Kelley v. Story County Sheriff

sanction, III. In fixing appropriate

we also consider the fact Ackerman is 12, 1990, repeater. April publicly On securing, him

reprimanded fee from

the mother of criminal defendant for appointed he had court

whom been

compensated funds.

We direct that W. li- John Ackerman’s practice

cense to law in the courts of this

state, as that is defined in Iowa term

Supreme suspended Court 118,12, Rule

indefinitely, no possibility with of rein-

statement for one month from the date of opinion. The costs this action are against

assessed Ackerman accordance Supreme Court

with Rule 118.22.

LICENSE SUSPENDED. CARTER,

All justices except J., concur part.

who takes no KELLEY, Appellant,

Jim SHERIFF,

STORY COUNTY

Story County, Appellees.

No. 98-0030.

Supreme of Iowa. Court

June John- Stephen Newbrough, Vary Howell residence. officers found in the . L.L.P., ston, Brewer, Krauth, & residence and arrested him. Maddux Ames, appellant. Thereafter, Kelley, the owner the res- idence, County against Story filed action Reynolds,

C. Roderick Assistant Coun- Story sheriff1 Attorney,- County and on appellees. for court,

small' claims docket of district see § 631.1,-seeking Iowa compensation Code damage for the caused to the two doors McGIVERIN, Justice. Chief when the officers entered residence. here dam- question main is whether The district associate judge concluded that age private to caused property law the officers exercised due care under Iowa executing' enforcement while an (authorizing Code section 804.15 law en- taking private prop- arrest warrant officer forcement to use such force as is I, erty under article section 18 of the Iowa reasonably necessary premises to enter Constitution, triggering 'property own- purposes of an making arrest when officer right compensation. er’s to a small has reasonable cause to per- brought by plaintiff claims action son whom officer is authorized to ar- owner, against Kelley, Jim defendants Sto- rest present) entering the residence sheriff, ry Story County County and the to the suspect, county arrest and thus the judge the district court concluded that the and sheriff were from liability immune un- damage plaintiffs did caused to chapter der Iowa Code Kelley ap- 670. not amount to a pealed that decision to district court I, under article 18 of Iowa judge. im- defendants were and affirmed, The district court judge con- liability mune Code from tort under Iowa cluding county that defendant was immune 670.4(3) sections and 670.12 of the 670.4(3) (mu- liability under section Municipal Tort Act. Claims nicipality liability immune from granted Kelley’s We application for dis- upon claim based an act anof officer exer- cretionary review. cising care in due the execution of a stat- review, Upon our we affirm the decision ute), sheriff, as officer and of the district court. Story was employee county, not liable 670.12, due to section which per- removes Background proceedings. I. facts liability against sonal and employ- -officers Kelley Plaintiff Jim owns residential real county ees of the' for claims which are Story Kelley County, Iowa. 670.4(3). under section exempted leased Penny Ball. court the damage also .concluded Kelley’s did caused to not consti- 19, 1997, evening May Late in the tute a Story County officers from the sheriffs I, article section 18 Iowa Constitu- Penny office arrived at Ball’s residence tion and therefore was not entitled execute warrant arrest of William from defendants. Vary. Vary apparently was a fre- James quent guest or of that property. Kglley’s resident granted application We for dis- door, cretionary The officers knocked on the front review. Iowa See § identified themselves demanded 631.16.

they purposes making admitted II. of review. Standard an arrest. not an- When door swered, enter, the officers used force to On discretionary review of a ' action, causing two damage to front-doors small claims Iowa Code see collectively county will refer defendants unless indicated. otherwise 670.4(3) and 670.12 of depends Iowa Code sections 631.16, of review our standard Act. Tort Claims Municipal Ana v. Hyde case. the nature 1998). If

nia, 578 N.W.2d county addressing the and sher- Before case, we review is a law action statutory immunity under Iowa Code iffs Plain error. Id. judge’s ruling on district 670.4(3) 670.12, we must first sections county against action tiff caused address whether caused his to a Kelley’s property amounts law. In such an action at property is section 18 article the dis judgment of we review the which com- the Iowa Constitution for at law. for correction of errors trict court paid, or whether the must be pensation 4; Fox & R.App.P. Meier Sac is more plaintiffs property (Iowa Tribe, 61, 476 N.W.2d 62 conduct, Indian subject to the nature of tortious 1991). immunity provisions of Iowa Code analysis begin our with chapter 670. We consti- To extent that raises a for compensa- issue because claim claims, our review of the district tutional I, takings of under the clause article de novo. on those issues is court’s decision the Iowa would section 18 of Univ., N.W.2d v. Iowa 603 Simonson State any statutory independent of seem exist (Iowa 1999). 557, 561 immunity Connolly See v. provisions. tort 875, n. 4 County, 465 878 Dallas N.W.2d takings III. claim. Plaintiffs (Iowa 1991) (stating municipal case, immunity provisions at issue Preliminary A. matters. 613A.4(7) (8), see Code section and 670.4(7) (8), at section and characterized now codified district court “tort,” by the with the definition of caused to when read 670.1(4), conduct, vio- than a now codified at section would as tortious rather I, the coun- late article section 18 of Iowa Con- taking private property of domain, they appear exempt would powers of and con- stitution as ty’s eminent county county liability were from for constitutional cluded that and sheriff claim).2 torts, i.e., liability takings a immune from therefore following taking a just compensation is a jurisdictions from have held 2. Cases other necessity legisla- takings by rather than a not barred statuto 'constitutional claims are ”) (citations quotations ry provisions. and omit- immunity This rule is based on tive dole.' State, 417, ted); alleged right v. 112 Wis.2d 334 to sue for the Zinn idea 67, (1983) (stating taking directly arises from N.W.2d 76 doctrine of sov- of ereign immunity takings independent claim and is of cannot bar state constitution compensation any right just theo because clause of Wiscon- to sue under traditional tort Cal. to waiver of sover- Coalinga, ries. Rose v. 236 sin Constitution amounts See of 1627, 124, 127, (Second) eign immunity); of Rptr. Cal.App.3d 1633 Restatement 190 (1977) (stating (1987) ("The § right Torts cmt. that con- to sue in inverse condem 985B prohibiting 'fundamentally provisions rooted' in Cali stitutional [the nation is Constitution, just pub public compen- for use without and the extent of fornia] usually liability have been held to be self-exe- entity’s lic fixed the Constitution sation suit); cuting 26 statutory or law and to constitute a consent and rules of common 169, rights responsibilities Am.Jur.2d Eminent Domain at 592 between ("doctrine Houston, (1996) immunity governmental parties.”); City 1980) Steele 603 v. 786, (Tex. (stating liability apply injury where that Tex does not S.W.2d damaging complained or compensation of is Constitution authorizes public is waiver without com- use. destruction governmental Municipal, taking, pensation”); dam 57 Am.Jur.2d Coun- immunity for 18, School, Liability § public ty, State at 45 aging Tort or destruction of (1988) (state use); prohibition v. Em constitutional Wisconsin Retired Teachers Ass'n Bd., damaging private proper- against ploye 207 Wis.2d Trust Funds immunity public just compensation ("[S]overeign use without N.W.2d sovereign immunity county). taking, recovery will because overrides not bar Takings generally. B. law which given. must be On the other hand Power” “Police controls 18 of the Article Iowa Consti- regulates the use for the part: provides pertinent tution public good for which no Eminent domain. Privaté need be made. shall not be taken for use without Kent Polk County v. Bd. made, Supervisors, compensation first just being (Iowa 1986) (quoting N.W.2d secured be made the owner there- Comm’n, v. of, Highway Hinrichs Iowa State the damages as soon as shall be 1115, 1126, 260 Iowa 152 N.W.2d jury, assessed who shall not take (1967)); see also Woodbury County Soil advantages into consideration Ortner, Dist. Conservation v. N.W.2d result to owner on said account (Iowa 1979). 276, 278 improvement for which it taken. added.) (Emphasis respect With to the exercise of power health and wel County Bormann Kossuth fare, have stated:. Supervisors, 584 Board denied, 1998), cert. Girres v. Bor broad, While is very mann, 1172, 1096, 525 U.S. 119 S.Ct. 143 capable definition, and not of exact it is (1999), L.Ed.2d 96 set forth the boundless, and, rule, not a subject as is follow^ (1) ing analysis concerning takings claims: limitations. Property constitutional constitutionally there a protected, pri Is may destroyed under this power, (2) at vate interest stake? Has notice or opportunity without to be private property interest been “taken” and, heard, without to the (3) government public the use? and owner, prevent spread conta- of the protected If been property interest has diseases, gious stay progress aof taken, just compensation has been paid to devastating fire, and in other exigen- owner? cies, public protection where the needs or power, Under this defense. alleged taking private of abated; nuisances sometimes be this case is the physical damage caused to but, cases, in all such necessity by the officers when exist, summary action must and one who they entered the property to execute justify of ground necessity would on the Thus, arrest warrant. the facts of this jury a must be able to convince neatly do not fit other case within the which occasion authorized categories takings of cases such as his act.... physical occupation private invasion or property, regulation or the of the use Crawford, Waud v. 160 Iowa 141 property by statute ordinance. See added). (emphasis 1041 N.W. Bormann, (noting at N.W.2d 316-17 explained: As one commentator has physical difference and between invasion term “regulatory taking” [t]he refers regulation property). of use of government in which situations exer- “police powers” cises its to restrict concerning Iowa C. authorities land property. use of or other forms of power of eminent domain and the often accomplished through This is im- police power. exercise of plementation planning, of land use zon- In our we have explained the contrast, ing building and codes. government’s distinction between the exer governmental entity exercises its emi- of authority cise under the eminent domain power nent acts domain “enter- police power doctrines follows: prise capacity, where it takes unto itself “Eminent Domain” is the resources and them for uses private good.” common Where the land, examples provides law some Our case will sell landowner legitimate condemnation ex entity seeks the distinction between purchase a fair pays police power and the exercise of ercise in court. On price to be determined For exam power under eminent domain. hand, an inverse condemnation other ple, we have said that the forced removal by a sought cost, landowner when billboards, claim at which the owner’s government fails seek condemnation Iowa are maintained in violation of action court.3 chapter (Junkyard Beautification and 306C Act) Bormann, is valid exercise of Billboard Control (quoting at 317 584 N.W.2d state, power of the not an exercise Terry Morgan, John Shonkwiler & W. (1986)). 1.02, power domain for which at of the of eminent Litigation Land Use paid. Dep’t compensation must be Iowa The exercise of Transp. Supply, Nebraska-Iowa situations, a tak may, in some amount to (Iowa 1978), N.W.2d overruled on if it ing deprives grounds by other Estate Grossman v. use and property owner substantial (Iowa 113, 114 McCreary, 373 N.W.2d enjoyment property. of one’s See 1985); Council, also Goodenow v. see County, Min. Co. v. Coal Monroe (Iowa 1998) (holding N.W.2d 1996) (Iowa 418, 431 Coal N.W.2d forcing landowner to city ordinance II); Ortner, grass growing city- mow weeds at which so point police power becomes expense owned at landowner’s in a taking it results oppressive proper exercise does case-by-case Bor determined on basis. a taking private proper constitute mann, 316; at 584 N.W.2d Iowa Coal Min. Kent, ty); (holding at 391 N.W.2d 226-27 664, County, Co. v. Monroe 494 N.W.2d county prohibiting persons that ordinance (Iowa 1993) (Iowa Ortner; I); 670 Coal owning “dangerous and vicious ani hoc approach 279 N.W.2d at 278. This ad police of power mals” is valid exercise and essentially is applies balancing that test private a taking does not amount to of reasonableness, Bormann, 584 one see Ortner, 279 at property); N.W.2d 279 317, at which the N.W.2d asks whether (holding provisions of that soil conserva regulatory benefits of the action collective statutes, require which landowners to the outweigh imposed upon the restraint Estates, owner, expense terrace at landowners’ see Easter Lake power proper police exercise of and does County, Inc. v. Polk 444 76 N.W.2d (Iowa 1989); Ortner, a taking at 278. not proper 279 N.W.2d constitute County, applying ty); to be in the Walker v. Johnson Factors considered “(1) (“[wjhere 1973) include: the impact po test economic N.W.2d regulation power the lice in property; properly the claimant’s exercised limited (2) regulation’s proper the interference in it is well with situations settled affected (3) expectations; prior vestment-backed and owners are not entitled to notice governmental character of the action.” hearing, and even where total destruction Bormann, (citing required protect pub 584 N.W.2d at 316-17 of the City, New Transp. property,” stating Penn Cent. Co. v. York lic health and 104, 124, 2646, 2659, 438 U.S. 98 S.Ct. 57 rule context claim based on due (1978)). process L.Ed.2d clauses of the Iowa and United example, private property im- inverse For construction con Supervi provements may Phelps or other action demnation. See v. Board of sors, (Iowa 1973) (con with even interfere interests though bridge proceedings causeway formal eminent domain struction of and over river chapters greater flooding adjacent under Iowa 6A 6B have which caused over and previously been than existed was not instituted. such Constitution). may alleged meaning within of Iowa owner seek an Constitutions); Depart as a consequence therefore States Loftus 566, 581, county’s exercise of Agric., ment as a consequence county’s of the exercise (concluding that N.W. stat of its power Thus, under eminent domain. of diseased authorizing ute destruction question more narrow we must decide proper cattle without is whether county’s exercise of did not de exercise of power in case was unreasonable. prive property process owner of due Constitutions). Iowa and United States court judge district impliedly found did not use officers unreasonable application D. Other authorities premises. force to upon enter Based of law to facts. record, our agree review we with finding. district court’s first point found judge The district court out allege does not caused to amount of force used the officers to tort and was more the nature' of a did enter the residence was unreasonable. constitute Additionally, the record shows meaning within the of article section 18 officers chose to execute the warrant of the Iowa Constitution. evening late hours because the sub- review, Upon agree our with the ject’s reputation assaultive combat- district court’s decision. ive behavior. The officers also identified A. section Through enactment entry themselves and demanded before us- 804.15,4the articulated the legislature has ing force to enter the home. record public policy that law enforcement officers thus properly shows that exer- may private premises to enter force authority granted cised their to them by executing purpose arrest they Iowa Code 804.15 when section forci- warrant. The use of force authorized home. bly entered .the 804.15, however, is not without lim- county’s right We also believe that the According imposed itation. to restrictions provide safety and welfare of its bythe legislature, “such as is reason- force enforcing citizens the state’s criminal ably necessary” only be used when “a procedures laws and outweighs inter- law enforcement officer reasonable has ference impact or economic of the officers’ person cause to that a whom plaintiffs property presented action on as present officer is authorized to arrest is on plain- in to damage this case. caused private premises.” [the] See Iowa Code property tiffs in this case would to seem § 804.15. be more in line with cases those where case, In plaintiffs this property was property owners have been forced to bear damaged by officers, law enforcement who good,” some “for the but burden of, were exercising authority their under sec- taking where no was 804.15, tion performing Goodenow, course of found. See at N.W.2d (landowner enforcing their public duties of the crimi- grass to mow weeds and forced nal laws. Enforcement of the criminal city-owned at growing property on land- county’s Kent, laws within clearly power to N.W.2d at expense); owner’s (owner health, provide lion); safety give pet welfare to up forced (landowners Ortner, of its property citizens. Plaintiffs 279 N.W.2d at 276 premises making purpose Iowa Code section 804.15 states: of promptly arrest. If not such demand is If a law officer has enforcement reason- with, complied may person thereupon able the believe that a cause to whom officer arrest, present to arrest is premises using authorized enter such to make the officer any private premises, on the officer necessary. reasonably such as is force such, upon identifying the officer de- added.) (Emphasis mand that the officer be admitted to such I, the Iowa Constitution. at cle section 18 of landowners’ property to terrace forced action need Transp., 272 Id. noted that Dep’t We Iowa expense); invasion (owner physical not amount to a forced at 14 billboards expense). taking the land in order for to at owner’s surface of to remove billboards Id. be found. at 317. damage to plain- Additionally, B. to more in the be property tiffs seems summary, In we conclude that the C. permanent rather than nature of a tort plaintiffs on damage caused to the doors creation of a deprivation of property, a reasonable the officers was interest, as contem- permanent property exercise of and therefore I, in- section 18. For plated by article plaintiffs not amount to a does stance, non-gov- than a if other someone meaning of within the article had into the employee ernmental broken Plain section 18 the Constitution. to damage the same caused residence tiff not the second therefore has satisfied here, Kelley as was done Kelley’s property in the step takings analysis private cause action in tort

would have theory entitled damages against per- trespass to his caused point will further son. We address this officers. See id. Other authorities point at simply We out next division. Patel v. support our conclusion. See Unit juncture case can be (N.D.Cal. States, F.Supp. ed distinguished from the inverse condemna- 1993) (concluding property damage situation we permanent tion or plaintiffs property caused 584 N.W.2d at 821. found Bormann. warrants oc serving search and arrest on rights in- This is because cupants give did not rise to more Bormann was in the fringement claim for inverse condemnation Cali involuntary of an ease- permanent nature Constitution); fornia Customer Co. v. land, neighbors’ ment which situa- Sacramento, 10 Cal.4th 41 Cal. the present exist in case. Id. does (1995) (stat Rptr.2d P.2d Bormann, ing law county that efforts of enforcement officers supervi- board felony suspect approved application apprehend had of cer- cannot sors land in an to an exercise place tain their likened landowners Nearby holding eminent domain and “agricultural area.” landowners plaintiffs liquor its challenged the board’s action. con- store and 352.11(l)(a), by law offi cluded that Iowa Code section contents caused enforcement apprehend a immunity trying suspect while grants which from nuisance suits cers proper in an operations agricul- for farm located did not amount to Constitution); area, gave applicant McCoy tural landowners under California Sanders, 565, Ga.App. to on their v. 113 148 right maintain nuisance S.E.2d (1966) 902, property (concluding that affect the of that landowner property would damages Georgia This entitled under nearby right landowners. Id. to not to is. nuisance, found, damage maintain a resulted in for fish kill and to Constitution involuntary pond police pond when drained on granting plain of easement victim); by county supervisors property of tiffs in search of murder board for owners, v. applicant property May, of Indiana State Police 469 N.E.2d benefit 1183, by (Ind.Ct.App.1984) (concluding protected who were the nuisance immu- damage to nity. prop Id. We further concluded that the caused homeowner’s by by apprehend to granting erty police trying of such an easement coun- officers in neighbors’ suspect refuge plain took taking amounted to a of the murder who tort, in home in the nature of private property for violation tiffs was Amendment of Fifth to the which state was immune under state tort United act; did amount to a damage Constitution and in violation of arti- claims States I, taking under eminent private meaning within the of article section 18 power domain and thus homeowner was Iowa Constitution for which com- to compensation); pensation not entitled Blackman paid. must be We also noted Cincinnati, 25, City St. Kelley’s Ohio claim for seems 158, (holding N.E.2d that state to be more in the nature a tort. In that it a statute which makes crime to refuse to regard, concluded, the district court how- appre ever, law enforcement officer in assist county and sheriff were hending suspect delegate did not emi immune liability based on tort under police to so 670, nent domain officer Iowa chapter Municipal Tort subject city for liability damage to to Claims Act. Plaintiff contends this er- was plaintiffs police vehicle sustained when of ror. plaintiff pursue ficer ordered to another 670.4(3), Pursuant to Iowa Code section containing fleeing suspect; vehicle owner a municipality or county liability has no of vehicle not to un entitled [a]ny claim based ... upon an act anof Constitution); der Ohio City Sullivant v. or employee the municipality, officer Oklahoma, (Okla.1997) 220, 940 P.2d exercising care, due in the execution of (concluding damage plaintiff-land statute, statute, ... whether the ... by lord’s caused valid, .... executing apart

while search warrant of complex ment apartment' owned added.) (Emphasis Iowa Code section plaintiff did amount to a of 670.12 immunity extends this to officers under Oklahoma Cons employees of municipalities: titution).5 employees [a]ll officers and of munici-

We therefore affirm the decision palities personally are not liable for district court on issue. claims exempted which are under sec- 670.4, except punitive claims immunity

IV. Defendants’ damages, permitted and actions 670.4(3) Code sections and 670.12. section 85.20. An officer or employee concluded damage above that a municipality punitive is not liable for damages caused does not per- as a result acts amount to a duty, formance of a unless actual malice Additionally, though specific even reference der Texas caused "damage property” cap trying found the tak- officers to while Const, California, ings clauses see Cal. escaped prisoners refuge ture who took Const, 19, I, § Georgia, home); art. see Ga. art. plaintiff's Wallace v. Atlantic 3, Constitutions, para. § and Oklahoma see N.J.Super. City, 257 608 A.2d Const, II, Okla. art. courts in those (Law Div.1992) (holding that landlord whose private states have concluded that destroyed during was the execution caused law enforcement officers compensa of a search warrant entitled to performing while their official duties does not Constitution). Jersey tion under New property. constitute a See Wegner distinguished and Steele cases can Co., Cal.Rptr.2d Customer 895 P.2d at case, however, from the based 913; 905; Sullivant, McCoy, 148 S.E.2d at fact that the Minnesota Texas Constitu 940 P.2d at 226. language tions contain our different from Wegner, 479 Iowa Constitution.- See jurisdictions Cases from some have reached (Article I, at section of Minnesota Con contrary Wegner result. See Milwaukee Co., "[p]rivate (Minn. be stitution states taken, shall not Mut. Ins. 479 N.W.2d 41-42 1991) damaged destroyed (holding damage or proper for caused to just paid by compensation se police apprehending without cured.”); first or in the course Steele, (Article I, suspect damage language 603 S.W.2d at 791 within the compensa the Texas Minnesota section Constitution states Constitution for which Houston, taken, paid); person’s tion must be dam ”[n]o Steele v. shall be (Tex. 1980) adequate (holding aged destroyed 603 S.W.2d or ... without com made,...."). plaintiffs compensation pensation being stated a for claim un- 670.12, immunity concerning have willful, and reckless miscon- wanton for damage compensation tort claim for proven. duct his by property. officers to caused court characterized The district af- district court is The decision of the by the Kelley’s property damage to caused firmed on this issue. conduct, rather than officers as tortious coun- Disposition. V. Addition- ty’s domain. powers eminent by plaintiff either issues raised Other that the officers the court concluded ally, in court preserved district were of section purposes for exercised due care have no merit. 670.4(3) pursuant entering the residence section authority under to their damage conclude that caused county was therefore 804.15 and property by during defendants plaintiffs liability under Iowa Code immune from warrant does the execution arrest 670.4(3). not amount to a section 18 the Iowa under article review, agree with Upon our compensation for which must district court’s conclusion paid. county .immune under Iowa Code section 670.4(3) Kel plaintiff for tort claim We further conclude that the district compensation. As we concluded ley for defendant properly court decided that Sto- above, properly exercised their the officers County its are immune un- ry and sheriff authority 670.4(3) Iowa Code granted them 670.12 der Iowa Code sections forcibly they entered section 804.15 when concerning by plaintiff claim for any tort residence. It therefore follows damage caused his “exercising due care” officers met the judg- affirm the property. We therefore 670.4(3). requirement Iowa Code section ment court. district (state was May, 469 N.E.2d at 1183-84 Cf. AFFIRMED. liability caused immune police state CARTER, J., justices except All concur grants under state tort claims act which SNELL, J., who part, who takes no public body for commit immunity to torts LAVORATO, joined by dissents and is J. law). enforcing while state ted SNELL, (dissenting). Justice point out that the lan We also respectfully I dissent. guage “exercising due care” found in sec 670.4(3) reaching far Large principles and conse- a check on the acts as coun quences sometimes from small are born ty’s exercise of to enforce police That cases. is the situation here. Jim a munici criminal laws. This is because plaintiff, that he immunity Kelley, owned house pality cannot avail itself 670.4(3) Penny into if rented to Ball. broke provisions of sections 670.12 Vary, the house order to arrest William not exercise employees do so, doing of Ball. In frequent guest executing in the first due care a statute two doors for which Thus, possibility remains instance. compensated asks to be the amount of that a owner be entitled live in repairs. Kelley did not $1099.60 the house was not at the time fail when law enforcement officers to use of the incident. statutory in, performing due care their duties, not the situation here. which is majority holds that the Iowa Consti- any compensa- county, provide tution does not

We therefore conclude that house, 670.4(3), Kelley, and the tion to the owner the Code section Iowa who, fault, though any innocent of suffered employees, his sheriff and section by police. apparent to his house caused age. The intent of the drafters majority’s I view of provision strictured of this constitutional was to ex- legally Iowa Constitution pect government is unneces- takings from time to time sary inequitable an and causes result. but to that payment order be made for the property taken.

Additionally, majority holds that Kelley collecting I, barred from damages is text of article section 18 of the Constitution, anybody it, because the doctrine of sov- Iowa as I quoted have is ereign prevents immunity assessment from the 1885 Code of Iowa. That lan- damages against Story guage Coun- has never been amended. Iowa’s constitution, ty. vestige This of the doctrine remains adopted first suc- though responsi- cinctly has assumed government legal stated the principle: bility payment types of some other Private shall not be taken for claims. The fallout from these tandem just use without compensation. rulings Kelley bears whole loss Const, I, (1851). Iowa art. It price property apparently to his as the in Henry & Dubuque Pac. referred to pay innocent citizen must for government R.R., 1855), 2 Coles 288 as follows: legally acts the law. undertaken enforce That language of the constitution means plaintiff Today, a proper- suffers person whose property is taken Tomorrow, by police loss of $1099.60. for public use equiva- shall have fair precipitates escalating incursion that dam- in money injury lent done him by ages, loss could reach a hun- words, taking; such in other that he Kelley’s dred times loss or more. Should whole, shall be made far money so as expected, good owner be aas compensation, a measure of we are citizen, to bear this loss state and while equally just clear. This county government pay- are shielded from precisely should be commensurate with ing any Yet, of it? I think not. sustained, injury by having prop- principles by established this small claims taken; erty neither more nor less. will all apply court case and control future Henry, 2 Coles large, deny small or any compen- majority quotes from the property damage by sation caused of Iowa that as heading Code embosses police under these circumstances. I, to article section 18 the words “Eminent Anticipating acts Domain.” Those words in the 1897 appear may cause to the a Iowa, by any virtue of consti- citizen, the framers change, gratuitous tutional cap- but mandating crafted language Constitution tioning work of an unknown editor. The payment “just compensation.” Arti- not, words “Eminent Domain” are nor I, section 18 of our Iowa cle been, they have ever a part of article provides as follows: 18 of the They Iowa Constitution. not, Private shall not be taken therefore, any bearing do limit or have just without our on consideration of the breadth of made, being first secured to made meaning constitutional contained in section thereof, as the the owner soon damages jury, shall be assessed reason, For should not be divert- any who shall take into consideration comparison into domain ed eminent advantages result to said own- cases and cases when the er on improvements account are not referents even the constitutional which it is taken. language. Nor does the reliance language clearly enough majority This broad the rules of inverse condemna- See include claim for dam- have this case. application 486 [John taking W.] Bd. has occurred. See County v. Kossuth

generally Bormann Terry Morgan, Land &[ N.W.2d 809 Shonkwiler Supervisors, 584 10.01(1), 1998). Litigation an pertained ] Use The Bormann case a con hog by noxious odors invasion question was facility. The finement case, ap- the Court a more recent In when there could occur “taking” a

whether rule to a state law that plied same occupan no invasion or physical had been physically in- parties third authorized held plaintiffs Bormann property. cy Loretto, upon private property. trude up “taking” had and set a occurred 9, 432 n. 102 at 3174 n. U.S. at S.Ct. rules, majority, to deter relied on 9, (holding at n. 9 that a 73 L.Ed.2d circum if occur under taking mine would requiring York the owners New statute Id. at of this nature. 315-22. stances buildings permit cable apartment in Bormann Although appropriate to install transmis- operators television to resolve inapt rules are like these property was in sion facilities on their in the case. the issue Compensation violation of the Just Clause). Bormann, takings in its discussion I jurisprudence, recognized the rules that at Id: 316-17. at in the case applied should be Bormann, in Other rules enunciated We said: bar. by majority, in all apply relied on cases (1) general- Takings jurisprudence, case. per other than a se Those ly. categories two of state There are regulatory takings, rules pertain compensated with- action that must be basis, balancing the case-by-case into additional inquiry further out against interests the reasonable- owner’s factors, impact of such as the economic id. at 315- regulatory ness of action. See the land- governmental conduct on sub- regulation owner or whether the per is a se case. The doors This legitimate stantially state advances were Kelley’s house categories include interest. The two in; breaking physical invasion perma- regulations that involve thereby per “taking” by resulted. A se nent invasion of the physical government the acts of officers occurred (2) deny economically all the owner which obviates need to consider rules of land. productive use beneficial owner’s interests balance Coun- Lucas v. South Carolina Coastal against police regulatory apply action. To cil, 1003, 2886, U.S. S.Ct. rules, balancing apply these to other (1992). catego- These two L.Ed.2d takings, than se to see if a per has neighbors “per term ries are what bar, occurred the case at after the per regarding takings. se” se rule analysis. The fact that undisputed fact category physical the first invasion— — damaged legally Kelley’s doors were deter- firmly was established Loretto “taking” mines that a of this oc- Corp., Teleprompter Manhattan CATV curred. 3171, 102 S.Ct. U.S. (1982). L.Ed.2d reason, debating For this same cases

legitimate exercise of (a) Trespassory invasions of eminent domain are irrelevant. property by government enterprise. at even consider The case bar should not has Generally when the whether force framing analysis carrying reasonable. its based physically invaded point, majority has diminished compen- out a and has not on this project landowner, language of article sated the the United States Constitution, ranking it on the Supreme will find that a se same per Court analysis statutory language tice, by level for should public be borne the as a police States, found in Iowa articulating powers, Armstrong whole.” United By approach this the Code section 804.15. 364 U.S. 80 S.Ct. on, (1960).

majority strayed has from focusing L.Ed.2d 1554 to, giving primary importance the words of Id. at 40. the Constitution. In Wegner, the city exactly made the constitution, The salient of our words argument same as is made the case, are: “Private this shall case, where compensation. is denied public just be taken use com- without city The of Minneapolis contended that Const, §I, ...” art. pensation. there was not a for public use be- convey meaning These words a broad cause the actions of police the constituted and are all inclusive. Our construction of a legitimate exercise the police power. them should reduce their universal argument To this the court answered: application simply brevity because police power in its nature is inde- language. While constitutions of However, finable. simply labeling the other include states additional words actions of police as an exercise of the specify compensable property rights, police power justify “cannot the disre- meaning fact change does not gard of the constitutional inhibition.” in the application the words Iowa Con- stitution. Consequently, issue in this is case I the proper believe rationale for decid- not the reasonableness the use of ing meaning of the words “taken for chemical munitions to extricate the bar- public use” in the Iowa Constitution is set ricaded suspect but rather whether the out Supreme Minnesota Court city’s admittedly exercise of the legiti- Wegner the case of v. Milwaukee Mutual “taking.” mate resulted in a Co., (Minn.1992). Insurance (citations omitted). Id. remarkably With facts similar to those in present case, The munitions used the Minneapolis our the Minnesota court held flash-bang grenades its were broke that. constitution mandated that com- house, every through window in the pensation paid went be walls, and covered government. walls furniture with Wegner, 479 N.W.2d a pink film tear gas. from The estimated $71,000. damages were Wegner, Minneapolis Police De- partment severely damaged house while city Minneapolis argued also attempting apprehend an armed sus- no on was owed based pect. Article the Minne- Rejecting doctrine of public necessity. sota Constitution provides: prop- “Private argument, Supreme the Minnesota taken, erty shall not destroyed Court reasoned: damaged public justifica- without found, “taking” is Once tion, paid first or secured.” Thus, required by operation of law. if provi- public necessity

The Minnesota court viewed this doctrine were situation, following given sion with to a apply rationale: fact no Const, could be found under Minn. art. provision “imposes This on condition I, § 13. the exercise of the state’s inherent su- premacy private rights.” over city We are not inclined to allow the inhibition grounds

This type constitutional to defend its actions designed government public necessity “was to bar of this under the facts rule, forcing people some alone bear case. better which, jus- in all par- burdens fairness and situations where an innocent third taken, destroyed taken, damaged or de- ty’s property same, however, use, may, be the the course stroyed by tak- against uncompensated for the mu- suspect, prohibition apprehending innocent compensate ings designed “was to bar nicipality to bear, damages. The resulting people the alone to party forcing for from some case which, in this center considerations policy all fairness public burdens of fairness the notions around basic the as justice, should borne level, States, the issue justice. At its most basic v. Armstrong United whole.” the fair to allocate entire whether it is 1563, 1569, is 49 80 S.Ct. U.S. homeowner loss to an innocent risk of (1960); Y.M.C.A. v. Unit- L.Ed.2d 1554. public. of the We do good for the States, 85, 89, 89 S.Ct. ed 395 U.S. of such burden the imposition (1969). L.Ed.2d this state innocent citizens of on the Steele, 603 S.W.2d underlying princi- with the square would Therefore, justice. ples system our Supreme Court then ob- The Texas Wegner City reimburse must that, through its the court served sustained. losses the earlier notion that “beyond had moved omitted). (citations at 42 government’s duty pay Id. by labeling rights is excused property Supreme agrees Court with The Texas police powers.” taking as exercise Supreme the Minnesota the rationale of in his- reaching Id. at Further back 789. compensation and has held Court tory, uncompensat- court recalled Texas Constitution. provided under. the. governmental taking was ed Houston, City v. 603 S.W.2d See Steele Magna Id. In unlawful before the Carta. (Tex.1980). Steele, group In of es- concluding, the Texas court said: home, not refuge took in a caped prisoners his occupied by then the owner or renters. City argues that the destruction The prisoner’s police discovered When apprehend of the as a means to location, they into discharged incendiaries police escapees is classic instance out the prison- the home in order burn safety of pub- exercise scene, fire arriving at the ers. On police lic. We do not hold .that by the department prevented police the destruc- wrongfully ordered from the fire. The action stopping dwelling; we hold that the of the the house resulted the destruction of are parties third entitled innocent personal property all of the of the their The owner and renters sued renters. property. claiming damages under City of Houston Id. at 793. the Texas Constitution. provides The Texas Constitution City, City Atlantic Wallace (Law person to' payment A.2d 480 Div. N.J.Super. “taken, damaged or de- whose 1992), the Atlantic Tex- stroyed applied for or use.” into a resi breaking three doors while Const, I, § Commenting art. as a search warrant. The dence to execute words, Supreme these Court Texas necessary total and materials cost labor said: The Su the doors was repair $900.97. by police act perior de- Court held that this taking, damaging, or the treated, the United “taking” are constituted a

struction often less, Jersey synonyms, ‘but the States and New Constitutions more or just com owner are and have different entitled terms different damages. the amount origins. underlying pensation historical basis Wallace, 608 A.2d at 483. compensating one whose I do not believe that the words “dam- destroyed” used in the

aged or Minnesota Constitutions distin-

and Texas are legal

guishing significance the word

“taken” contained in article Any property

the Iowa Constitution. destroyed

damaged or has been taken part

from its owner in whole whether

by virtue of the owner’s dimin- immediate it.

ished use of framers of Iowa Constitution providing it all “just compensa-

said paid

tion” to be when is “taken use.” Additional like words

“damaged” “destroyed,” nothing are but redundancy, conceptually legally.

Nor should language constitutional to cover

parsed compen- doors

sation as a if “taking” hauled away, “taking,”

them but not as a if the hanging doors were left their

hinges. Logic, equitable principles, and

constitutional support compensating law loss, his property through taken

government acts envisioned the framers

of our constitution.

I would reverse remand this case entry judgment against Story Coun-

ty in favor plaintiff Kelley command- Constitution,

ed the law of our Iowa

article section 18.

LAVORATO, J., joins this dissent. G.L.,

In the C.B. Interest of Minor

Children, H.W., Mother, Appellant.

No. 98-1719.

Supreme of Iowa. Court

June

Case Details

Case Name: Kelley v. Story County Sheriff

Court Name: Supreme Court of Iowa

Date Published: Jun 1, 2000

Citation: 611 N.W.2d 475

Docket Number: 98-0030

Court Abbreviation: Iowa