13 F.3d Cir. However, 1994). the first sentence section 669.5 makes it clear provisions of sec- proce- The Westfall Act forth the sets only apply brought tion 669.5 to suits un- Attorney certify dure for the General to der the Iowa Tort Claims Act. See id. within the scope of 669.5(1) (“A suit permitted shall not be his or her When a person for a claim under chapter unless the entity sues an employee of the federal *8 attorney general disposition has made final government, employee the delivers the suit added.)). (Emphasis of the claim.” papers Attorney General. 28 U.S.C. 2679(c). § Attorney By limiting General then de- general’s certi- provide cides whether to the certification. fication to actions plaintiff where the Attorney If the provides General a certifi- employee acting claims the is within the cation scope employment, pre- and filed the action of his or her we court, state purpose pro- the action is removed to feder- serve one of the certification
586 may file a motion for sum- employee or an act within employees who Those vision. resolve this issue. See granted mary judgment are employment their scope of Co., Reins. liability litigation Mwt. from both Boelman Grinnell immunity (Iowa 2013). (“We fear can adversely affected be and will not money damages liability summary judgment if resolve a matter on of damage liabil- defending concerning a conflict burden of the record reveals and the ity consequences undisputed claims. of only legal facts.”). employee the state
A claim plaintiffs his or scope of acting not was scope can resolve the If the court brought a claim employment is not her sutnmary judg issue of Act. See id. Tort Claims under ment, substitute the State the court shall 669.2(8)(6) pur- “claim” for (defining not, If employee. as the defendant for Act as those of the Iowa Tort Claims poses remain a defendant until employee will where the against employee a state claims that at the time the fact finder establishes his or scope acts within the of employee was actions the alleged of Thus, we conclude the employment). her his or her em acting scope within the of certification can attorney general’s establishes ployment. If the fact finder the Iowa brought to actions under apply scope within the brought and not those Act Tort Claims employment, the court shall of his or her acting outside the as the defendant for substitute the State holding Our in this employment. of employee. purpose the other of regard preserves also leave undisturbed the the certification—to today change Our decision does not injured by employees of those state rights way the State has administered claims not within the of who were open or the flood employment. their employees to be sued indi gates for state vidually pay and to the defense costs out we Applying principles, these a tort pockets they their own when commit Godfrey has his claims recognize argued First, it of their against the individual defendants their always has been the law of this State that not from capacities individual do derive outside the public employee when a acts within the actions that occurred her the em scope of his or Thus, personally responsible for the ployee to his general’s apply certification does any damages cost of defense and he or she against the individual defendants in Montanick, have may caused. See capacities. their individual These claims 455-57, 615; Iowa at 280 N.W. at see also against the individual defendants in their Eugene McQuillen, The Law Munici capacities proceed individual must outside (3d 12:269, at 400-13 pal Corporations the Iowa Tort Act until such time Claims rev.vol.2011). ed. the fact finder establishes that at time actions, attends a board alleged example, judge the individual defen For meeting protests supervisors dants were action, lot near his or her employment. Generally placement hog in a tort doing hog so defames the property the fact finder decides whether an act is owner, fisc should not be employee’s scope employ lot Edwards, pay responsible judge to defend ment. See Godar v. 588 N.W.2d (Iowa 1999). However, if the damages judge hog on behalf of that the State *9 against scope employment, in his suit of his or her the court lot owner is successful judge. public The reason the fisc is the cannot substitute the State as the defen- judge that when the made not at risk is dant until the court determines the em- remarks, alleged defamatory he she the ployee scope acted within the of his or her scope within the of his or acting was not Otherwise, employment. the attorney employment. her general provide could a certification when the employee acting was not the within Second, requires the the Iowa Code scope of his or her and put defend, harm- indemnify State to and hold public the fisc at risk it when has never any whose tort was commit- employee less previously been at risk. in the employee acting ted when the was scope employment. of his or her In summary, question where a of fact Moreover, previ- 669.21. we have employee’s exists as to whether a state duty to is broader ously held defend “[t]he scope actions were within the of his or her duty indemnify.” than the First New- employment, employee the state is going Wis., ton Nat’l Bank Gen. Cas. Co. of defended, to be indemnified and held (Iowa 1988). 426 N.W.2d When a harmless from damages and should employee state is sued and the employee not fear that his or her personal assets will per- contends the suit arises out of actions risk, finally be at unless it is determined scope employ- formed in the employee’s employee acting was outside scope ment, employee should deliver the suit employment. of his or her aWhen state attorney general and ask the papers employee acts outside scope of his or indemnity State for under 669.21. section employment, her the employee should be requires Section 669.21 the State to indem- responsible for the fees and the nify the employee was damages, public not the fisc. acting scope employ- of his or her Thus, For these reasons we ment. See Iowa Code 669.21. un- hold earlier, general’s certification under example der the discussed if the Iowa Code 669.5(2)(a) allegedly same judge defamatory applicable makes section is not statement an individual and a Godfrey’s claims that the individual defen- question exists as to whether he or she scope dants were outside the scope made statement of his or circumstances her employment, duty the State has a employee’s where the actions are not with- defend, indemnify and hold harmless the of their employment, pub- judge finally until such time as it is deter- lic pay fisc should not be used to for that judge’s mined a court the were actions employee’s damages defense or awarded a outside the her his or party employee’s third for that actions. ment.4 legislature has never authorized the expenditure pay funds to for the dispute
When there is no factual as to acts of its when done outside whether was of their employment. We are of his or her Therefore, going today. to do so God- procedure relieves the em- ployee frey may proceed on these claims liability substituting However, individually the defendants until the State as the defendant. such time it dispute when a factual exists as to whether is determined the defendants were act- ing defending judge through any appeals. 4. This would include *10 Disposition. employees to extricate state from dure Conclusion VII. arising performance from the lawsuits Tort Claims Act hold the Iowa We 669.5(2)(certi- §§ their duties. Iowa Code by state em- torts committed applies to (de- (immunities), fication), 669.14 669.21 the acting within when ployees The intent of the indemnity). fense and Therefore, the certifi- employment. their to allow our state legislature was 669.5(2)(a) do of section provisions cation jobs without fear of the ees to do their employees commit a when state apply not distraction, personal risk of expense, scope of their acting outside the tort when by financial ruin caused lawsuits. the holding upholds employment. This only spares public not Certification relieving state em- by of the Act purpose judg- personal official the risk of a ruinous liability if their tort is ployees ment, defending but also costs they when were committed “ reflected, T famously lawsuit. As Voltaire At the their when I was never ruined but twice: once time, public holding protects our same ” lawsuit, and once when I won one.’ lost State making does by fisc sure Co., Daly & Sur. v. Leo A. Aetna Cas. Co. damages costs or pay any have to defense (S.D.Iowa 1994). 925, 941 F.Supp. by committed state arising out of a tort today, per- our officials sued public Until of their acting outside quickly could sonally doing jobs defending upon avoid the cost of the suit judgment of the district We reverse the attorney general’s certification that the State in counts VI substituting court they were within their of em- dismissing counts X through XVI and however, majority, The re- ployment. entirety. in their We remand through XV scope-of-em- case to have the mands this back to the district court to allow the case determined the fact ployment issue whether the indi- the fact finder to decide finder, jury. Significantly, under the actions were within the vidual defendants’ majority’s interpretation, plaintiff suing these sidestep state official can counts. general’s merely by alleging certification (cid:127) REMAND- AND CASE REVERSED brought against the claim defendant ED. By her capacity.” his or “individual alleging simple phrase, justices except All concur WATERMAN for ongo- could be denied indemnification MANSFIELD, JJ., who dissent. effect, majority ing defense costs. WATERMAN, (dissenting). loophole creates an anticertification Justice plaintiffs substitutes counsel for attor- for the reasons respectfully dissent ney to make the determination general dissent, articulated in Mansfield’s Justice whether the defendant join. separately which I I write to elabo- the lawsuit at his or her own must defend purposes rate on the behind the So now the state defendants are expense. and the general procedure likely personally entangled to remain statutory immunities undermined costly litigation way through all the trial. majority today. legislature provided majority protecting from asserts it is public our officials certain immunities treasury by sparing Tort Act fisc our state suit under the Iowa Claims (ITCA), (2011), defending naming pub- lawsuits ch. 669 and a cost capacity. in their proce- lic officials individual straightforward, simple certification *11 case, But, of a In this for example, decides at the threshold who “false, making has sued the Governor for the state was lawsuit whether defamatory organiza- statements to news of his or her em- acting within tions, including WHO-Radio and WHO- General, Attorney to Iowa ployment —the TV,” wherein the Governor “blamed Plain- entrusted this deter- legislature whom the tiff rising compensation for workers’ costs Godfrey’s attorney, based mination? Or for Iowa businesses.” impor- Because it is in unproven allegations petition? on public tant officials to communicate likely protect public to Who is more public, with the it has been the law for the attorney general, fisc? The who is elected fifty years last that defamation claims are by people of Iowa and accountable to any not available public official a private lawyer the voters? Or for a who in capaci- was his or her official suing claimant the State and state ty. attorney general, indepen- after ees, attorney fee is on a contingent whose matter, dently reviewing the found that monetary recovery and increases with the the Governor was in his official or size of the verdict settlement? With capacity when he went on the radio and reason, good legislature our enacted the television to make these statements. The procedure empower the at- defamation claims were therefore dis- issue, torney general to decide the with missed, with the plaintiff being free to judicial review limited to cases where the pursue his constitutional and discrimina- attorney general refuses certification. See However, tion claims. the plain- because 669.5(2); see also id 13.2 allegation tiff included a bare attorney general).5 of (defining duties Governor acting “individually and in his official capacity,” majority now predict consequences today’s strips attorney general of his authori- hamper job performance decision will be to ty, revives the plaintiffs defamation by good state officials and to deter people claims, puts posi- and the Governor in the Why public govern- from service. take a having tion of to defend them. job your personal savings ment be could in Why give negative job lost a lawsuit? strong This will create a incentive for performance you evaluation of someone su- public up partici- officials to clam and not pervise you if he can sue personally for pate in press conferences or allow media way defamation and take that case all the interviews. Is this what we want? Is it to trial? what the It legislature intended? should relevant, pro- 5. As Iowa Code section 13.2 c. Prosecute and defend all actions and vides: proceedings brought by against any or state duty 1. It shall be the capacity. officer in the officer's official general, except provided by as otherwise d. Prosecute and defend all actions law to: proceedings brought by against any or em- a. Prosecute and defend all causes in ployee judicial department of a district appellate courts which the state is a performance correctional services in the party or interested. an assessment of risk. b. Prosecute defend other opinion writing, Give e. when re- tribunal, proceed- court or all actions quested, upon questions all of law submit- criminal, ings, civil or in which the state by general assembly by ted or either interested, when, may party abe or thereof, officer, by any house or general’s judgment, the interest of Questions appointive. elective or submitted action, requires the state such or when re- public state officers must be of a nature quested governor, to do executive so council, general assembly. and relate of such duties officer. (recognizing importance protect- in this case 98 decision be noted liability). in- officials from government, ing school all branches of applies to assembly. general cluding members likewise have echoed Federal courts the safe- sidestep Allowing plaintiffs officials: immunity importance will procedure the certification guards of willingness of immunity protect effect on the is to chilling purpose have a *12 about questions providing to answer interest in such state officials societal “[t]he The legislation. pending ability official actions or officials with the maximum public will be less majority opinion price of with fearlessly impartially to deal and in our state openness transparency point The public large.... government. to forestall immunity for such officials is intimidation that atmosphere the admonitions majority ignores The per- their resolve to would conflict with years ago a few just our court reiterated in a designated functions form by im- served important purposes on the principled fashion.” public employees: munities for Rossello, 296, Dia, F.Supp.2d v. El Inc. law, recognized public at common As (D.P.R.1998) (quoting (immu- 301 Clinton protection require [ officers Jones, 681, 693, 1636, 117 S.Ct. U.S. inter- nity) to shield them from undue ] (1997)), 1644, 945, 960 El 137 L.Ed.2d po- with their duties and from ference aff'd (1st Dia, Rossello, 106, 108 Inc. v. 165 F.3d liability. tentially disabling threats of Cir.1999). Supreme Court Wisconsin there is the protection, Without such underly public policies on the elaborated will danger being that fear of sued immunity public officials: ing all but the most dampen the ardor of resolute, irresponsible, pub- most been various- These considerations have discharge unflinching lic officials in the (1) follows: ly identified cases as of their duties. influencing officers danger public by of their functions performance Pelecky, Hlubek v. 701 N.W.2d (2) lawsuit; threat of the deterrent (Iowa 2005) (citations omitted) (internal personal effect which the threat of liabil- omitted); quotation Hook v. Tre- marks cf. who are ity might have on those consid- vino, (Iowa 2013) 434, 444 839 N.W.2d service; (3) public ering entering (“We equally find it self-evident that the by drain on valuable time caused such immu- purpose [volunteer of section 669.24 (4) actions; subjecting the unfairness of nity] provide encourage people is to personal liability for the acts officials to by removing volunteer services to the state (5) subordinates; feeling personal liability.”). the threat of The cer- procedures that the ballot and removal accompanying tification im- procedure and appropriate dealing are more methods of help munities our state officials execute with misconduct in offic[e]. being their duties without intimidated liability. threat of We should 282, 240 Regents, Lister v. Bd. 72 Wis.2d pur- effectuate that interpret ITCA to (1976). the fore- Each of pose, not undermine it. See Harden v. by to- public policies is undermined going 1989) State, (Iowa 881, 884 434 N.W.2d day’s majority decision. (“We interpretation seek a reasonable correctly upheld the The district court purpose will best effect Hlubek, [ITCA]....”); this case attorney general’s 701 N.W.2d at cf. ITCA, and dismissed the relevant are allowed under the the em- ployees are conclusively I would affirm. deemed to personally. defendants have acted within the scope MANSFIELD, J., joins this dissent. defendant, State is substituted aas the State is bound employees’ ac- MANSFIELD, (dissenting). Justice pay tions and has to the bill for them. See respectfully majority’s dissent. The 669.5(2)(a), hand, §§ id. .21. On the other understanding of the Iowa Tort Claims Act respect with to tort claims that are not plaintiff argued, contrary is not what the allowed under the ITCA because the State statute, language and is un- hasn’t waived sovereign immunity, practical workable as a matter. If we freely argue can the inconsistent argument consider the that Christopher position were not made, Godfrey actually both here and be- acting within the scope of their office or low, I think the district court made the *13 Furthermore, plaintiff the decision, right and I would affirm. can take this position inconsistent without any repercussion, because the State is irre- Majority’s Reading
I. The of the vocably on the hook for the covered claims. Iowa Tort Act. Claims See id. begin majority’s Let me with the read- Now, might say one that a shrewd attor- (ITCA). ing of the Iowa Tort Claims Act ney general could refuse to make a certifi- According to the majority, plaintiff who cation, thereby keeping his or options her brings against an action employees state open. because, But this won’t happen in need add to the caption case that each event, the peti- defendants would file being is named “individually and tions asking they the court to find were in capacity.” his official [or her] This acting within the of their employ- small insertion then a way becomes for the 669.5(2)(6). § ment. See id. And assum- plaintiff to have all the benefits of the ing grants the court petitions, the avoiding ITCA while its adverse conse- plaintiff again would have the best of both quences. worlds. He or she would be able to argue defendants were not within the
Having used the “individual and official” scope of their employment office or with language caption, plaintiff the case claims, respect to uncovered tort while gets the ball rolling submitting the benefiting prior from a conclusive determi- board, dispute entire appeal state as nation that respect with to covered tort the plaintiff did here. See Iowa Code they were 669.3(2)-(3) (2011) § (instructing plaintiff their office or to file a claim with the director of the department management and granting I disagree that the ITCA establishes claims). state appeal authority board over such a proposition no-lose for the plaintiff, Assuming the rejects board the claim or long so plaintiff as the is astute enough to act, court, plaintiff doesn’t go can include six caption— words the case 669.5(1). plaintiff § did here. id. See “individually and in his official [or her] capacity.” Next isup attorney certification. If the
general certifies the defendants were majority’s position state While the is a no-lose employees acting plaintiff, for the it ais lose-lose for the office or plaintiff gets defendants. getting early Instead of an best of both any way worlds. As to tort claims determination one or the other that of action. See Iowa Code by vidual causes not be covered will or will liability Thus, requires § first 669.5. ITCA State, hanging are left be filed “claim made under” the Act to with re- summary judgment trial or
until management. See department with the claims. Until the uncovered spect to the 669.3(2). board acts appeal § Once the verdict, issue id. if there jury renders a claim, or in the event the board fails on the fact, they going know if are they won’t months, may plaintiff within six their own to act damages out of pay have to for the “claim.” See id. bring a “suit” pockets. 669.5(1). triggers This Actually Works: II. How the ITCA power. See id. general’s Options. Two The Plaintiffs 669.5(2)(a). can general certify a defendant in the “suit” then view, wrong. believe my this is employee acting a state works like this: straightforward law is office or employee’s he or she has been A who believes upon the incident ment at the time of employee acting out- by a state wronged id. If that which the claim is based. See always has side-the occurs, “the suit” shall be deemed be a stand-alone law- option bringing State, action and the State going without suit as the defendant shall be substituted proce- notice presuit through ITCA Let employee. See id. me place event, the burden shifts to dures. In that *14 language the of the subsec- quote entire he or she acted the defendant to show tion: and there- employment within the of by the
fore the claim or claims are covered by attorney gen- the Upon certification Gavin, See, e.g., ITCA. Thomas eral that a defendant in a suit was an (Iowa 2013); see also 519-20 of the state 669.2(3) (4) (defining “claim” Iowa Code office or employee’s of the — of the “employee the ITCA and covered upon ment time of the incident at the state”).6 based, which the suit com- the claim the claim shall be deemed upon menced hand, plaintiff the On the other should to be an action the state under notice presuit choose to follow the ITCA provisions chapter, the of this the upon then file suit based procedures defendant, already state is not notice, plaintiff subject that becomes state shall be substituted as the defen- with re- attorney general’s certification place employee. dant of spect to the entire suit. Id. my compels view this statute short, oper- In certification by making quite process it clear that interpretation it, “suit[s],” suit,” merely of part not indi- ates on “the as applies defendants, Fish, Thomas, gross university employee filed a example, a state 6. going negligence coemployees, whom the had sued without claim several through procedures, moved for sum- ITCA going through procedures. without ITCA See mary judgment. at 519. The See 838 N.W.2d (Iowa 2010). The State 790 N.W.2d granted summary judgment, district court brought a motion to dismiss on behalf employees finding were of that the defendants coemployees on failure to exhaust ad- based plaintiffs’ that the claims fell State and remedies, which the district ministrative of the Act. Id. at 520. We within ultimately denied. Id. We reversed the court ultimately grant summary reversed the Id. at 121. denial of the motion. judgment. Similarly, in at 527. McGill v. Id. transcript appellate argument concludes. id. Certifica- of the- oral majority See ceasing Godfrey previously also confirms that sub- in the state tion results defendant,” everything appeal mitted to the state just rather than re- to be “a board.8 parts from some moving case, would have it. majority as the reasons, For these I believe that See id.7 attorney general’s certification affects the except entire suit for the rights civil Applying Principles Here.
III. Those claims. It results state Here, Godfrey petition naming filed a longer being no defendants to tort includ- employees, the State and six state claims, 669.5(2)(u) exactly pro- as section and Lieutenant Gover- ing the Governor Godfrey vides. And has not heretofore nor, body peti- defendants. The Instead, disputed point. position his alleged tion various acts and causes of in the district and this court court was that action, did not indicate whether or not but attorney general’s certification was not the defendants were judicially conclusive and could be reviewed. employment of their office or when example, application For his for interlocu- they committed those acts. As noted tory review asserted as follows: above, caption listed each defendant respectfully requests Plaintiff words, “Individually followed and in grant interlocutory Court review of the Capacity.” His Official [or Her] District ruling Court’s and find that an court,
Before bringing petition attorney general’s certification in accor- Godfrey entirety submitted it in its dance Chapter with Iowa Code 669 is appeal petition board. The amended not conclusive as to whether the state recites, actually says this. It “On Janu- defendants were within 9, 2012, ary years purposes two the acts complains, judicial which he with Plaintiffs claims and that review Plaintiff filed Appeals the State Board a State Tort necessary such certification is *15 instance, damages proper Act claims the herein Claims the first with the for against the above-named state DE- sought question matter submitted as a of fact jury.9 FENDANTS and the State The for the IOWA.” resolution of recognize employee you 7. I the state would re- JUSTICE MANSFIELD: Did include rights a defendant main to the extent civil including all of the claims the defamation claims are asserted him or her under and extortion? Madison, chapter 216. See Vivian Yes, sir, MS. CONLIN: I did. (Iowa 1999) (“The legisla- you JUSTICE MANSFIELD: So when 'person' 'employ- and ture's use words say you bring didn’t it under the Iowa Tort 216.6(1), throughout er' in section and the Act, you Claims followed the Iowa Tort chapter, indicates a clear intent to hold procedure, Act Claims would that be fair. 'person' subject liability separately to absolutely MS. CONLIN: I followed the apart liability imposed from the on an 'em- procedure Iowa Tort Claims Act before "). ployer.' That is those are because claims just went to court in case. governed by separate regime administrative subjects supervisory employees who com- following excerpt 9.Consider also from wrongful mit discrimination to lia- court, argument oral before this where the bility. Id. Godfrey's court and counsel discussed the gave pre- possibility might 8. JUSTICE MANSFIELD: You that certification not affect suit notice— Godfrey’s capacity individual "common law’’ MS. CONLIN: I did. claims: Iowa Code chapter. of this Attorney provisions General’s Certifi- Is
IV. 669.5(2)(a). removed employee The is Reviewable? cation case, be and the State “shall” from the Godfrey question that I now turn Id. substituted. whether actually argued i.e.,— judicially reviewa- is general’s certification benefits for system has This evenhanded the well-rea- I would follow Here ble. The knows once plaintiff. plaintiff States District of the United opinion soned of with billions for all that a defendant Iowa. District of the Southern Court assets, i.e., State, pay will dollars Regents, Bd. v. Iowa See Mills Following prevails. if she the bill he or of 2011). (S.D.Iowa As F.Supp.2d certification, has to plaintiff longer no demonstrates, legislature the Iowa opinion de- proving about that a worry particular final effect to the give intended to employment. fendant acted under the ITCA certifications general’s for the em- system also has benefits acting in the were that state is removed from employee ployee. id. at employment. See scope of their an individual defendant and the lawsuit as 994-96. has bene- subject liability. to And it kinds of fits for the State. Certain unfairness way in no works system This e.g., some but not all of the noted, a claims — already I have plaintiffs. As on pursued. be in this case—cannot option suing always has the plaintiff on an outside the ITCA employee state 669.5(2)(&), I’ve al- section as Under not act- allegation that the was mentioned, ready attorney general if the ing in the of state that a refuses to make a certification state position in the puts This employee was the satisfaction of an having prove to may his or her defendant court that the Iowa district court ... for the court to find “petition the an em- certify that the defendant was Godfrey here chose not exercise ployee of the state and was option. of the defendant’s office or em- 669.5(2)(6). However, hand, Id. plaintiff, ployment.” On the other ITCA, here, provision allowing proceeds under the then the there is no process play. petition comes into the court review attorney general’s certification. As again wording Note section 669.5(2)(a). out, the existence of a attorney general pointed Mills court When *16 allowing ju- section 669.5 provision certifies that a defendant was a state em- request review at the of the defen- ployee acting of state dicial powerful is a indicator that the employment, the suit “shall” be deemed dant judicial intend to allow against legislature an action the State under the did not be true, you that would be Do think that MS. CONLIN: I think JUSTICE WIGGINS: say your this Court could causes of your Honor. action and the five or six counts are last Then the burden JUSTICE WIGGINS: Tort Claim Act if— barred under the State you it was outside the would be on to show say there is no review of the certification employment in those other course of their agree argument and we with Mr. LaMarca's actions? review, say final as and we there is no it’s Yes, Honor, your and I MS. CONLIN: Act, couldn’t we to the State's Tort Claim thought that when I wish I would have say also that as to common law action I did court but not. was in district it would not be final after review? plaintiffs management certification at the claim with the director of review of a (“This at 995-96 under the ITCA is extended. See request. F.Supp.2d (Iowa 2013). clear that if the Iowa N.W.2d 725-26 provision makes provide ju- intended to for legislature had Godfrey really So what wanted here was Attorney review over the General’s dicial review, judicial a second mechanism for certification, certainly it knew how to do provided by one not Iowa law. I would n 3.2 n deny that effort. so.”); also v. Section see Chiodo I think section 669.5 is Panel, 845, 858-59, 846 N.W.2d 2014 WL very attorney general clear. If the makes (Iowa 2014) (plurality opinion) (ap- certification, the action “shall” be plying principle). against deemed the State and the State “shall” be substituted. glance, might On first seem unfair 669.5(2)(a). A denial of certification is plaintiff. get The defendant can request employee, reviewable at the judicial plaintiff review but cannot. consideration, provision but there is no for thorough on a more it review of a But certification. Again, plaintiff isn’t. believes the in
individual defendant was not The Federal Y. Precedents Under of state the Westfall Act. always garden-variety can file a lawsuit against that defendant in state court. Godfrey argues that we should follow go That lawsuit will forward Supreme the United States Court’s inter- defendant, unless individual the defendant Act, pretation of the Westfall 28 U.S.C. way 2679(d)(1) in some asserts the applica- (2012), ITCA is which part ble. The defendant’s contention that the system. federal tort claims He cites applies upon by ITCA would then be ruled Walker v. State for that proposition. 801 See, Thomas, (Iowa 2011). e.g., the court. 838 N.W.2d Walker, N.W.2d 548 inYet- 519-20; State, Minor v. 819 N.W.2d although interpreting provision we were cf. 2012) (Iowa 383, 405 (finding that a claim of the that had the wording ITCA same department of human services (FTCA), the Federal Tort Claims Act employee was 2671-80, barred failure to exhaust §§ U.S.C. we did not follow the ITCA, administrative remedies under the Supreme interpretation. Court’s See 801 though even was sued indi- Instead, at 565-66. we followed a vidually). separate opinion written Justice Scalia concurring in the judgment only. See id. words, In other a plaintiff who believes (noting that Scalia sepa- “Justice wrote not acting defendant was rately disagreement to voice his with the of his or her state can analysis employed by majority” always get judicial determination of that concluding analyses] “our prior our dis- plaintiff simply issue. The has to sue cretionary function cases more in line [is] capacity defendant his her individual analysis”). short, with Justice Scalia’s court going through without Walker was a case where we did not track Yet the plaintiff gets ITCA. news majority views of the United States *17 even better. our in Under recent decision Supreme interpreting in Court Iowa’s own Center, Rivera v. Woodward Resource tort act. plaintiff guesses wrong even if the and a judge event, later determines the any defendant was what we have said is that acting guided by within the of state we are interpretations of the ment, filing wording the for “when the plaintiffs deadline FTCA of the two Acts
596
Thomas,
any time before
employee may
at
838
similar.”
or
is identical
certify
the court to find and
petition
trial
it
In Thomas Walker
at 525.
acting
was
within
that the
Walker,
Id.;
N.W.2d at 565-66.
was.
scope of his office or
not.
Here it is
court,
by the
Upon such certification
ITCA,
Act, unlike the
has
The Westfall
proceeding shall be
such action or
that the attor-
providing
language
separate
proceeding
to be an action or
deemed
is “conclusive”
certification
ney general’s
against the
States under
brought
United
remov-
namely
in
one circumstance—
and all refer-
provisions
title
follows:
part
relevant
It reads in
al.
thereto, and the United States
ences
(1)
Attorney
by
certification
Upon
defen-
party
as the
shall be substituted
the defendant
General
dant.
of his office
was
added).
2679(d)
(emphasis
28 U.S.C.
the inci-
at the time of
employment
or
Thus,
that certi
by specifically stating
arose, any
the claim
out of which
dent
in
context of
is conclusive
fication
proceeding commenced
civil action or
removal, the
Act allows for an
Westfall
in a
States dis-
such claim
United
upon
attorney general’s
inference that
deemed an action
court shall be
trict
in
is not conclusive
situa
certification
pro-
States under the
against the United
tions other
than removal.
ITCA
and all references
of this title
visions
comparable language.
no
contains
thereto,
be
and the United States shall
“conclusively” language
presence of the
party
defendant.
substituted as
Supreme
critical to the
Court’s de
was
(2)
Attorney
Upon
by
in
de Martinez
Lam
cision Gutierrez
General
the defendant
417, 438-34, 115
agno. See 515 U.S.
office
of his
375,
2227, 2235-36,
L.Ed.2d
S.Ct.
at the time of the inci-
employment
or
(1995).
language
That
made the
388-90
arose, any
dent out of which the claim
“reasonably susceptible
diver
statute
proceeding
action or
commenced
civil
and thus allowed
gent
interpretation”
in a State court shall be
upon such claim
interpretive
the Court
to follow
be-
removed without bond at
time
principle “that executive determinations
Attorney
trial
General to the
fore
subject
judicial
review.”
generally are
for
district court of the United States
at
Id.
S.Ct.
embracing the
the district and division
L.Ed.2d at 390.
proceeding
in
the action or
place which
pending.
proceeding
Such action or
Notably,
justices
four
dissented Lam-
pro-
be deemed to be an action or
shall
plain reading
that “a
agno
said
ceeding
the United
brought against
judicial
review of
text” did not allow
this title
provisions
States under the
certification that the
attorney general’s
thereto,
and all references
Unit-
defendant was
as the
ed States shall be substituted
Id. at
his or her federal
party defendant. This
439-40,
2238-39, 132 L.Ed.2d
115 S.Ct. at
certification of
conclusively
Attorney
General shall
(Souter, J., dissenting). But for
at 392-94
employment
establish
or
as the district court em-
present purposes,
office
removal.
purposes
Mills,
only focus on
we need
phasized
(8)
between the ITCA
Attorney
the relevant differences
In the event
majori-
revealed
scope of
and federal law as
certify
General has refused to
Mills,
section,
ty opinion
Lamagno.
under this
office
*18
of Lamagno
994-95. As the Mills court
facts
this
F.Supp.2d at
illustrate
Colombia,
Late at
in
point.
night,
South
it,
is the final sentence of the
put
“[I]t
America,
by
allegedly
a car driven
in
2679(d)(2)
§of
that cre
provision
removal
toxicated
enforcement
drug
agent ran into
ambiguity in the framework of the
ates an
420-21,
plaintiffs
vehicle.
U.S.
statute,
judicial
leaving
open
it
federal
2229, 132
115 S.Ct. at
L.Ed.2d at 381. The
(citing Lamag
interpretation.”
Id. at 995
agent
sued the
in the
plaintiff
United
no,
434,
2286, 132
Attorney certify General could Still, Lamagno me leads to two addition- judge federal regarding majority al observations thereby my me of depriving all, opinion. majority First of if the is because, cause of action under both the right, then the entire United States Su- FTCA, ITCA and the defamation claims in preme Lamagno. Court missed the boat short, judicial are not available. review In a case where the maintained plug poten- of certification is needed to a defendant had not been reviewability sys- tial hole in the federal government employment, of his system.10 tem, many pages debating but not in the state Justices devoted a id., ("When acknowledge Supreme I the Alaska 10. at 1085-86 a lawsuit is filed Lamagno holding 09.50.253(c) Court followed that a employees, AS al- attorney general Alaska Attorney lows the General to determine counterpart Act under Alaska’s to Westfall individually whether the named defendants judicially Heisey, is reviewable. See State v. were (Alaska 2012). 271 P.3d 1088-91 I during giving ment the conduct rise to the ITCA, Lamagno apply believe does not lawsuit.”). Further, while the Alaska court already explained. Re- for the reasons have review, recognized right judicial it em- gardless, Supreme the Alaska Court did not phasized performed that the review should be my colleagues’ embrace view that certifica- court, by jury, always and should tion can never when occur a state occur before trial. See id. at 1090-91. capacity. named his or her individual See *19 598 It way. i.e., important, practical in an ployees the At whether fighting
single
issue —
ju
attorney general’s
could be
by assuring
does so
General’s
torney
My colleagues
certification,
plaintiff,
not.
challenged by
or
if
reviewed
dicially
effort. So
this was wasted
“the District Court.”
indicate
will be reviewed
contained some alle
complaint
436-37,
long as the
115
Lamagno, 515 U.S. at
S.Ct.
being
was also
contrast,
the defendant
gation
2237,
By
lowing the ITCA Godfrey Regardless,
lature intended. day in on still have his full court
would constitutional discrimination that are the core of his lawsuit.
WATERMAN, J., joins this dissent. *22 A.J.M.,
In the Interest of Minor Child. Iowa, Appellant.
State of
No. 12-2310.
Supreme of Iowa. Court
June 2014.