CHRISTOPHER J. GODFREY v. STATE OF IOWA; TERRY BRANSTAD, Governor of the State of Iowa, Individually and in His Official Capacity; KIMBERLY REYNOLDS, Lieutenant Governor of the State of Iowa, Individually and in Her Official Capacity; JEFF BOEYINK, Chief of Staff to the Governor of the State of Iowa, Individually and in His Official Capacity; BRENNA FINDLEY, Legal Counsel to the Governor of the State of Iowa, Individually and in Her Official Capacity; TIMOTHY ALBRECHT, Communications Director to the Governor of the State of Iowa, Individually and in His Official Capacity; and TERESA WAHLERT, Director, Iowa Workforce Development, Individually and in Her Official Capacity
No. 12-2120
Supreme Court of Iowa
June 6, 2014
Robert A. Hutchison, Judge.
A claimant under the Iowa Tort Claims Act appeals a district court decision dismissing some of his claims. REVERSED AND CASE REMANDED.
Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, for appellant.
George A. LaMarca, Andrew H. Doane, and Phillip J. De Koster of LaMarca & Landry, P.C., Des Moines, for appellees.
A plaintiff brought an action against the State of Iowa and individual defendants. The plaintiff named the individual defendants in their official and individual capacities. The attorney general certified under
On appeal, we hold the attorney general‘s certification is not applicable to plaintiff‘s common law claims alleging the individual defendants acted outside the scope of their employment. Therefore, we remand the case back to the district court to allow the fact finder to decide whether the individual defendants’ actions were within each individual‘s scope of employment.
I. Background Facts and Proceedings.
Christopher J. Godfrey is the workers’ compensation commissioner. In 2009, Governor Chet Culver appointed him to this position for a six-year term. Godfrey‘s term expires on April 30, 2015. Prior to July 2011, Godfrey‘s salary was $112,068.84.
On December 3, 2010, Governor-elect Terry Branstad demanded Godfrey‘s resignation. Godfrey refused. After Godfrey‘s refusal to resign, Godfrey alleges he had a meeting with the chief of staff to the governor, Jeffrey Boeyink, and the legal counsel to the governor, Brenna Findley, in which these individuals attempted to intimidate and harass him into
In response to these actions, Godfrey filed an amended petition alleging causes of action against the State of Iowa; Terry Branstad, Governor of the State of Iowa, individually and in his official capacity; Kimberly Reynolds, Lieutenant Governor, individually and in her official capacity; Jeffrey Boeyink, chief of staff to the governor, individually and in his official capacity; Brenna Findley, legal counsel to the governor, individually and in her official capacity; Timothy Albrecht, communications director to the governor, individually and in his official capacity; and Teresa Wahlert, director of Iowa Workforce Development, individually and in her official capacity. The counts relevant to this appeal are counts VI through XVI: procedural and substantive due process claims against all defendants under the Iowa Constitution for Godfrey‘s property interest in his employment; procedural and substantive due process claims against all defendants under the Iowa Constitution for Godfrey‘s liberty interest in his reputation; an equal protection claim against the State under the Iowa Constitution; interference-with-contract-relations claims against the individual defendants; interference-with-prospective-business-advantage claims against the individual defendants; defamation claims against defendant Reynolds, defendant Albrecht, defendant Branstad, and defendant Boeyink; and extortion claims against defendant Findley and defendant Boeyink. By bringing his suit against defendants individually and in their official capacities, Godfrey joined his claims against the individual defendants with his claims against the defendants in their official capacity. See
The Iowa attorney general provided a certification pursuant to
Godfrey resisted the motion on two grounds. First, he argued the individual defendants were not acting within the scope of their employment, and therefore, were not subject to substitution based on the attorney general‘s certification under
The district court held a hearing on the motion to substitute. At the hearing, the district court asked Godfrey‘s trial counsel if Godfrey was resisting any of the counts discussed in the partial summary judgment motion. Counsel responded as follows:
MS. CONLIN: I don‘t think so, Your Honor.
We also agree that claims for prejudgment interest and punitive damages are not proper against the State, but we don‘t think we ever pled them against the State. And if we did, that was a mistake. So this depends on the Court‘s ruling as to the individual defendants.
In paragraph 4 –incidentally, Your Honor, paragraph 4 of our resistance we withdraw those claims, but I don‘t think we want to withdraw them as to the individual defendants.
MS. CONLIN: . . . . And so it seems to us that we can maintain claims for prejudgment interest and for punitive damages against the individual defendants insofar as they are still parties to this proceeding.
And if I may say, Your Honor, in connection with our earlier motion, what the State says is that a state employee is for all times and all purposes cloaked with immunity for things like assault and battery. So if a state employee goes out at lunch, it‘s a business lunch, and gets into a quarrel and knocks somebody down, the State says they are immune. And I say they are not.
. . . .
MS. CONLIN: I think the State‘s position on this is just untenable, and a state employee is a state employee when he or she is acting in the scope of employment, but not otherwise.
Trial counsel‘s statements identify a distinction between the claims Godfrey made against the defendants in their official capacities, i.e., in their scope of employment where the court could properly substitute the State, and the claims Godfrey made against the defendants in their individual capacities.1
Subsequent to the hearing, the parties agreed the district court should dismiss counts X through XV in their entirety if (1) the district court granted the defendants’ motion to substitute the State of Iowa, (2) the district court found against Godfrey on his claim that substitution of
Godfrey applied for an interlocutory appeal, asking us to review the district court‘s ruling to allow substitution and its dismissal of counts X through XV in reliance on the attorney general‘s certification. We granted the application.
II. Issues.
The only issue on appeal is whether the attorney general‘s certification pursuant to
III. Standard of Review.
Godfrey argues the district court‘s finding was an improper statutory interpretation and this interpretation violated the Iowa Constitution. We review a district court‘s statutory interpretation for correction of errors at law. See City of Postville v. Upper Explorerland Reg‘l Planning Comm‘n, 834 N.W.2d 1, 6 (Iowa 2013).
The doctrine of sovereign immunity originally prohibited tort suits against the State of Iowa. Hansen v. State, 298 N.W.2d 263, 265 (Iowa 1980). Sovereign immunity also applied to governmental subdivisions. See, e.g., Canade, Inc. v. Town of Blue Grass, 195 N.W.2d 734, 736 (Iowa 1972) (recognizing the rule of governmental immunity applied to a claim of negligence against a municipality). This immunity was jurisdictional; thus, the courts lacked jurisdiction over tort actions against the State or its agencies. Lloyd v. State, 251 N.W.2d 551, 555 (Iowa 1977). In 1965, the general assembly enacted the Iowa Tort Claims Act and thereby waived the State‘s sovereign immunity for certain tort claims against the State. See 1965 Iowa Acts ch. 79 (codified at
However, prior to the waiver of sovereign immunity under the state and municipal tort claims acts, an individual could maintain a cause of action in tort against a government employee in his or her personal capacity. See Montanick v. McMillin, 225 Iowa 442, 459, 280 N.W. 608, 617 (1938). In Montanick, a plaintiff sued a Wapello County employee for monetary damages resulting from a car accident in which the employee was driving a municipal vehicle. Id. at 444–46, 280 N.W. at 609–10. The plaintiff voluntarily dismissed a cause of action against Wapello County and proceeded only against the employee in his individual capacity. Id. at 446, 280 N.W. at 610. We noted the employee‘s liability did not relate
We then identified a claim against an employee as involving potentially two separate actions. Id. at 453, 280 N.W. at 613–14. We recognized under the principle of respondeat superior a party could sue both the servant and the master. Id. This was an additional remedy to an injured party. Id. Thus, in theory an injured party could sue both the employee and the employer, though at this time if the employer was a governmental body, the employer was immune from suit. See id. at 453, 280 N.W. at 614. However, the exemption of governmental bodies from liability due to sovereign immunity did not extinguish the primary remedy that a person “who wrongfully inflicts injury upon another is liable to the injured person for damages.” Id. at 453, 280 N.W. at 614. We stated, “[p]ublic service should not be a shield to protect a public servant from the consequences of his [or her] personal misconduct.” Id. at 455, 280 N.W. at 615. We also stated, “this general obligation to injure no man by an act of misfeasance is neither increased nor diminished by the fact that the negligent party is an employee of a municipal corporation.” Id. at 458, 280 N.W. at 616. We subsequently held “an employee of a city, county or state who commits a wrongful or tortious act, violates a duty which he owed to the one who is injured, and is personally liable.” Id. at 459, 280 N.W. at 617.
We applied the same reasoning to a claim against a state employee. Johnson v. Baker, 254 Iowa 1077, 1086–89, 120 N.W.2d 502, 507–09 (1963). In Johnson, we cited a Drake Law Review article as properly summarizing the law in this area. Id. at 1087–88, 120 N.W.2d at 508. The article examined governmental immunities and came to the following conclusion:
In summary, if the individual employee is engaged in a ministerial act he may or may not be liable for his own negligence. The employee can escape liability under a cloak of governmental immunity in such cases only if: (1) the activity is within the scope of the acts which he is authorized to perform, and (2) the negligence is a matter of nonfeasance. He may be held liable for his own negligence if: (1) the act was not within his scope of authority, or (2) for an act of misfeasance even if it is within his scope of authorization.
J. Robert Hard, Liability of Public Bodies, Officers, and Employees — Governmental Immunity, 11 Drake L. Rev. 79, 106 (1962). We have never applied sovereign immunity where state employees commit a tort when acting outside the scope of their employment.
After the enactment of the state and municipal tort claims acts, we continued to apply the rule that an employee can be liable for acts outside the scope of his or her employment. See, e.g., Roberts v. Timmins, 281 N.W.2d 20, 24 (Iowa 1979). In Roberts, the plaintiff brought a claim against several municipal employees for preventing him “from continuing his auto repair business by shutting off his city water supply, issuing a ‘health denunciation’ and attempting to get a local utility to cut off his gas and electric service.” Id. at 21. The employees subsequently filed a motion to dismiss, arguing the plaintiff‘s claim failed because he did not follow the claim procedures under the Municipal Tort Claims Act. Id. The district court sustained the motion. Id. at 22. On appeal, we observed a person attempting to recover damages against a municipality or any of its officers, employees, or agents acting within the scope of their employment must follow the procedures of the Municipal Tort Claims Act to proceed. Id. at 24. Nonetheless, taking all well-pleaded facts as true, we found the plaintiff alleged the “defendants acted willfully, maliciously and without authorization outside the scope of their employment“; therefore, the procedures of the Municipal Tort Claims Act
In summary, even after the enactment of the state and municipal tort claims acts, the victim of a tort could sue an employee in his or her personal capacity for acts outside the scope of his or her employment.3
V. Certification Under Iowa Code Section 669.5(2)(a).
Prior to the passage of
The general assembly added the certification provision in 2006 as an amendment to the Iowa Tort Claims Act. 2006 Iowa Acts ch. 1185, § 107 (codified at
Congress enacted the Westfall Act as an act independent of the Federal Tort Claims Act. Cf. id. at 419–20, 115 S. Ct. at 2229, 132 L. Ed. 2d at 381 (recognizing the Federal Tort Claims Act only came into play if the Attorney General certified the defendants as acting within the scope of their employment under the Westfall Act). As one court explained
the purpose of the Westfall Act is to assure that the decisions and conduct of federal public servants in the course of their work will not be adversely affected by fear of personal liability for money damages and of the burden of defending damage liability claims. Congress thus wished to grant immunity from both liability and litigation in those instances in which the employee was acting within the scope of his or her office or employment. At the same time, Congress wished to leave undisturbed the rights of those injured by federal employees who were not acting within the scope of their office or employment.
Melo v. Hafer, 13 F.3d 736, 744 (3d Cir. 1994).
VI. Analysis.
To decide this appeal, we do not need to decide whether the Iowa attorney general‘s certification is reviewable. Rather, we must address whether the attorney general‘s certification is applicable to claims alleging individual defendants were acting outside the scope of their employment. Congress enacted the Westfall Act independently of the Federal Tort Claims Act and set forth the procedure to follow when a person or entity sues a federal employee. Under the Westfall Act, the Attorney General may provide his certification in any action, even those not brought under the Federal Tort Claims Act. See id. at 419–20, 115 S. Ct. at 2229, 132 L. Ed. 2d at 381 (affirming the Attorney General can provide a certification in a case that originated as a regular tort case filed in state court).
The general assembly included a similar certification provision in the Iowa Tort Claims Act. See
By limiting the attorney general‘s certification to actions where the plaintiff claims the employee is acting within the scope of his or her employment, we preserve one purpose of the certification provision. Those employees who act within the scope of their employment are granted immunity from both liability and litigation and will not be adversely affected by fear of personal liability for money damages and the burden of defending damage liability claims.
A plaintiff‘s claim the state employee was not acting within the scope of his or her employment is not a claim brought under the Iowa Tort Claims Act. See
Applying these principles, we recognize Godfrey has argued his claims against the individual defendants in their individual capacities do not derive from actions that occurred within the scope of their employment. Thus, the attorney general‘s certification does not apply to his claims against the individual defendants in their individual capacities. These claims against the individual defendants in their
If the court can resolve the scope of employment issue by summary judgment, the court shall substitute the State as the defendant for the employee. If not, the employee will remain a defendant until the fact finder establishes that at the time of the alleged actions the employee was acting within the scope of his or her employment. If the fact finder establishes the employee was acting within the scope of his or her employment, the court shall substitute the State as the defendant for the employee.
Our decision today does not change the way the State has administered claims against state employees or open the floodgates for state employees to be sued individually and to pay the defense costs out of their own pockets when they commit a tort in the scope of their employment. First, it has always been the law of this State that when a public employee acts outside the scope of his or her employment, the employee is personally responsible for the cost of defense and any damages he or she may have caused. See Montanick, 225 Iowa at 455–
For example, if a judge attends a board of supervisors meeting and protests the placement of a hog lot near his or her property and in doing so defames the hog lot owner, the public fisc should not be responsible to defend that judge or pay damages on behalf of that judge if the hog lot owner is successful in his suit against the judge. The reason the public fisc is not at risk is that when the judge made the alleged defamatory remarks, he or she was not acting within the scope of his or her employment.
Second, the Iowa Code requires the State to defend, indemnify and hold harmless any employee whose tort was committed when the employee was acting in the scope of his or her employment.
When there is no factual dispute as to whether the employee was acting within the scope of his or her employment, the certification procedure relieves the employee of personal liability by substituting the State as the only defendant. However, when a factual dispute exists as to whether the state employee was acting within the scope of his or her employment, the court cannot substitute the State as the defendant until the court determines the employee acted within the scope of his or her employment. Otherwise, the attorney general could provide a certification when the employee was not acting within the scope of his or her employment and put the public fisc at risk when it has never previously been at risk.
In summary, where a question of fact exists as to whether a state employee‘s actions were within the scope of his or her employment, the state employee is going to be defended, indemnified and held harmless from any damages and should not fear that his or her personal assets will be at risk, unless it is finally determined the employee was acting outside the scope of his or her employment. When a state employee acts outside the scope of his or her employment, the employee should be responsible for the attorney fees and the damages, not the public fisc.
For these reasons we hold the attorney general‘s certification under
VII. Conclusion and Disposition.
We hold the Iowa Tort Claims Act only applies to torts committed by state employees when acting within the scope of their employment. Therefore, the certification provisions of
We reverse the judgment of the district court substituting the State in counts VI through XVI and dismissing counts X through XV in their entirety. We remand the case back to the district court to allow the fact finder to decide whether the individual defendants’ actions were within the scope of their employment for these counts.
REVERSED AND CASE REMANDED.
All justices concur except Waterman and Mansfield, JJ., who dissent.
Godfrey v. State
#12-2120
Supreme Court of Iowa
I respectfully dissent for the reasons articulated in Justice Mansfield‘s dissent, which I join. I write separately to elaborate on the purposes behind the attorney general certification procedure and the statutory immunities undermined by the majority today. The legislature provided our public officials certain immunities from suit under the Iowa Tort Claims Act (ITCA),
Certification not only spares the public official the risk of a ruinous personal judgment, but also the costs of defending a lawsuit. As Voltaire famously reflected, ” ‘I was never ruined but twice: once when I lost a lawsuit, and once when I won one.’ ” Aetna Cas. & Sur. Co. v. Leo A. Daly Co., 870 F. Supp. 925, 941 (S.D. Iowa 1994). Until today, our public officials sued personally for doing their jobs could quickly avoid the cost of defending the suit upon the attorney general‘s certification that they were acting within their scope of employment. The majority, however, remands this case to have the scope-of-employment issue determined by the fact finder, the jury. Significantly, under the majority‘s interpretation, a plaintiff suing any state official can sidestep the attorney general‘s certification merely by alleging the claim is brought against the defendant in his or her “individual capacity.” By alleging that simple phrase, the employee could be denied indemnification for ongoing
The majority asserts it is protecting the public fisc by sparing our state treasury the cost of defending lawsuits naming public officials in their individual capacity. But, who decides at the threshold of a lawsuit whether the state employee was acting within the scope of his or her employment—the Iowa Attorney General, to whom the legislature entrusted this determination? Or Godfrey‘s attorney, based on unproven allegations in the petition? Who is more likely to protect the public fisc? The attorney general, who is elected by the people of Iowa and accountable to the voters? Or a private lawyer for a claimant suing the State and state employees, whose attorney fee is contingent on a monetary recovery and increases with the size of the verdict or settlement? With good reason, our legislature enacted the certification procedure to empower the attorney general to decide the issue, with judicial review limited to cases where the attorney general refuses certification. See
In this case, for example, the plaintiff has sued the Governor for making “false, defamatory statements to news organizations, including WHO-Radio and WHO-TV,” wherein the Governor “blamed Plaintiff for rising workers’ compensation costs for Iowa businesses.” Because it is important for public officials to communicate with the public, it has been the law for the last fifty years that defamation claims are not available against any public official who was acting in his or her official capacity. The attorney general, after independently reviewing the matter, found that the Governor was acting in his official capacity when he went on the radio and television to make these statements. The defamation claims were therefore dismissed, with the plaintiff being free to pursue his constitutional and discrimination claims. However, because the plaintiff
This will create a strong incentive for public officials to clam up and not participate in press conferences or allow media interviews. Is this what we want? Is it what the legislature intended? It should be noted that the decision in this case applies to all branches of government, including members of the general assembly. Allowing plaintiffs to sidestep the safeguards of the certification procedure will have a chilling effect on the willingness of state officials to answer questions about official actions or pending legislation. The price of the majority opinion will be less transparency and openness in our state government.
The majority ignores the admonitions our court reiterated just a few years ago on the important purposes served by immunities for public employees:
As recognized at common law, public officers require this protection [(immunity)] to shield them from undue interference with their duties and from potentially disabling threats of liability.
Without such protection, there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible, public officials in the unflinching discharge of their duties.
Hlubek v. Pelecky, 701 N.W.2d 93, 98 (Iowa 2005) (citations omitted) (internal quotation marks omitted); cf. Hook v. Trevino, 839 N.W.2d 434, 444 (Iowa 2013) (“We find it equally self-evident that the purpose of
Federal courts likewise have echoed the importance of immunity for public officials:
The purpose of immunity is to protect “[t]he societal interest in providing such public officials with the maximum ability to deal fearlessly and impartially with the public at large. . . . The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion.”
El Dia, Inc. v. Rossello, 20 F. Supp. 2d 296, 301 (D.P.R. 1998) (quoting Clinton v. Jones, 520 U.S. 681, 693, 117 S. Ct. 1636, 1644, 137 L. Ed. 2d 945, 960 (1997)), aff‘d El Dia, Inc. v. Rossello, 165 F.3d 106, 108 (1st Cir. 1999). The Wisconsin Supreme Court elaborated on the public policies underlying immunity for public officials:
These considerations have been variously identified in the cases as follows: (1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public offic[e].
Lister v. Bd. of Regents, 240 N.W.2d 610, 621 (Wis. 1976). Each of the foregoing public policies is undermined by today‘s majority decision.
Mansfield, J., joins this dissent.
Godfrey v. State
#12-2120
MANSFIELD, Justice (dissenting).
I respectfully dissent. The majority‘s understanding of the Iowa Tort Claims Act is not what the plaintiff argued, is contrary to the language of the statute, and is unworkable as a practical matter. If we consider the argument that Christopher Godfrey actually made, both here and below, I think the district court made the right decision, and I would affirm.
I. The Majority‘s Reading of the Iowa Tort Claims Act.
Let me begin with the majority‘s reading of the Iowa Tort Claims Act (ITCA). According to the majority, a plaintiff who brings an action against state employees need only add to the case caption that each employee is being named “individually and in his [or her] official capacity.” This small insertion then becomes a way for the plaintiff to have all the benefits of the ITCA while avoiding its adverse consequences.
Having used the “individual and official” language in the case caption, the plaintiff gets the ball rolling by submitting the entire dispute to the state appeal board, as the plaintiff did here. See
Next up is certification. If the attorney general certifies the defendants were state employees acting within the scope of their office or employment, the plaintiff gets the best of both worlds. As to any tort claims that are allowed under the ITCA, the employees are conclusively deemed to have acted within the scope of employment, the State is
Now, one might say that a shrewd attorney general could refuse to make a certification, thereby keeping his or her options open. But this won‘t happen because, in that event, the defendants would file petitions asking the court to find they were acting within the scope of their employment. See
I disagree that the ITCA establishes such a no-lose proposition for the plaintiff, so long as the plaintiff is astute enough to include six words in the case caption—“individually and in his [or her] official capacity.”
While the majority‘s position is a no-lose for the plaintiff, it is a lose-lose for the defendants. Instead of getting an early determination one way or the other that their liability will or will not be covered by the State, state employees are left hanging until trial or summary judgment with respect to the uncovered claims. Until the jury renders a verdict, if
II. How the ITCA Actually Works: The Plaintiff‘s Two Options.
In my view, this is wrong. I believe the law is straightforward and works like this: A plaintiff who believes he or she has been wronged by a state employee acting outside the scope of employment always has the option of bringing a stand-alone lawsuit against that employee without going through the ITCA presuit notice procedures. In that event, the burden shifts to the defendant to show he or she acted within the scope of employment and therefore the claim or claims are covered by the ITCA. See, e.g., Thomas v. Gavin, 838 N.W.2d 518, 519-20 (Iowa 2013); see also
On the other hand, should the plaintiff choose to follow the ITCA presuit notice procedures and then file suit based upon that notice, the plaintiff becomes subject to the attorney general‘s certification with respect to the entire suit.
The statute in my view compels this interpretation by making it quite clear that certification applies to “suit[s],” not individual causes of action. See
Upon certification by the attorney general that a defendant in a suit was an employee of the state acting within the scope of the employee‘s office or employment at the time of the incident upon which the claim is based, the suit commenced upon the claim shall be deemed to be an action against the state under the provisions of this chapter, and if the state is not already a defendant, the state shall be substituted as the defendant in place of the employee.
In short, the certification process operates on “the suit,” not merely part of it, as the majority concludes. See
Here, Godfrey filed a petition naming the State and six state employees, including the Governor and Lieutenant Governor, as defendants. The body of the petition alleged various acts and causes of action, but did not indicate whether or not the defendants were acting within the scope of their office or employment when they committed those acts. As noted above, the caption listed each defendant followed by the words, “Individually and in His [or Her] Official Capacity.”
Before bringing this petition in court, Godfrey submitted it in its entirety to the state appeal board. The amended petition actually says this. It recites, “On January 9, 2012, within two years of the acts of which he complains, Plaintiff filed with the State Appeals Board a State Tort Claims Act claims for the damages herein sought against the above-named state DEFENDANTS and the State of IOWA.” The transcript of the appellate oral argument also confirms that Godfrey previously submitted everything to the state appeal board.8
For these reasons, I believe that the attorney general‘s certification affects the entire suit except for the civil rights claims. It results in the state employees no longer being defendants to any tort claims, exactly as
Plaintiff respectfully requests that the Court grant interlocutory review of the District Court‘s ruling and find that an attorney general‘s certification in accordance with Iowa Code Chapter 669 is not conclusive as to whether the state defendants were acting within the scope of their employment for purposes of Plaintiff‘s claims and that judicial review of such certification is necessary and proper in the first instance, with the matter submitted as a question of fact for resolution by the jury.9
IV. Is the Attorney General‘s Certification Reviewable?
I now turn to the question that Godfrey actually argued—i.e., whether the attorney general‘s certification is judicially reviewable. Here I would follow the well-reasoned opinion of the United States District Court for the Southern District of Iowa. See Mills v. Iowa Bd. of Regents, 770 F. Supp. 2d 986 (S.D. Iowa 2011). As that opinion demonstrates, the Iowa legislature intended to give final effect to the attorney general‘s
This system in no way works unfairness on plaintiffs. As I have already noted, a plaintiff always has the option of suing a state employee outside the ITCA on an allegation that the employee was not acting in the scope of state employment. This puts the employee in the position of having to prove to the satisfaction of an Iowa district court that the employee was acting in the scope of state employment. Godfrey here chose not to exercise that option.
On the other hand, if the plaintiff, as here, proceeds under the ITCA, then the certification process comes into play. Note again the wording of
This evenhanded system has benefits for the plaintiff. The plaintiff knows once and for all that a defendant with billions of dollars in assets, i.e., the State, will pay the bill if he or she prevails. Following certification, the plaintiff no longer has to worry about proving that a particular defendant acted in the scope of employment. The system also has benefits for the employee. The employee is removed from the lawsuit as an individual defendant and is not subject to liability. And it has benefits for the State. Certain kinds of claims—e.g., some but not all of the claims in this case—cannot be pursued.
Under
On first glance, that might seem unfair to the plaintiff. The defendant can get judicial review but the plaintiff cannot. But on a more thorough consideration, it isn‘t. Again, if the plaintiff believes the individual defendant was not acting in the scope of state employment, the plaintiff can always file a garden-variety lawsuit against that defendant in state court. That lawsuit will go forward against the individual defendant, unless the defendant in some way asserts the ITCA is applicable. The defendant‘s contention that the ITCA applies would then be ruled upon by the court. See, e.g., Thomas, 838 N.W.2d at 519-20; cf. Minor v. State, 819 N.W.2d 383, 405 (Iowa 2012) (finding that a claim against a department of human services employee was barred for failure to exhaust administrative remedies under the ITCA, even though the employee was sued individually).
So what Godfrey really wanted here was a second mechanism for judicial review, one not provided by Iowa law. I would deny that effort. I think
V. The Federal Precedents Under the Westfall Act.
Godfrey argues that we should follow the United States Supreme Court‘s interpretation of the Westfall Act,
In any event, what we have said is that we are guided by interpretations of the FTCA “when the wording of the two Acts is identical or similar.” Thomas, 838 N.W.2d at 525. In Thomas and Walker it was. Id.; Walker, 801 N.W.2d at 565-66. Here it is not.
The Westfall Act, unlike the ITCA, has separate language providing that the attorney general‘s certification is “conclusive” in only one circumstance—namely removal. It reads in relevant part as follows:
(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.
(3) In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the
scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
Thus, by specifically stating that certification is conclusive in the context of removal, the Westfall Act allows for an inference that the attorney general‘s certification is not conclusive in situations other than removal. The ITCA contains no comparable language. The presence of the “conclusively” language was critical to the Supreme Court‘s decision in Gutierrez de Martinez v. Lamagno. See 515 U.S. 417, 433-34, 115 S. Ct. 2227, 2235-36, 132 L. Ed. 2d 375, 388-90 (1995). That language made the statute “reasonably susceptible to divergent interpretation” and thus allowed the Court to follow the interpretive principle “that executive determinations generally are subject to judicial review.” Id. at 434, 115 S. Ct. at 2236, 132 L. Ed. 2d at 390.
Notably, four justices dissented in Lamagno and said that “a plain reading of the text” did not allow for judicial review of the attorney general‘s certification that the defendant was acting within the scope of his or her federal employment. Id. at 439-40, 115 S. Ct. at 2238-39, 132 L. Ed. 2d at 392-94 (Souter, J., dissenting). But for present purposes, as the district court emphasized in Mills, we need only focus on the relevant differences between the ITCA and federal law as revealed by the majority opinion in Lamagno. Mills, 770 F. Supp. 2d at 994-95. As the Mills court put it, “[I]t is the final sentence of the removal provision of § 2679(d)(2) that creates an ambiguity in the framework of the federal statute, leaving it open to judicial interpretation.” Id. at 995 (citing
Furthermore, if you think about it, the different outcome in Lamagno makes sense. Suppose the federal judge who wrote Mills and I got into a public spat and said bad things about each other. (That would never happen, but let‘s assume it did for hypothetical purposes.) If he sued me for defamation in my personal capacity, I would have to defend the case personally or persuade a court that I was acting in the scope of my employment. On the other hand, if I sued him for defamation in his personal capacity, the United States Attorney General could unilaterally remove the case to federal court under Title 28 of the United States Code section 2679(d)(2). Then, but for Lamagno, the Attorney General could certify that this federal judge was acting in the scope of employment, thereby depriving me of my cause of action because, under both the ITCA and the FTCA, defamation claims are not available. In short, judicial review of certification is needed to plug a potential reviewability hole in the federal system, but not in the state system.10
The facts of Lamagno illustrate this point. Late at night, in Colombia, South America, a car driven by an allegedly intoxicated drug enforcement agent ran into the plaintiff‘s vehicle. 515 U.S. at 420-21,
That situation could not arise under the ITCA. Under the ITCA, if the defendant is sued in his or her personal capacity outside the framework of the ITCA, the case goes forward unless and until a court rules that the defendant was acting in the scope of state employment.
Still, Lamagno leads me to two additional observations regarding the majority opinion. First of all, if the majority is right, then the entire United States Supreme Court missed the boat in Lamagno. In a case where the plaintiff maintained the defendant had not been acting in the scope of his government employment, the Justices devoted many pages to debating a single fighting issue—i.e., whether the Attorney General‘s certification could be judicially reviewed or not. My colleagues indicate that this was wasted effort. So long as the complaint contained some allegation that the defendant was also being sued individually, the certification would have no impact. I think this would be a revelation for the Justices of the United States Supreme Court. To the contrary, the Westfall Act allows the Attorney General to issue a certification whether or not the employee has been sued in his individual capacity. See, e.g., Winters v. Taylor, 333 Fed. Appx. 113, 116 (7th Cir. 2009) (“The Westfall Act,
The majority suggests the ITCA should be interpreted differently because “the first sentence of section 669.5 makes it clear the provisions of section 669.5 only apply to suits brought under the Iowa Tort Claims Act.” But as I have already explained, this is a suit under the ITCA. It contains “a claim under [chapter 669].” See
My second observation is that although the Lamagno decision went against the government, it protects government employees in an important, practical way. It does so by assuring the attorney general‘s certification, if challenged by the plaintiff, will be reviewed by “the District Court.” Lamagno, 515 U.S. at 436-37, 115 S. Ct. at 2237, 132 L. Ed. 2d at 391. By contrast, as I have already noted, the majority‘s approach here simply renders the certification irrelevant and leaves the state employee dangling until trial or at best summary judgment, unable to ascertain whether he or she will or will not have personal liability. This seems to undermine one purpose of the ITCA, which is to encourage people to work for the government by providing safeguards if they are
VI. Defense Costs.
I now turn to the subject of defense costs. Here we come to another flaw in the majority‘s opinion.
The majority says that the attorney general‘s certification authority only extends to claims as defined in
However, when my colleagues get to the subject of defense costs, their reading of the statute changes. My colleagues say the State has a duty to defend the state employee if “a question exists” as to whether he or she was acting in the scope of employment, even if the plaintiff alleges the state employee was not acting in the scope of employment.13
How can this be? How can the certification authority be narrower than the authority to provide a defense? Iowa Code sections 669.21 and 669.5 incorporate the same definition of claim from
I submit: Either you can go behind the allegations of individual capacity or you cannot. The majority cannot interpret the same statute—
The majority justifies this contradiction by citing a private insurance case for the proposition that “[t]he duty to defend is broader than the duty to indemnify.” First Newton Nat‘l Bank v. Gen. Cas. Co. of Wis., 426 N.W.2d 618, 630 (Iowa 1988). I do not follow the majority‘s reasoning. In First Newton National Bank, we held as a matter of insurance law that when a lawsuit includes covered and uncovered claims, the insurer has a duty to defend the entire lawsuit. Id. That case does not apply here because we are interpreting statutes and do not get to write the law ourselves. The legislature has defined the duty to defend and indemnify in
In any event, First Newton National Bank does not go where the majority wants to go. That decision only imposes a duty to defend when a lawsuit includes both covered and uncovered claims, and thus would not apply to the majority‘s example of a state employee who is sued only in his or her individual capacity. Further, First Newton National Bank distinguishes the duty to defend from the duty to indemnify, whereas the majority is talking about something different and wants to distinguish
I can understand the majority‘s reluctance to reach the logical conclusion of their reasoning and their desire to limit the collateral damage from today‘s opinion. Still, there should be no doubt that this reluctance leads them to interpret
VII. Conclusion.
Offering a policy justification for today‘s decision, the majority says:
In circumstances where the employee‘s actions are not within the scope of their employment, the public fisc should not be used to pay for that employee‘s defense or damages awarded a third party for that employee‘s actions. The legislature has never authorized the expenditure of public funds to pay for the acts of its employees when done outside the scope of their employment. We are not going to do so today.
No one disputes this broad proposition that the public should not pay for actions taken by state employees outside the scope of their employment, including the defense of lawsuits against those employees. The majority, in this regard, is attacking a straw man. The real issue we need to resolve is who decides the employee‘s status.
As I‘ve already explained, I believe a plaintiff has two alternatives. If the plaintiff elects to proceed under the ITCA, then he or she authorizes the attorney general to decide whether the claims within that suit are in fact claims against a state employee in the scope of employment. Public funds will not pay for the defense of the employee unless the attorney general, an elected official answerable to the citizens of this State, makes this determination.
In short, the ITCA contemplates a quick, early decision by either the attorney general or a court, depending on how the plaintiff chooses to bring his or her action. Either way, a third-party decision maker protects the public fisc. And the plaintiff, by choosing whether to proceed inside or outside the ITCA, gets to select that decision maker.
I want to note one further inconsistency in the majority opinion. The majority asserts that “our holding protects the public fisc by making sure the State does not have to pay any defense costs or damages arising out of a tort committed by state employees acting outside the scope of their employment.” Yet just a few paragraphs before, the majority indicates that if a state employee is sued on an allegation that he or she acted outside the scope of employment, the public fisc must pay for the employee‘s defense if merely “a question exists” whether he or she acted in the scope of employment. Since a mere “question” in the eyes of the attorney general is enough to require the State to provide a defense, according to the majority, there obviously will be situations where the employee gets a state-paid defense even though it is later determined he or she was not acting in the course of employment.
Finally, I would like to close with a practical point. Notwithstanding the zealous and effective advocacy by both sides before this court, the attorney general‘s certification actually eliminates only a small part of Godfrey‘s case. It has no impact on Godfrey‘s civil rights
Waterman, J. joins this dissent.
Notes
I wanted to address some of the issues that you‘ve raised. In my pleading I did not bring the action under the Iowa Tort Claims Act. Did I file with the Iowa Tort Claims Act people? Absolutely because it seems as though that was a good thing to do just in case but I didn‘t bring it that way. I brought it at common law. All six of the claims that were dismissed were brought at common law because I do not think that the Governor defamed Chris Godfrey in his scope of his employment.
- It shall be the duty of the attorney general, except as otherwise provided by law to:
- Prosecute and defend all causes in the appellate courts in which the state is a party or interested.
- Prosecute and defend in any other court or tribunal, all actions and proceedings, civil or criminal, in which the state may be a
MS. CONLIN: I did.
JUSTICE MANSFIELD: Did you include all of the claims including the defamation and extortion?
MS. CONLIN: Yes, sir, I did.
JUSTICE MANSFIELD: So when you say you didn‘t bring it under the Iowa Tort Claims Act, you followed the Iowa Tort Claims Act procedure, would that be fair.
MS. CONLIN: I absolutely followed the Iowa Tort Claims Act procedure before I went to court just in case.
JUSTICE WIGGINS: Do you think that this Court could say that your causes of action and the last five or six counts are barred under the State Tort Claim Act if--say there is no review of the certification and we agree with Mr. LaMarca‘s argument and we say there is no review, it‘s final as to the State‘s Tort Claim Act, couldn‘t we also say that as to any common law action it would not be final after review?
MS. CONLIN: I think that would be true, your Honor.
JUSTICE WIGGINS: Then the burden would be on you to show it was outside the course of their employment in those other actions?
MS. CONLIN: Yes, your Honor, and I wish I would have thought of that when I was in the district court but I did not.