                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-2019
                            Filed November 21, 2018


ANDREW LENNETTE, Individually and on behalf of C.L., O.L., and S.L.,
Minors,
      Plaintiff-Appellee,

vs.

STATE OF IOWA, MELODY SIVER, AMY HOWELL, and VALERIE LOVAGLIA,
     Defendants-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Christopher L. Bruns,

Judge.



      Defendants in a civil lawsuit appeal a district court ruling partially denying

their pre-answer motion to dismiss. AFFIRMED.




      Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor General,

and Julia S. Kim, Assistant Attorney General, for appellants.

      Martin Diaz, Swisher, for appellee.




      Heard by Tabor, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

       Defendants1 in a civil lawsuit appeal a district court ruling partially denying

their pre-answer motion to dismiss.

I.     Background Facts and Proceedings

       In September 2017, Andrew Lennette, on behalf of himself and his three

children, filed a petition at law against defendants asserting, among other things,

“a claim for violation” of his and his children’s “Iowa Constitutional Rights as

recognized by the Iowa Supreme Court in Godfrey v. State.” See generally 898

N.W.2d 844 (Iowa 2017). Lennette alleged the rights violated “include liberty,

property, privacy, procedural and substantive due process rights in the parent-child

relationship and in avoiding physical and emotional harm.”            The defendants

promptly filed a pre-answer motion to dismiss in which they argued, among other

things, the constitutional claims should be dismissed for failure to state a claim on

which relief may be granted because qualified immunity shielded them from liability

as to Lennette’s constitutional claims under Godfrey.

       Prior to its ruling on the motion to dismiss, Lennette alerted the district court

in a supplemental resistance that a federal district court certified a question of law

to the Iowa Supreme Court as to whether a defendant could raise a defense of

qualified immunity to a constitutional claim for damages under certain provisions

of the Iowa Constitution. Lennette argued the district court should not apply

qualified immunity to Godfrey-type claims until the supreme court decided the

issue. In its ruling on the motion to dismiss, the district court concluded:


1
 The defendants include the State of Iowa and three employees of the Iowa Department
of Human Services, Melody Siver, Amy Howell, and Valerie Lovaglia.
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       [T]he issue of qualified immunity for Iowa constitutional claims
       remains an open question and that to guess the answer to that
       question without a dispositive holding from the Iowa Supreme Court
       risks unnecessary expenses and proceedings for all involved.
       Further, even if the Iowa Supreme Court declines to consider the
       certified question described here, the doubt must be resolved in
       [Lennette’s] favor, because the current motion is a motion to dismiss.
       The Court cannot say with any certainty whether qualified immunity
       exists in this scenario and thus cannot grant the motion on the basis
       of qualified immunity.

       Following the court’s ruling, the defendants filed an application for

interlocutory appeal on the issue of qualified immunity. The application was initially

denied in a single-justice order. The application was granted following defendants’

motion for a three-justice review. The supreme court stayed the proceedings in

the district court and transferred the matter to this court for resolution.

II.    Standard of Review

       Appellate review of a district court ruling denying a motion to dismiss is for

correction of errors at law. Ackerman v. State, 913 N.W.2d 610, 614 (Iowa 2018);

Madden v. City of Iowa City, 848 N.W.2d 40, 44 (Iowa 2014). “A motion to dismiss

should only be granted if the allegations in the petition, taken as true, could not

entitle the plaintiff to any relief.” King v. State, 818 N.W.2d 1, 9 (Iowa 2012)

(quoting Sanchez v. State, 692 N.W.2d 812, 816 (Iowa 2005)). Denying a motion

to dismiss is appropriate unless the petition “on its face shows no right of recovery

under any state of facts.” Ritz v. Wappello Cnty. Bd. of Supervisors, 595 N.W.2d

786, 789 (Iowa 1999) (quoting Schaffer v. Frank Moyer Constr., Inc., 563 N.W.2d

605, 607 (Iowa 1997)). We do not consider facts contained in the motion to

dismiss. See McGill v. Fish, 790 N.W.2d 113, 116 (Iowa 2010). “To the extent

that we review constitutional claims, our review is de novo.” Id. at 116–17.
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III.   Analysis

       A.       Appellate Jurisdiction

       On appeal, defendants contend the district court erred in denying their pre-

answer motion to dismiss Lennette’s constitutional claims after concluding

qualified immunity is not available to shield them from liability in relation to such

claims.     Defendants additionally contend in this interlocutory appeal that: (1)

Lennette’s constitutional claims are not recognized under Iowa law and the court

therefore erred in not granting dismissal for failure to state a claim for which relief

can be granted; (2) if qualified immunity is available, then they are entitled to its

application under the circumstances of this case; (3) they are entitled to absolute

immunity; and (4) they are entitled to statutory immunity.

       The parties disagree as to whether error was preserved on the four latter

arguments. Defendants’ application for interlocutory appeal only raised the issue

of whether qualified immunity is available in relation to Lennette’s constitutional

claims—the application solely requested the supreme court “grant interlocutory

review of the district court’s ruling denying Defendants’ motion to dismiss the Iowa

Constitutional claims on the basis of qualified immunity.” Following an initial denial

of the application, the defendants’ motion for a three-justice review was likewise

limited to the issue of qualified immunity in relation to the constitutional claims. In

response to that motion, the supreme court granted the initial application.

       Obviously, defendants have raised additional arguments in their briefs on

appeal that were not referenced in their materials requesting interlocutory review.

We view the issue as related to jurisdiction rather than error preservation. “If a

ruling or decision is interlocutory, we lack jurisdiction unless permission to appeal
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is granted.” In re Marriage of Zahnd, 567 N.W.2d 684, 686 (Iowa Ct. App. 1997);

accord In re Marriage of Graziano, 573 N.W.2d 598, 560 (Iowa 1998); Rowen v.

LeMars Mut. Ins. Co. of Iowa, 357 N.W.2d 579, 581 (Iowa 1984); see Iowa R. App.

P. 6.104(1)(a); see also Koss v. City of Cedar Rapids, 300 N.W.2d 153, 156 (Iowa

1981) (finding the issues raised in an application for interlocutory review “set the

parameters of any appellate-court jurisdiction” and jurisdiction of issues not raised

in the application). Defendants only requested and received permission to appeal

“the district court’s ruling denying Defendants’ motion to dismiss the Iowa

Constitutional claims on the basis of qualified immunity.”             We limit our

consideration to the only issue for which interlocutory review was requested and

granted: the propriety of the district court’s denial of defendants’ motion to dismiss

the constitutional claim on the basis of qualified immunity. See also Iowa Rs. App.

P. 6.104(1)(d) (requiring applications for interlocutory review to comply with

content requirements of rule 6.1002(1)), 6.1002(1)(d) (requiring appellate motions

to “state with particularity the grounds on which it is based, including citations to

relevant authorities”).

       B.     Merits

       In Godfrey, a plaintiff sought damages in a civil suit against the State and

several state officials for actions allegedly in violation of his due process and equal

protection rights under article I, sections 6 and 9 of the Iowa Constitution. See 898

N.W.2d at 845–46. The defendants moved for summary judgment, arguing there

is no private cause of action for damages for such constitutional violations. Id. at

846. The district court agreed and granted the motion for summary judgment. Id.

at 846–47. On appeal, the supreme court concluded the due process and equal
                                          6


protection clauses of the Iowa Constitution are self-executing for purposes of

damages at law. See id. at 871–72. As such, the State and state officials may be

sued directly for violating the equal protection and due process clauses of the Iowa

Constitution “where state law does not provide an adequate compensatory

damage remedy.” Baldwin v. City of Estherville, 915 N.W.2d 259, 265 (Iowa 2018)

(discussing Godfrey). The issue of whether qualified immunity could be asserted

as a defense to such claims, however, was not before the court. See id.; Godfrey,

898 N.W.2d at 879.

       After Godfrey, a federal district court certified a question to the Iowa

Supreme Court as to whether a defendant could raise a defense of qualified

immunity to a constitutional claim for damages for violation of article I, sections 1

and 8 of the Iowa Constitution. See Baldwin v. Estherville, Iowa, No. C15-3168-

MWB, 2017 WL 10290551, at *2–3 (N.D. Iowa Oct. 2, 2017). The Iowa Supreme

Court answered that question as follows:

       A defendant who pleads and proves as an affirmative defense that
       he or she exercised all due care to conform with the requirements of
       the law is entitled to qualified immunity on an individual’s claim for
       damages for violation of article I, sections 1 and 8 of the Iowa
       Constitution.

Baldwin, 915 N.W.2d at 260–61. The court explained “that constitutional tort

claims in Iowa should be subject to some limit.” Id. at 275. This is because “the

government officials . . . would be reluctant to fully perform their jobs if they could

be found strictly liable for actions that happened to violate someone’s constitutional

rights.” Id. at 277.

       Godfrey and Baldwin stand for the proposition that litigants may pursue

constitutional tort claims against the State and state officials for money damages
                                          7


where state law does not otherwise provide an adequate compensatory damage

remedy. Godfrey considered claims under article I, sections 6 and 9, while Baldwin

considered claims under article I, sections 1 and 8. Lennette’s petition forwards

various common law claims and claims for violation of Iowa Constitutional rights

recognized in Godfrey. The supreme court’s holding in Baldwin “that qualified

immunity should be available to those defendants who plead and prove as an

affirmative defense that they exercised all due care to conform to the requirements

of the law” was expressly limited to article I, sections 1 and 8. Id. at 279. The court

left open the issue of “the possibility that constitutional claims other than unlawful

search and seizure may have a higher mens rea requirement, such as intent,

embedded within the constitutional provision itself.” Id. at 281.

       What is clear from Baldwin is that constitutional torts are not strict liability

offenses, qualified immunity in constitutional tort cases is an affirmative defense,

and a constitutional tort defendant must plead and carry the burden of proof in

order to be entitled to the affirmative defense. See id. at 279–81.

       In oral argument, defendants conceded the supreme court’s decision in

Baldwin is dispositive in this appeal because qualified immunity in constitutional

tort cases is an affirmative defense and dismissing a cause of action at the motion-

to-dismiss stage on the basis of an affirmative defense is improper. Under the

circumstances of this case, we agree. Typically, “[a] motion to dismiss . . . is not

a proper vehicle for the submission of affirmative defenses.” Harrison v. Allied

Mut. Cas. Co., 113 N.W.2d 701, 702 (Iowa 1962). This is true unless the fact and

nature of the affirmative defense “affirmatively appear on the face of the complaint
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or petition.” See Bickford v. Am. Interins. Exch., 224 N.W.2d 450, 454 (Iowa 1974);

see also Pride v. Peterson, 173 N.W.2d 549, 554 (Iowa 1970).

       As noted, qualified immunity is available as an affirmative defense to

constitutional tort claims. It therefore cannot be submitted through a motion to

dismiss unless the facts alleged in the petition give rise to the affirmative defense.

The petition at law in this case did not allude to the existence of an affirmative

defense based on qualified immunity. The defendants moved to dismiss the

constitutional causes of action upon the argument that they failed to state a claim

for which relief could be granted, see Iowa R. Civ. P. 1.421(1)(f), because qualified

immunity shielded them from liability. This claim was largely based on defendants’

own factual assertion in their motion to dismiss that they “were reasonably acting

pursuant to lawful discretionary authority.” Lennette’s petition at law did not include

this factual allegation.

       As such, we find the contents of the petition were insufficient to allow the

district court to sustain defendants’ motion to dismiss the constitutional claims on

the basis of qualified immunity. Consequently, we affirm the denial of the motion

to dismiss on that ground.

       AFFIRMED.
