                     IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0011
                               Filed February 8, 2017


BRENT A. BUSZKA, TERESA M. BUSZKA, and C.B.,
    Plaintiffs-Appellants,

vs.

IOWA CITY COMMUNITY SCHOOL DISTRICT,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Johnson County, Carl D. Baker,

Judge.



       Plaintiffs appeal an adverse summary judgment ruling and dismissal of

their claims against a school district for alleged sexual abuse by an employee.

AFFIRMED.




       Steven E. Ballard, Thomas E. Maxwell, and Abigail L. Brown of Leff Law

Firm, L.L.P., Iowa City, for appellant.

       Stephanie L. Hinz and Terry J. Abernathy of Pickens, Barnes &

Abernathy, Cedar Rapids, for appellee.



       Considered by Danilson, C.J., and Mullins and Bower, JJ.
                                        2


MULLINS, Judge.

      C.B. alleges during his enrollment in the Iowa City Community School

District (ICCSD) he was abused and assaulted by Donald Clark, an employee of

the school district. C.B. and his parents, Brent and Teresa Buszka, brought this

action against Clark and ICCSD. ICCSD moved for summary judgment, which

the district court granted. The Buszkas now appeal.

      I.     Facts

      The alleged abuse took place from approximately 2003 to 2005. For the

2005–2006 school year, C.B. enrolled in a different school within the district.

C.B. did not disclose the abuse to anyone until 2009. C.B. turned eighteen years

old in May 2011. This action was filed in June 2011.

      II.    Standard of Review

      We review summary judgment orders for correction of errors at law.

Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). Summary

judgment is appropriate if the record shows no genuine dispute of material fact

and the moving party is entitled to judgment as a matter of law. Mason v. Iowa

Vision Bd., 700 N.W.2d 349, 353 (Iowa 2005). We review the record in the light

most favorable to the nonmoving party and draw all legitimate inferences the

evidence bears in conducting our review. Kragnes v. City of Des Moines, 714

N.W.2d 632, 637 (Iowa 2006).

      III.   Analysis

      The Buszkas raise several issues on appeal: (1) Iowa Code section 670.5

(2011) should be interpreted to include the tolling provision of section 614.8(2);

(2) section 670.5 is unconstitutional; (3) chapter 614 limitations periods are
                                               3


applicable to chapter 670 claims filed prior to July 1, 2007; (4) section 614.8A is

applicable to chapter 670 claims, so 614.8(2) must be; (5) the common-law

discovery rule should apply to section 670.5; and (6) section 614.1(12) applies.

The Buszkas’ claims rise or fall with the applicable statute of limitations. Chapter

614 is the general limitations chapter.            Among its provisions is a five-year

limitation period:

                 An action for damages for injury suffered as a result of
          sexual abuse, as defined in section 709.1, by a counselor,
          therapist, or a school employee, as defined in section 709.15, or as
          a result of sexual exploitation by a counselor, therapist, or a school
          employee shall be brought within five years of the date the victim
          was last treated by the counselor or therapist, or within five years of
          the date the victim was last enrolled in or attended the school.

Iowa Code § 614.1(12).1 That chapter also includes a minor tolling provision,

which, in 2005, relevantly provided: “Except as provided in section 614.1,

subsection 9, the times limited for actions in this chapter, except those brought

for penalties and forfeitures, are extended in favor of minors, so that they shall

have one year from and after attainment of majority within which to commence

an action.” Iowa Code § 614.8(2) (2005). That subsection was amended in 2007

to provide:

                 Except as provided in section 614.1, subsection 9, the times
          limited for actions in this chapter, or chapter 216, 669, or 670,
          except those brought for penalties and forfeitures, are extended in
          favor of minors, so that they shall have one year from and after
          attainment of majority within which to file a complaint pursuant to
          chapter 216, to make a claim pursuant to chapter 669, or to
          otherwise commence an action.

Iowa Code § 614.8(2) (2011).            ICCSD argues that, because this action was

brought pursuant to chapter 670—the Iowa Municipal Tort Claims Act (IMTCA),

1
    This portion of the code was the same at all times relevant to this decision.
                                            4


section 670.5 applies and provides a two-year limit.          In 2005, that section

provided:

                 Every person who claims damages from any municipality or
         any officer, employee or agent of a municipality for or on account of
         any wrongful death, loss or injury within the scope of section 670.2
         or section 670.8 or under common law shall commence an action
         therefor within six months, unless said person shall cause to be
         presented to the governing body of the municipality within sixty
         days after the alleged wrongful death, loss or injury a written notice
         stating the time, place, and circumstances thereof and the amount
         of compensation or other relief demanded. Failure to state time or
         place or circumstances or the amount of compensation or other
         relief demanded shall not invalidate the notice; providing, the
         claimant shall furnish full information within fifteen days after
         demand by the municipality. No action therefor shall be maintained
         unless such notice has been given and unless the action is
         commenced within two years after such notice. The time for giving
         such notice shall include a reasonable length of time, not to exceed
         ninety days, during which the person injured is incapacitated by the
         injury from giving such notice.

Iowa Code § 670.5 (2005). In 2011, it provided:

                 Except as provided in section 614.8, a person who claims
         damages from any municipality or any officer, employee or agent of
         a municipality for or on account of any wrongful death, loss, or
         injury within the scope of section 670.2 or section 670.8 or under
         common law shall commence an action therefor within two years
         after the alleged wrongful death, loss, or injury.

Iowa Code § 670.5 (2011). The district court agreed with ICCSD.

                A.      Statutes

         A review of the relevant history will aid our analysis of the competing

statutes. In 1986, our supreme court held the version of section 670.5 in effect at

that time unconstitutional.2 See Miller v. Boone Cty. Hosp., 394 N.W.2d 776,

778–81 (Iowa 1986); see also Harryman v. Hayles, 257 N.W.2d 631, 635 (Iowa

1977) (invalidating separate portion of the then-existing statute).       Under that

2
    That version remained unchanged in the code until 2007.
                                         5


version of section 670.5, “plaintiffs proceeding under the IMTCA without giving

notice had only six months to bring suit, [but] persons with claims against private

parties were allowed two years [from giving notice] to file suit.” Doe v. New

London Cmty. Sch. Dist., 848 N.W.2d 347, 351 (Iowa 2014). Miller ended with

this declaration: “Finally, because section 613A.5 [(the earlier iteration of section

670.5)] is unconstitutional, we hold that Iowa Code chapter 614 is the applicable

statute of limitations for all actions arising under chapter 613A [(now 670)].” 394

N.W.2d at 781.        A few years later, the supreme court severed “the

unconstitutional portion of the statute while retaining the remaining portion.”

Clark v. Miller, 503 N.W.2d 422, 425 (Iowa 1993). This allowed the two-year limit

of section 613A.5 (now 670.5) to stand, for claimants who provided timely notice.

“To allow a person to commence a tort action against a unit of local government

within two years after giving timely notice is not patently arbitrary.” Id.; cf. Iowa

Code § 669.13 (providing two-year limitation period for tort claims against

employees of the state government).

       In 2007, the general assembly amended the IMTCA’s limitations provision

to the current version of section 670.5—which was in effect in 2011—as

reproduced above.      The Legislative Services Agency’s 2007 Summary of

Legislation suggests the new version was expected to be a continuation of the

old version:

              The Act eliminates a portion of Code Section 670.5, formerly
       Code Section 613A.5, requiring a person claiming damages from
       any municipality on account of any wrongful death, loss, or injury to
       commence an action within six months after the wrongful death,
       loss, or injury. This six month statute of limitation period was
       declared unconstitutional by the Iowa Supreme Court in Miller v.
       Boone County Hospital, 394 N.W.2d 776 (Iowa 1986). The Act
                                        6


      retains the remaining portion of Code Section 670.5 that allows a
      person to commence a tort action against any municipality on
      account of any wrongful death, loss, or injury within two years after
      the date of the wrongful death, loss, or injury.

Legislative Servs. Agency, 2007 Summary of Legislation 83 (July 2007)

(hereinafter 2007 Summary of Legislation), https://www.legis.iowa.gov/docs/

publications/SOL/401775.pdf.

      But the evolution of section 670.5 is not our only historical consideration.

Prior to the 2007 amendment, our supreme court separately considered whether

a “discovery rule” existed under the IMTCA. “This rule simply stated is that a

statute does not commence to run until the date of discovery, or the date when,

by the exercise of reasonable care, Plaintiff should have discovered the wrongful

fact.” Montgomery v. Polk Cty., 278 N.W.2d 911, 913 (Iowa 1979). Our supreme

court held the discovery rule did not apply to such cases because the statute was

a “statute of creation” for which deadlines were triggered by the “injury.” Id. at

917. The IMTCA lacked the “elasticity” of other chapters where limitation periods

were triggered when a cause of action “accrues,” for example. Id. at 914; cf.

Iowa Code § 614.1 (“Actions may be brought within the times herein limited,

respectively, after their causes accrue . . . .”). The holding in Montgomery has

been consistently reaffirmed.     See New London, 848 N.W.2d at 352–54

(considering pre-2007 IMTCA); Vachon v. State, 514 N.W.2d 442, 445 (Iowa

1994); Callahan v. State, 464 N.W.2d 268, 270 (Iowa 1990); Uchtorff v. Dahlin,

363 N.W.2d 264, 266 (Iowa 1985); Orr v. City of Knoxville, 346 N.W.2d 507, 510

(Iowa 1984); Farnum v. G.D. Searle & Co., 339 N.W.2d 392, 396 (Iowa 1983). It
                                          7


also withstood a challenge based on our state constitution’s equal protection

clause. See New London, 848 N.W.2d at 356–60.

       The discovery rule is not the only way to provide “elasticity” to a limitations

period. The minor tolling provision of section 614.8(2), for example, does so.3

Prior to the 2007 legislation, the supreme court had said “[t]he Iowa legislature

has never indicated any intent to incorporate a tolling provision in chapter 670,

and we decline to do so by relying on the broad language of Miller.” Perkins ex

rel. Perkins v. Dallas Center-Grimes Cmty. Sch. Dist., 727 N.W.2d 377, 380

(Iowa 2007); see also Rucker v. Humboldt Cmty. Sch. Dist., 737 N.W.2d 292,

295 (Iowa 2007). The legislative response in 2007 was to amend sections 670.5

and 614.8 to expressly make chapter 670 claims subject to the tolling provisions

of section 614.8. Compare Iowa Code § 614.8(2) (1987), with id. (2003), and id.

(2009). That same legislation, however, provided that the amended language

“applies to all complaints, claims, and actions arising out of an alleged death,

loss, or injury occurring on or after July 1, 2007.” 2007 Iowa Acts ch. 110, § 6.

       One additional code section bears introducing. The Buszkas make an

argument that assumes Iowa Code section 614.8A would apply to their claims

against ICCSD if C.B. had not discovered the causal relationship between the

injury and the sexual abuse until after he attained the age of majority. They then

use that premise to advance a constitutional argument claiming there is no

rational basis to deny their claims since C.B. claims to have discovered the injury

prior to becoming eighteen years of age. That statute provides:

3
  The reference to chapter 670 was added to section 614.8(2) in the same 2007
legislation that amended code section 670.5, discussed above. See 2007 Iowa Acts ch.
110, §§ 2, 5.
                                           8


                An action for damages for injury suffered as a result of
         sexual abuse which occurred when the injured person was a child,
         but not discovered until after the injured person is of the age of
         majority, shall be brought within four years from the time of
         discovery by the injured party of both the injury and the causal
         relationship between the injury and the sexual abuse.

Iowa Code § 614.8A.4

                B.     Interpretation

         If statutes conflict, we “must attempt to harmonize them in an effort to

carry out the meaning and purpose of both statutes.” Kelly v. State, 525 N.W.2d

409, 411 (Iowa 1994).          Our principles of statutory construction are well-

established:

         When the plain language of a statute is clear, we need not search
         for meaning beyond the statute’s express terms. We may presume
         the words contained within a statute have the meaning commonly
         attributed to them. We can resort to rules of statutory construction,
         however, when a statute’s meaning is ambiguous. “A statute is
         ambiguous if reasonable persons could disagree as to its meaning.”

Oyens Feed & Supply, Inc. v. Primebank, 879 N.W.2d 853, 859 (Iowa 2016)

(citations omitted).    Our primary goal is to “ascertain and give effect to the

legislature’s intent.” Alcor Life Extension Found. v. Richardson, 785 N.W.2d 717,

722 (Iowa 2010).       To do so, “we consider not only the words used by the

legislature, but also the statute’s subject matter, the object sought to be

accomplished, the purpose to be served, underlying policies, and the

consequences of various interpretations.” Id. If a general statute conflicts with a

special statutory provision, “they shall be construed, if possible, so that effect is

given to both. If the conflict . . . is irreconcilable, the special . . . provision

prevails as an exception to the general provision.” Iowa Code § 4.7; see also

4
    This section was added to the code in 1990 and has remained unchanged since.
                                           9

Johnson Cty. v. O’Connor, 4 N.W.2d 419, 420 (Iowa 1942) (stating “special

limitations prevail over a general limitation”).

       As demonstrated above, section 670.5 has been the subject of much

judicial “surgery.”   Perkins, 727 N.W.2d at 379.      In an apparent legislative

response, it was amended in 2007. See 2007 Iowa Acts ch. 110, § 5. When our

statutory interpretation involves amendments, “determination of the primary

objective of an amendment requires reference to the prior state of the law and

the circumstances surrounding the enactment.”        Van Dyke v. Iowa Dep’t of

Revenue & Fin., 547 N.W.2d 1, 3 (Iowa 1996). “[W]e assume the amendment

sought to accomplish some purpose and was not simply a futile exercise of

legislative power.” Western Outdoor Adver. Co. v. Bd. of Review, 364 N.W.2d

256, 258 (Iowa 1985). Based on the Legislative Services Agency’s summary and

the timing of the legislation—a month after Perkins “urge[d] the legislature to

examine the statute and clarify its present status,” 727 N.W.2d at 377 n.1—the

amendment appears to be a response to Miller. Concordantly, in its most recent

iteration, section 670.5 was made expressly subject to the tolling exception of

section 614.8 for minors and persons with mental illness. The legislation adding

that exception made no such exception for sections 614.8A, 614.1(12), or any

other section; and no legislation since then has done so. The contrast is stark:

section 670.5 is a special limitation, to which the legislature has recently

attended, specifically applicable to municipal tort claims. If the legislature had

intended to include additional exceptions, it could have, but it did not. “We do not

search for meaning beyond the express terms of a statute when the statute is
                                        10

plain and its meaning is clear.” In re Det. of Fowler, 784 N.W.2d 184, 187 (Iowa

2010). Chapter 614, however, provides only for general limitations.

      We also consider the timing of the amendment, distinct from its legislative

purpose. We use legislative history as a guide to statutory interpretation. See

Doe v. Iowa Dep’t of Human Servs., 786 N.W.2d 853, 858 (Iowa 2010) (“We also

consider the legislative history of a statute, including prior enactments, when

ascertaining legislative intent.”). Presumably, it follows that recent amendments

are more useful than amendments more distant in time. See State v. Farley, 351

N.W.2d 537, 538 (Iowa 1984) (considering “[r]ecent” legislative history).

      Further, the IMTCA provides the “exclusive remedy for torts against

municipalities and their employees.” Rucker, 737 N.W.2d at 293; see Iowa Code

§ 670.4 (“The remedy against the municipality provided by section 670.2 shall

hereafter be exclusive of any other civil action or proceeding by reason of the

same subject matter against the officer, employee, or agent whose act or

omission gave rise to the claim . . . .”). The school district at issue herein is a

municipality within the meaning of the statute. See Iowa Code § 670.1(2). “Suits

against the government may be maintained only to the extent immunity has been

expressly waived by the legislature.” City of Cedar Falls v. Cedar Falls Cmty.

Sch. Dist., 617 N.W.2d 11, 18 (Iowa 2000). Private citizens have the right to sue

municipalities, “but only in the manner and to the extent to which consent has

been given by the legislature.” Rivera v. Woodward Res. Ctr., 830 N.W.2d 724,

727 (Iowa 2013) (discussing chapter 669 and state government).

      The substance of section 614.1(12) plainly applies to “a counselor,

therapist, or school employee,” but has no language implicating employees of the
                                           11


school district beyond the one who committed the alleged sexual abuse—here,

Clark. The statute refers to actions for damages resulting from sexual abuse or

exploitation by certain individuals.     See Iowa Code § 614.1(12).          It does not

provide for claims against other employees of the school or the school district.

Sections 614.1(12) and 670.5 can be harmonized by concluding that claims

against the school district and employees who did not commit sexual abuse must

commence within two years of the injury, pursuant to section 670.5, but claims

against the employee offender must commence within five years, pursuant to

section 614.1(12).5

       Section 614.8A provides a tolling period, but makes no reference to claims

brought pursuant to chapter 670. Compare Iowa Code § 614.8A, with § 614.8(2).

It is therefore inapplicable here.

       The Buszkas ask us to adopt a discovery rule for IMTCA claims. We

decline to do so because adopting a discovery rule for IMTCA claims would be

contrary to existing supreme court precedent. See New London, 848 N.W.2d at

352–54; Vachon, 514 N.W.2d at 445; Callahan, 464 N.W.2d at 270; Uchtorff, 363

N.W.2d at 266; Orr, 346 N.W.2d at 510; Farnum, 339 N.W.2d at 396;

Montgomery, 278 N.W.2d at 917. “We are not at liberty to overrule controlling

supreme court precedent.” State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App.

2014). Furthermore, when the legislature amended sections 670.5 and 614.8, it




5
 Although we are doubtful C.B.’s attendance at other schools in the district following the
alleged abuse would satisfy the requirement to file the suit within five years of when he
was last enrolled in or attended “the school,” having already concluded section 670.5
controls, we decline to analyze this issue.
                                        12


could have easily provided a statutory discovery provision for IMTCA claims, but

it has never done so.

       C.B.’s injury occurred no later than 2005, when the last abuse allegedly

occurred. As a “statute of creation,” chapter 670 provides “[t]ime to sue . . . runs

from the wrongful death, loss, or injury.” Montgomery, 278 N.W.2d at 917. In

2005, the legislature had “never indicated any intent to incorporate a tolling

provision in chapter 670.” Perkins, 727 N.W.2d at 380. The 2007 Summary of

Legislation and the Act amending the statute make clear the 2007 amendment

applies to injuries occurring on or after July 1, 2007. See 2007 Iowa Acts ch.

110, § 6; 2007 Summary of Legislation 83. Without the assistance of the minor

tolling provision, the Buszkas’ claims must be analyzed under the pre-2007-

amended version of 614.8(2).       That version made no exception for claims

brought pursuant to chapter 670.

       We conclude that the precision and recency of the 2007 legislation, the

exclusive remedy intended by the IMTCA, the dominance of special limitations

over general limitations, and the necessity of harmonizing statutes when we can

do so, make it clear section 670.5, not sections 614.1(12), 614.8 or 614.8A, is the

limitations period for the Buszkas’ claims in this case. The district court made no

error at law when it so decided.

              C.     Constitutional Claims

       We are left with the Buszkas’ constitutional claims.       We review such

claims de novo. Hensler v. City of Davenport, 790 N.W.2d 569, 578 (Iowa 2010).

The Buszkas allege section 670.5 is unconstitutional as applied because it

violates the equal protection clause of the Iowa Constitution by (1) treating claims
                                         13


against private tortfeasors and municipalities differently and (2) treating minors

abused before July 1, 2007, differently from minors abused after that date. See

Iowa Const. art. I, § 6. The Buszkas also allege an interpretation of section

670.5 that applies section 614.8A to chapter 670 claims, but does not apply

section 614.8(2) to those same claims, is unconstitutional because “a discrete

class of sexually abused minors are effectively prevented from ever seeking

justice.” Finally, the Buszkas allege an interpretation of section 670.5 that does

not incorporate the discovery rule is unconstitutional because there exists no

rational basis to differentiate between persons abused by private parties and

those abused by municipal actors.

       Two of the Buszkas’ claims—the first and the last above—allege an

unconstitutional public/private distinction.   Our supreme court has recognized

rational bases for distinctions between public and private entities.    See New

London, 848 N.W.2d at 356–60. We reach the same conclusion; indeed we are

compelled to. See Beck, 854 N.W.2d at 64 (“We are not at liberty to overrule

controlling supreme court precedent.”). These claims fail.

       In our analysis above, we explained why section 670.5 governs, and not

section 614.8A. Nonetheless, we choose to further address the Buszkas’ claim

related to section 614.8A. Section 614.8A applies when a minor discovers an

injury after reaching the age of majority—for example, in a case of repressed

memory.    See, e.g., Claus v. Whyle, 526 N.W.2d 519, 524–25 (Iowa 1994)

(discussing victim’s “flashback” leading to discovery of abuse). Plainly, it does

not apply to this case. There is no evidence C.B. “discovered” his injury at any

time other than when it occurred, and in any event, C.B. told others of the abuse
                                          14


before reaching the age of majority. The statute therefore does not impact C.B.’s

rights. See Frideres v. Schiltz, 540 N.W.2d 261, 268 (Iowa 1995) (stating “a

statute of limitations should not be extended or applied to cases not clearly within

the provisions of the statute”).       “One to whom application of a statute is

constitutional lacks standing to attack the statute on the ground it might be

susceptible of unconstitutional application to other persons or in other situations.”

State v. Henderson, 269 N.W.2d 404, 405 (Iowa 1978). While there are “limited”

exceptions to that general principle, the Buszkas present no argument implicating

those exceptions. See Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973). This

claim fails.

       Finally,   we   address   the    Buszkas’   claim   that   section   670.5   is

unconstitutional for drawing a distinction between injuries occurring before and

after July 1, 2007. We reject this challenge.

       It seems inevitable that a number of litigants will be adversely
       affected by any change of law. This is a matter which weighs
       heavily in the consideration of any change. The legislative body or
       the court which undertakes a change must exercise its best
       judgment about which point in time would result in the most justice
       for the most persons.

Beeler v. Van Cannon, 376 N.W.2d 628, 630–31 (Iowa 1985). “[T]here is no

constitutional requirement that . . . legislation must reach every class to which it

might be applied.” Thomas v. United Fire & Cas. Co., 426 N.W.2d 396, 398

(Iowa 1988).      Unconstitutional classification “does not occur when, within a

general category of persons of sufficiently widespread dimensions, all members

are treated the same.” Id. at 399. It was a rational decision by the legislature to,

in March 2007, adopt legislation that would take effect in July 2007.
                                 15


IV.    Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.
