                  IN THE SUPREME COURT OF IOWA
                                 No. 18–1856

                              Filed June 14, 2019


GREGORY BALDWIN,

       Appellant,

vs.

CITY OF ESTHERVILLE, IOWA,

       Appellee.



       Certified questions of law from the United States District Court for

the Northern District of Iowa, Mark W. Bennett, United States District

Court Judge.



       The United States District Court for the Northern District of Iowa

certifies   six   questions   pursuant   to   Iowa   Code   § 684A.1   (2019).

CERTIFIED QUESTIONS ANSWERED.



       Jack Bjornstad, Spirit Lake, for appellant.


       Douglas L. Phillips and Zachary D. Clausen of Klass Law Firm, LLP,

Sioux City, for appellee.



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

General, and Julia S. Kim, Assistant Attorney General, for amicus curiae

State of Iowa.
                                   2

      Katie Ervin Carlson and Emily McCarty of Timmer & Judkins,

P.L.L.C., West Des Moines, and Joel E. Fenton of Law Offices of Joel E.

Fenton, PLC, Des Moines, for amicus curiae Iowa Association for Justice.

      Jason C. Palmer, Thomas M. Boes, Catherine M. Lucas, and

Benjamin R. Erickson, Des Moines, for amicus curiae Iowa Communities

Assurance Pool.
                                     3

WIGGINS, Justice.

      The United States District Court for the Northern District of Iowa

certifies six questions pursuant to Iowa Code section 684A.1 (2019). In

our discretion, we answer five of the questions because they meet the

criteria of section 684A.1. We do not answer one of the questions because

it does not meet the criteria of section 684A.1.

      I. Facts Provided to Answer Certified Questions.

      “When we answer a certified question, we rely upon the facts

provided with the certified question.”      Baldwin v. City of Estherville

(Baldwin II), 915 N.W.2d 259, 261 (Iowa 2018); accord Life Inv’rs Ins. Co.

of Am. v. Estate of Corrado, 838 N.W.2d 640, 644 (Iowa 2013) (“[W]e restrict

our answer to the facts provided by the certifying court when answering a

certified question.”). The facts as set forth by the federal court are as

follows:

             The factual background to this case is set out in
      considerable detail in [the federal court’s] prior ruling on
      cross-motions for summary judgment, see Baldwin v.
      Estherville, Iowa [(Baldwin I)], 218 F. Supp. 3d 987, 989–93
      (N.D. Iowa 2016), then by the Iowa Supreme Court in
      Baldwin [II], 915 N.W.2d 259, 261–65 (Iowa 2018). For
      present purposes, suffice it to say that, on November 10,
      2013, Officers Reineke and Hellickson, of the Estherville City
      Police, were shown a video by a resident in the Estherville area
      of a person the officers identified as plaintiff Gregory Baldwin
      riding a 4-wheeler ATV that proceeded along North 4th Street
      and turned into a ditch, using the north Joe Hoye Park
      entrance, after which it continued in the ditch until it reached
      West 14th Avenue North, where it returned to the roadway.

             The officers then reviewed IOWA CODE CH. 321I [(2014)],
      which, inter alia, permitted operation of ATVs only on streets
      designated by cities, see IOWA CODE § 321I.10(3), because the
      officers believed that Chapter 321I had been incorporated by
      reference into the City’s Code of Ordinances when Chapter
      321 was incorporated. They also consulted The Handbook of
      Iowa All–Terrain Vehicle and Off–Highway Motorcycle
      Regulations (Handbook), which the defendants contended is a
      handbook frequently relied upon by police officers when
      determining whether off-road vehicles are operating in
                                      4
      compliance with applicable laws. Finally, they discussed the
      matter with the City’s police chief and a police captain. They
      concluded that the activity shown in the video amounted to a
      violation of City Ordinance E-321I.10.          However, that
      Ordinance was not valid or in effect at the time, because it did
      not exist.

             Officer Reineke prepared a citation and attempted to
      serve it on Baldwin at his home, but he was not there. Officer
      Reineke then refiled the citation with the notation “Request
      Warrant.” On November 12, 2013, a state magistrate entered
      an order directing that a warrant issue. On November 13,
      2013, Officer Hellickson served the warrant on Baldwin and
      took him to jail. Baldwin’s wife posted bond, and Baldwin
      later pleaded not guilty to the charge.

            In the days that followed, the City Attorney discovered
      that the City had not included IOWA CODE CH. 321I when it
      incorporated IOWA CODE CH. 321 into the City’s Code of
      Ordinances. The City Attorney was granted leave to amend
      the charge to allege a violation of a different ordinance, City
      Ordinance 219–2(2). City Ordinance 219–2 generally permits
      ATVs to be operated on City streets except where prohibited,
      but subsection (2) prohibits operation of ATVs “in city parks,
      playgrounds, or upon any publicly-owned property.” On
      Baldwin’s Motion For Adjudication Of Law Points And To
      Dismiss, the Iowa District Court found that the cited act was
      not a violation of the City’s Code of Ordinances as written and
      dismissed the case. The state court did so only after making
      two key constructions of pertinent City Ordinances: (1) that
      the plain meaning of “street” in City Ordinances included the
      “ditch,” and (2) that “publicly-owned property” in City
      Ordinance 219–2(2), to the extent that it conflicted with
      another ordinance defining “street,” did not include the “ditch”
      of a City street. See Baldwin [I], 218 F. Supp. 3d at 1000–
      1001.

Baldwin v. Estherville (Baldwin III), 333 F. Supp. 3d 817, 823–24 (N.D.

Iowa 2018); see Baldwin v. Estherville (Baldwin IV), 336 F. Supp. 3d 948,

950 (N.D. Iowa 2018) (order certifying questions) (incorporating by

reference the factual statements made in Baldwin I, 218 F. Supp. 3d at

989–93, Baldwin II, 915 N.W.2d at 261–65, and Baldwin III, 333

F. Supp. 3d at 822–24). We will refer to the City of Estherville as the “City”

in this opinion.
                                     5

      II. Questions Certified by the Federal Court.

      In Baldwin II, we answered a certified question from the federal court

involving qualified immunity. 915 N.W.2d at 260–61, 281. There we said,

      Constitutional torts are torts, not generally strict liability
      cases. Accordingly, with respect to a damage claim under
      article I, sections 1 and 8 [of the Iowa Constitution], a
      government official whose conduct is being challenged will not
      be subject to damages liability if she or he pleads and proves
      as an affirmative defense that she or he exercised all due care
      to conform to the requirements of the law.

Id. at 281.

      It is not clear whether Baldwin II addressed whether qualified

immunity is available to government employers. See id.; id. at 281–83

(Appel, J., dissenting); see also Baldwin III, 333 F. Supp. 3d at 831–32.

Because the only defendant in this case is a municipality, the federal court

has asked additional certified questions. On October 2, the federal court

issued an order certifying the following six questions to this court:

             1. Can the City assert qualified immunity to a claim for
      damages for violation of the Iowa Constitution based on its
      officers’ exercise of “all due care”?

             2. If the City can assert such a defense, on the facts
      presented in this case, does the City have “all due care”
      qualified immunity to liability for damages for the violation of
      Baldwin’s right to be free from an unreasonable search and
      seizure under article I of the Iowa Constitution? This question
      necessarily includes questions about the extent to which
      reliance on a warrant may satisfy the “all due care” standard
      and whether the “all due care” analysis considers alternative
      bases for probable cause or a warrant on which the officers
      did not rely.

            3. If punitive damages are an available remedy against
      an individual defendant for a violation of a plaintiff’s rights
      under the Iowa Constitution, can punitive damages be
      awarded against a municipality that employed the individual
      defendant and, if so, under what standard?

            4. If punitive damages are available in answer to the
      previous question, would a reasonable jury be able to find that
                                       6
      the applicable standard was met on the facts presented in this
      case?

             5. If an award of attorney’s fees would have been
      available against an individual defendant for a plaintiff who
      attains some degree of success on a claim of a violation of a
      plaintiff’s rights under the Iowa Constitution, would they be
      available against a municipality that employed the individual
      defendant and, if so, under what standard?

             6. If the answer to either Question No. 3 or Question
      No. 5 (or both) is in the affirmative, will retroactive application
      to the pending case be appropriate?

Baldwin IV, 336 F. Supp. 3d at 958–59.

     III. Standard of Review and Criteria for Answering Certified
Questions.

      The statutory provision authorizing us to answer a certified question

provides,

             The supreme court may answer questions of law
      certified to it by . . . a United States district court . . . , when
      requested by the certifying court, if there are involved in a
      proceeding before it questions of law of this state which may
      be determinative of the cause then pending in the certifying
      court and as to which it appears to the certifying court there
      is no controlling precedent in the decisions of the appellate
      courts of this state.

Iowa Code § 684A.1 (2019). Thus, the Code gives us the discretion to

answer a certified question if four conditions are met:

      (1) a proper court certified the question, (2) the question
      involves a matter of Iowa law, (3) the question “may be
      determinative of the cause . . . pending in the certifying court,”
      and (4) it appears to the certifying court that there is no
      controlling Iowa precedent.

Life Inv’rs Ins. Co. of Am., 838 N.W.2d at 643 (alteration in original)

(quoting Iowa Code § 648A.1 (2013)).
                                            7
      IV. Certified Question Number 1: A Municipality’s Ability to
Assert Qualified Immunity Based on Its Officers’ Exercise of “All Due
Care.”

       The first certified question from the federal district court is “Can the

City assert qualified immunity to a claim for damages for violation of the

Iowa Constitution based on its officers’ exercise of ‘all due care’?”

Baldwin IV, 336 F. Supp. 3d at 958.                This question essentially asks

whether a municipality can be “vicariously immune” from liability for its

employees’ constitutional torts when the employees would be immune

from personal liability. The question does not ask whether a municipality

is immune for its own acts.

       Baldwin bases his suit against the City on a constitutional tort and

the doctrine of respondeat superior. We recognized that a direct cause of

action for damages resulting from an Iowa constitutional tort could be

brought against the state and state officials in their official capacities in

the recent case of Godfrey v. State. 898 N.W.2d 844, 847 (Iowa 2017).

Before answering the first certified question, we must determine whether

the Iowa Municipal Tort Claims Act (IMTCA) applies to a Godfrey action

brought against the municipal employer of the constitutional tortfeasor. 1
       A Godfrey action is the state counterpart to a Bivens action. See id.
A Bivens action is a claim brought in federal court against a federal agent

to   recover    damages      from    the    agent’s    commission       of   a   Federal

constitutional tort.      See Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005 (1971). The

creation of a Bivens action by the United States Supreme Court and our

       1In his petition, which was filed before our decision in Godfrey, Baldwin stated
that his suit challenging the violation of his constitutional rights was brought under the
Iowa Constitution and that his causes of action regarding the violation of his Iowa
constitutional rights were brought pursuant to Iowa Code chapter 670, the IMTCA.
However, in his court filings subsequent to our Godfrey decision, Baldwin only contends
his Iowa constitutional claims were brought directly under the Iowa Constitution.
                                       8

creation of a Godfrey action are consistent with section 874A of the

Restatement (Second) of Torts. Section 874A provides,

      When a legislative provision protects a class of persons by
      proscribing or requiring certain conduct but does not provide
      a civil remedy for the violation, the court may, if it determines
      that the remedy is appropriate in furtherance of the purpose
      of the legislation and needed to assure the effectiveness of the
      provision, accord to an injured member of the class a right of
      action, using a suitable existing tort action or a new cause of
      action analogous to an existing tort action.

Restatement (Second) of Torts § 874A, at 301 (Am. Law Inst. 1979); see id.

§ 874A cmt. a, at 301 (noting “legislative provision” includes constitutional

provisions).

      Illustration 1 under comment f to section 874A states, “The Fourth

Amendment to the United States Constitution prohibits unreasonable

searches and seizures. The court may grant a federal civil remedy in the

nature of trespass against a federal officer who makes an unreasonable

search of the plaintiff’s home.” Id. § 874A cmt. f, illus. 1, at 305. The

authors of the Restatement took this illustration from Bivens. Id. § 874A

Reporter’s Note cmt. f, app. at 105.

      Comment f further provides,

      Relationship to other torts. If, in a particular case, the court
      determines that it is appropriate to provide a civil action in
      order to effectuate the policy behind a legislative provision,
      that civil action will normally sound in tort. A tort action is
      the form of civil relief that grants damages or injunctive relief
      for harm wrongfully inflicted upon or threatened to an interest
      of the injured party. The cause of action will ordinarily be
      assimilated to the most similar common law tort. Common
      law torts were created by the courts, and they are still subject
      to being modified by the courts. If a legislative provision
      indicates the existence of a significant public policy within the
      jurisdiction, the courts, in furtherance of that policy, may
      judicially make modifications in the elements of a common
      law tort.      Sometimes the judicial modification of an
      established tort comes in regard to the defenses applicable to
      it. A legislative policy against immunity for a certain type of
      defendant or against barring a criminal prosecution because
                                           9
       of consent of a certain type of plaintiff, for example, may be
       the occasion for the court to change the scope or availability
       of the defense in a tort action.

Id. § 874A cmt. f, at 304–05 (citation omitted).

       The United States Supreme Court applied these principles when it

determined the Federal Tort Claims Act (FTCA) did not preempt a Bivens

action even though the underlying facts of the case could also support a

claim against the federal government under the FTCA. Carlson v. Green,

446 U.S. 14, 18–19, 100 S. Ct. 1468, 1471–72 (1980).                       The Court

acknowledged that a Bivens action may be defeated when the defendant–

federal official shows “that Congress has provided an alternative remedy

which it explicitly declared to be a substitute for recovery directly under

the Constitution and viewed as equally effective.” Id. at 18–19, 100 S. Ct.

at 1471. It found Congress did not intend to make the FTCA the exclusive

remedy for federal actors’ constitutional torts. Id. at 19–20, 100 S. Ct. at

1472. We cannot say the same for the IMTCA.

       The Iowa legislature enacted the IMTCA in 1967. 1967 Iowa Acts

ch. 405 (codified at Iowa Code ch. 613A (1971)).               The IMTCA imposed

liability on municipalities for their own and their employees’ torts:

       Except as otherwise provided in this Act, every municipality is
       subject to liability for its torts and those of its officers,
       employees, and agents acting within the scope of their
       employment or duties, whether arising out of a governmental
       or proprietary function.

Id. § 2 (codified at Iowa Code § 613A.2). 2 It originally defined tort as “every
civil wrong which results in wrongful death or injury to person or injury to

property and includes but is not restricted to actions based upon




       2This provision is currently codified at Iowa Code section 670.2(1) (2019) and is
substantially the same as when enacted except the word agents has been removed.
                                    10

negligence, breach of duty, and nuisance.” Id. § 1 (codified at Iowa Code

§ 613A.1(3)).

      In 1974, the legislature amended section 613A.1. 1974 Iowa Acts

ch. 1263, §§ 1–2 (codified at Iowa Code § 613A.1(3) (1975)). In doing so,

the legislature expanded the definition of tort to include violations of

constitutional provisions. Id. § 2. The new language, which is the same

as in the current Code, states,

      “Tort” means every civil wrong which results in wrongful death
      or injury to person or injury to property or injury to personal
      or property rights and includes but is not restricted to actions
      based upon negligence; error or omission; nuisance; breach of
      duty, whether statutory or other duty or denial or impairment
      of any right under any constitutional provision, statute or rule
      of law.

Iowa Code § 670.1(4) (2019) (emphasis added).

      The   IMTCA     expressly   dictates   immunities     for   defendant

municipalities. Iowa Code § 670.4(1); see Jahnke v. Inc. City of Des Moines,

191 N.W.2d 780, 782 (Iowa 1971) (noting the IMTCA eliminated any

common law immunities in tort previously given to municipalities). In

relevant part, the IMTCA immunizes municipalities against “[a]ny claim

based upon an act or omission of an officer or employee of the

municipality, exercising due care, in the execution of a statute, ordinance,

or regulation whether the statute, ordinance or regulation is valid.” Iowa

Code § 670.4(1)(c).   If the officers exercised due care in executing an

ordinance, the City would be immune pursuant to section 670.4(1)(c).

      Therefore, the answer to certified question number 1 is that the due

care exemption under section 670.4(1)(c) could provide the City immunity.
                                      11
      V. Certified Question Number 2: If a Municipality Can Assert
Qualified Immunity Based on Its Officers’ Exercise of “All Due Care,”
the City’s Ability to Do So Under the Facts of This Case.

      The second certified question from the federal district court is

      If the City can assert such a defense [(i.e., qualified immunity
      based on its officers’ exercise of “all due care”)], on the facts
      presented in this case, does the City have “all due care”
      qualified immunity to liability for damages for the violation of
      Baldwin’s right to be free from an unreasonable search and
      seizure under article I of the Iowa Constitution? This question
      necessarily includes questions about the extent to which
      reliance on a warrant may satisfy the “all due care” standard
      and whether the “all due care” analysis considers alternative
      bases for probable cause or a warrant on which the officers
      did not rely.

Baldwin IV, 336 F. Supp. 3d at 958.

      Under Iowa law, we have the discretion to answer a certified question

if the question complies with the requirements of section 684A.1. One of

the requirements under section 684A.1 is that the question involves a

matter of law. Life Inv’rs Ins. Co. of Am., 838 N.W.2d at 643. This question

as posed requires us to apply the facts of this case to the answer to certified

question number 1. Therefore, we decline to answer certified question

number 2.

     VI. Certified Question Number 3: Award of Punitive Damages
Against the Municipal Employer of the Constitutional Tortfeasor.

      The third certified question from the federal district court is

      If punitive damages are an available remedy against an
      individual defendant for a violation of a plaintiff’s rights under
      the Iowa Constitution, can punitive damages be awarded
      against a municipality that employed the individual defendant
      and, if so, under what standard?

Baldwin IV, 336 F. Supp. 3d at 958.

      We have decided the IMTCA applies to Baldwin’s Iowa constitutional

tort causes of action. When the legislature enacted the IMTCA, it did not

expressly prohibit a punitive damage award against a municipality. See
                                     12

1967 Iowa Acts ch. 405. In 1978, we concluded the IMTCA did not prohibit

punitive damages against the municipality that was sued for its police

officers’ commission of the common law tort of false arrest. Young v. City

of Des Moines, 262 N.W.2d 612, 614, 622 (Iowa 1978) (en banc),

superseded by statute, 1982 Iowa Acts ch. 1018, § 5 (codified at Iowa Code

§ 613A.4(5) (1983) (now § 670.4(1)(e))), as recognized in Parks v. City of

Marshalltown, 440 N.W.2d 377, 379 (Iowa 1989). In response to Young,

the legislature amended the IMTCA to exempt municipalities from punitive

damages liability. Parks, 440 N.W.2d at 379; see S.F. 474, 69th G.A., 1st

Sess., Explanation (Iowa 1981).

      Therefore, the answer to certified question number 3 is that section

670.4(1)(e) precludes an award of punitive damages against the

municipality that employed the constitutional tortfeasor.

      VII. Certified Question Number 4: Punitive Damages Under the
Facts of This Case.

      The fourth certified question from the federal district court is “If

punitive damages are available in answer to the previous question, would

a reasonable jury be able to find that the applicable standard was met on

the facts presented in this case?” Baldwin IV, 336 F. Supp. 3d at 958.
Because we hold no punitive damages are available against the municipal

employer of the constitutional tortfeasor under the IMTCA, we need not

answer this question.

     VIII. Certified Question Number 5: Award of Attorney Fees
Against the Municipal Employer of the Constitutional Tortfeasor.

      The fifth certified question from the federal district court is

      If an award of attorney’s fees would have been available
      against an individual defendant for a plaintiff who attains
      some degree of success on a claim of a violation of a plaintiff’s
      rights under the Iowa Constitution, would they be available
                                      13
      against a municipality that employed the individual defendant
      and, if so, under what standard?

Id. at 958–59.

      Ordinarily, under the American rule each party is responsible for

their own attorney fees and costs. De Stefano v. Apts. Downtown, Inc., 879

N.W.2d 155, 168 (Iowa 2016). There are exceptions to the rule. One of

these exceptions shifts the attorney fees of the victor to the losing party if

there is an express statutory authorization to do so. See Lee v. State, 906

N.W.2d 186, 197 (Iowa 2018). Another exception is an award of common
law attorney fees under very limited circumstances. Williams v. Van Sickel,

659 N.W.2d 572, 579 (Iowa 2003).           In following the guidance of the

Restatement (Second) of Torts, these are the only two situations where

attorney fees can be shifted to the losing party in a Godfrey action. See

Restatement (Second) of Torts § 914(1) & cmt. a, at 492 (noting exceptions

to American rule on attorney fees).

      In a Godfrey claim, like in a Bivens claim, there is no express

statutory authorization for attorney fees. Cf., e.g., Alexander A. Reinert,

Measuring the Success of Bivens Litigation and Its Consequences for the

Individual Liability Model, 62 Stan. L. Rev. 809, 811 n.6 (2010) (citing

Kreines v. United States, 33 F.3d 1105 (9th Cir. 1994)) (noting there is no

statutory provision that allows for attorney fees in a Bivens claim, unlike

42 U.S.C. § 1988, which allows for attorney fees in a § 1983 claim).

Baldwin contends that 42 U.S.C. § 1988, Iowa Code section 669.15, and

Iowa Code chapter 216 authorize attorney fees to the prevailing plaintiff in

a Godfrey claim against a municipality. This position is untenable because

none of those provisions extend to his cause of action.

      Section 1988 allows attorney fees

      [i]n any action or proceeding to enforce a provision of sections
      1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX
                                     14
      of Public Law 92-318, the Religious Freedom Restoration Act
      of 1993, the Religious Land Use and Institutionalized Persons
      Act of 2000, title VI of the Civil Rights Act of 1964, or section
      12361 of Title 34.

42 U.S.C. § 1988(b) (2012).     Neither a generic Godfrey action brought

against a municipality nor Baldwin’s particular claim against the City is

one of those.
      Iowa Code section 669.15 is found in chapter 669, the Iowa Tort

Claims Act.     The Iowa Tort Claims Act does not cover suits against

municipalities. Iowa Code § 669.2(3) (2019). Therefore, section 669.15

does not apply to either a generic Godfrey claim brought against a

municipality or Baldwin’s particular claim against the City.

      Finally, Iowa Code section 216.15(9)(a)(8) allows the civil rights

commission to order payment of attorney fees if it determines the

defendant engaged in discriminatory or unfair practices. This is not a civil

rights case under chapter 216. Thus, we do not find an express statutory

provision for attorney fees.

      But there is also a rare exception to the American rule on attorney

fees “when the losing party has acted in bad faith, vexatiously, wantonly,

or for oppressive reasons.” Remer v. Bd. of Med. Exam’rs, 576 N.W.2d 598,

603 (Iowa 1998) (en banc) (quoting Hockenberg Equip. Co. v. Hockenberg’s

Equip. & Supply Co. of Des Moines, Inc., 510 N.W.2d 153, 158 (Iowa 1993));

accord Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258–

59, 95 S. Ct. 1612, 1622 (1975). Under those circumstances, a court may

award attorney fees. Id. It will be up to the trial court to determine if

Baldwin can meet the common law standard. See Hockenberg Equip. Co.,

510 N.W.2d at 159.

      Therefore, the answer to certified question number 5 is that in a

Godfrey action, a court cannot award attorney fees against the municipal
                                         15

employer of the constitutional tortfeasor unless there is a statute expressly

allowing such an award. We find none here. As for the common law rule

regarding awarding attorney fees to the victorious party, it will be up to

the trial court to determine if Baldwin has met the common law standard.

See id. at 159–60 (setting forth standard for common law attorney fees).

      IX. Certified Question Number 6: Retroactive Application of
Answers to Certified Questions on Punitive Damages and Attorney
Fees.

      The sixth certified question from the federal district court is “If the

answer to either Question No. 3 or Question No. 5 (or both) is in the

affirmative,     will   retroactive   application   to   the   pending   case   be

appropriate?” Baldwin IV, 336 F. Supp. 3d at 959.

      Because we conclude the IMTCA prohibits an award of punitive

damages against the municipal employer of the constitutional tortfeasor,

we need not answer this question with respect to punitive damages.

However, because we conclude common law attorney fees may be available

in a Godfrey action against the municipal employer of the constitutional

tortfeasor, we will proceed to answer this question with respect to common

law attorney fees.

      The City cites Beeck v. S.R. Smith Co., 359 N.W.2d 482 (Iowa 1984),

for the proposition that if we conclude attorney fees may be awarded

against the municipal employer, that conclusion should not apply

retroactively.    Beeck involved a certified question from a federal court

asking whether a minor’s newly established cause of action for loss of

parental consortium should be given retroactive effect. Id. at 484. The

case did not involve a question of whether the availability of attorney fees

in a cause of action should be given retroactive effect.
                                       16

      However, even if we apply the Beeck test, the possibility of common

law attorney fees is available to Baldwin. In Beeck, we adopted a three-

factor test for determining retroactivity of a cause of action. Id. The test

we enumerated was,

      First, the decision to be applied nonretroactively must
      establish a new principle of law, either by overruling clear past
      precedent on which litigants may have relied or by deciding
      an issue of first impression whose resolution was not clearly
      foreshadowed. Second, it has been stressed that “we must
      . . . weigh the merits and demerits in each case by looking to
      the prior history of the rule in question, its purpose and effect,
      and whether retrospective operation will further or retard its
      operation.” Finally, we have weighed the inequity imposed by
      retroactive application, for “[w]here a decision of this Court
      could produce substantial inequitable results if applied
      retroactively, there is ample basis in our cases for avoiding the
      ‘injustice or hardship’ by a holding of nonretroactivity.”

Id. (alterations in original) (citations omitted) (quoting Chevron Oil Co. v.

Hudson, 404 U.S. 97, 106–07, 92 S. Ct. 349, 355 (1971), abrogated in part

by Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 96–97, 113 S. Ct. 2510,

2517 (1993)).

      We have allowed common law attorney fees in tort actions for over
100 years. E.g., Dorris v. Miller, 105 Iowa 564, 568, 75 N.W. 482, 483

(1898) (holding if the defendant’s acts are “tainted by fraud, malice, or

insult,” the jury may award punitive damages and, in so doing, may

include attorney fees in its award (quoting Theodore Sedgwick, A Treatise

on the Measure of Damages 105 (Arthur G. Sedgwick ed., New York, Baker,

Voorhis   &     Co.,   5th   ed.   1869),   https://babel.hathitrust.org/cgi/

pt?id=uc2.ark:/13960/t0cv4mr8h;view=1up;seq=7            [https://hdl.handle.

net/2027/uc2.ark:/13960/t0cv4mr8h])), superseded by statute, 1986

Iowa Acts ch. 1211, § 42 (codified as amended at Iowa Code § 668A.1), as

recognized in Hockenberg Equip. Co., 510 N.W.2d at 159.
                                    17

      Application of the Beeck factors reveals fairness does not require

only prospective application of our conclusion that in a Godfrey action,

common law attorney fees may be available against the municipal

employer of the constitutional tortfeasor. See 359 N.W.2d at 484. We are

not creating a new principle of law by allowing common law attorney fees.

Rather, we are applying time-honored tort principles.         Common law

attorney fees are to compensate a party when the opposing side “acted in

bad faith, vexatiously, wantonly, or for oppressive reasons.” Remer, 576

N.W.2d at 603 (quoting Hockenberg Equip. Co., 510 N.W.2d at 158). We

see no reason not to allow common law attorney fees in this tort action.

      Therefore, the answer to certified question number 6 is that it is

appropriate to retroactively apply our conclusion that in a Godfrey action,

common law attorney fees may be available against the municipal

employer of the constitutional tortfeasor. Thus, Baldwin can receive an

award of common law attorney fees in this action against the City if he can

meet the standard for common law attorney fees.

      X. Disposition.

      We answer the questions certified by the federal district court as

follows:

             1. Can the City assert qualified immunity to a claim for
      damages for violation of the Iowa Constitution based on its
      officers’ exercise of “all due care”?

      Answer: The due care exemption under section 670.4(1)(c) could

provide the City with immunity.

             2. If the City can assert such a defense, on the facts
      presented in this case, does the City have “all due care”
      qualified immunity to liability for damages for the violation of
      Baldwin’s right to be free from an unreasonable search and
      seizure under article I of the Iowa Constitution? This question
      necessarily includes questions about the extent to which
      reliance on a warrant may satisfy the “all due care” standard
                                    18
      and whether the “all due care” analysis considers alternative
      bases for probable cause or a warrant on which the officers
      did not rely.

      Answer: The question as posed requires us to apply the facts of this

case to the answer to certified question number 1. Therefore, we decline

to answer certified question number 2.

            3. If punitive damages are an available remedy against
      an individual defendant for a violation of a plaintiff’s rights
      under the Iowa Constitution, can punitive damages be
      awarded against a municipality that employed the individual
      defendant and, if so, under what standard?

      Answer: No.     The punitive damages exemption under section

670.4(1)(e) precludes a plaintiff from collecting punitive damages from the

municipal employer of the constitutional tortfeasor.

            4. If punitive damages are available in answer to the
      previous question, would a reasonable jury be able to find that
      the applicable standard was met on the facts presented in this
      case?

      Answer: Because we hold the IMTCA immunizes municipal

employers of constitutional tortfeasors against punitive damages, we need

not answer this question.

             5. If an award of attorney’s fees would have been
      available against an individual defendant for a plaintiff who
      attains some degree of success on a claim of a violation of a
      plaintiff’s rights under the Iowa Constitution, would they be
      available against a municipality that employed the individual
      defendant and, if so, under what standard?

      Answer: In a Godfrey action, a court cannot award attorney fees

against the municipal employer of the constitutional tortfeasor unless

there is an express statute allowing for such an award or the prevailing

party satisfies the standard for common law attorney fees. We find no

express statutory authorization for attorney fees here. As for common law
                                      19

attorney fees, it will be up to the trial court to determine if Baldwin has

met the common law standard.

             6. If the answer to either Question No. 3 or Question
      No. 5 (or both) is in the affirmative, will retroactive application
      to the pending case be appropriate?

      Answer:       Because the IMTCA prohibits an award of punitive

damages against the municipal employer of the constitutional tortfeasor,

we need not answer this question with respect to punitive damages. With

respect to common law attorney fees, we answer that it is appropriate to

retroactively apply our conclusion that in a Godfrey action, common law

attorney fees may be available against the municipal employer of the

constitutional tortfeasor. Thus, Baldwin can receive an award of common

law attorney fees in this action against the City if he can meet the standard

for common law attorney fees.

      CERTIFIED QUESTIONS ANSWERED.

      All justices concur except Appel, J., who concurs in part and

dissents in part.
                                           20

                                         #18–1856, Baldwin v. City of Estherville

APPEL, Justice (concurring in part and dissenting in part).

        I. Introduction.

        In Baldwin v. City of Estherville (Baldwin II), 915 N.W.2d 259, 281

(Iowa 2018), the majority of this court decided that a government official

could        assert   a   modified   qualified   immunity     defense    to   a   state

constitutional tort under article I, sections 1 and 8 of the Iowa

Constitution. For reasons expressed in my dissenting opinion in Baldwin

II, I was unable to join the majority opinion. Id. (Appel, J., dissenting). I

continue to believe there is no immunity available to shield individual state

officers from liability for alleged harm caused by their unconstitutional

conduct in violation of article I, sections 1 and 8 of the Iowa Constitution.

Id.

        On the issues raised in this case, 3 I dissent in part from the

majority’s holding regarding the potential liability of the city. I agree that

the city may be held liable for state constitutional torts under a respondeat

superior theory. But I do not believe the government entity is entitled to

assert a defense of qualified immunity. As expressed in Baldwin II, I do

not believe that officers and agents are entitled to qualified immunity, and
as a result, such a defense does not pass through to the governmental

entity under respondeat superior. Further, even if the individual officers

and agents of the government are entitled to quasi-immunity, it should not

extend to claims against a municipal entity under respondeat superior.

        On the question of punitive damages, I dissent from the majority. In

a search and seizure case, for reasons I explain below, it is critical that




        3I agree with the majority to limit our answers to questions of law posed in the
certified questions presented by the federal district court.
                                     21

punitive damages be available against a government entity in a proper case

in order to provide an adequate remedy to the state constitutional tort.

      On the question of attorney fees, I agree with the majority that

attorney fees may be available under the bad faith theory we have long

recognized at common law. But I also believe that attorney fees, in an

appropriate case, may be available under what has been called the private

attorney general theory.

      II. Overview of State Constitutional Torts.

      At the outset, it is important to understand exactly what a state

constitutional tort is. A state constitutional tort is a claim that may be

brought by a person for harms by government authorities arising from a

violation of a rights-creating provision of the Iowa Constitution. Godfrey

v. State, 898 N.W.2d 844, 847 (Iowa 2017). The claim is implied in the

substantive provisions of the Iowa Bill of Rights contained in article I of

the Iowa Constitution. See id. at 868. It is supported by the basic principle

that there is no right without a remedy. Id. at 867. A state constitutional

tort arises out of the provisions of the Iowa Bill of Rights and does not

require any enabling legislation by the legislature. Id. at 870.

      Further, if unconstitutional conduct sufficient to support a state

constitutional tort is present, we must next determine whether

government defendants are entitled to immunities or affirmative defenses,

and if so, what the scope of those immunities or affirmative defenses might

be. In Baldwin II, for instance, a majority of this court determined that

government officials and agents who engage in certain unconstitutional

conduct that harms plaintiffs may assert a modified type of qualified

immunity. 915 N.W.2d at 281 (majority opinion).

      The legislature may enact statutes that provide for reasonable

procedures for the assertion of state constitutional claims. Godfrey, 898
                                     22

N.W.2d at 873.    The legislature, however, cannot limit the substantive

scope of state constitutional violations.        Id. at 866–69, 874–75.

Determining the scope of constitutional rights is the province of the

judiciary. Id. To the extent the legislature seeks to regulate remedies, it

cannot reduce them below a constitutionally required minimum necessary

to ensure adequate vindication of state constitutional interests. Id. at 876.

      III. Liability of Municipalities for State Constitutional Torts of
Their Officers or Agents.

      A. Introduction. The first question posed in this case is whether

and under what circumstances a municipality may be held liable for the

state constitutional torts of its officers or agents. In considering such

questions, at least two lines of cases are frequently examined which,

though not binding, may be instructive.

      First, common law treatment of municipal liability prior to the

enactment of the constitution may be examined. An argument can be

made, for example, that the preconstitutional immunities available at

common law for claims against municipalities should apply to state

constitutional torts in the postconstitutional era.      The common law

influence theory is based on the proposition that state constitutional
founders would have intended any preconstitutional immunities generally

available to municipalities when faced with tort claims would also would

apply to torts arising from state constitutional provisions.

      Any analogy between common law and constitutional claims,

however, is at best inexact. A constitutional tort is designed not only to

provide compensation for injuries but also to vindicate constitutional

rights. Id. at 876–79 (plurality opinion); see Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 409, 91 S. Ct. 1999,

2011 (1971) (Harlan, J., concurring in the judgment). The high importance
                                    23

of ensuring that the basic constitutional rights in the Iowa Bill of Rights

are recognized and enforced is wholly absent in ordinary tort litigation

against municipalities. Godfrey, 898 N.W.2d at 876–79. A constitutional

tort seeks to compensate for harms to the public as well as harms to

individuals arising from the unconstitutional conduct of government. Id.

Unlike common law claims, constitutional violations are often not

accompanied by physical injuries and the deterrence arising from

parsimonious compensation for them is often very weak. Michael Wells,

Constitutional Remedies, Section 1983 and the Common Law, 68 Miss. L.J.

157, 215 (1998). For these reasons, a constitutional tort is thus said to

be “a fundamentally different legal artifact from common law tort.” Id. at

159; see also Sheldon H. Nahmod, Section 1983 and the “Background” of

Tort Liability, 50 Ind. L.J. 5, 32–33 (1974) (“[C]ourts in 1983 cases must

be careful not to let tort law alone determine 1983 liability; for not only

possibly different purposes, but different interests as well are usually at

stake.”). We should be careful not to allow common law limitations to

impede the vindication of state constitutional rights.

      Further, there is a certain amount of irony in the referral to common

law doctrine in determining the scope of recovery for constitutional harms

under 42 U.S.C. § 1983 (2017). Indeed, one of the reasons why § 1983

was passed was the inadequacy of common law remedies to protect

citizens from constitutional violations. Monroe v. Pape, 365 U.S. 167, 173–

74, 81 S. Ct. 473, 477 (1961), overruled on other grounds by Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035 (1978); see Note,

Damage Awards for Constitutional Torts: A Reconsideration After Carey v.

Piphus, 93 Harv. L. Rev. 966, 976 (1980).

      Finally, the genius of the common law was its flexibility and its

ability to evolve to meet contemporary realities. Thus, the common law
                                    24

method requires us not to adopt frozen concepts of the past but to study

them and adapt them, where appropriate, to the present. Nahmod, 50 Ind.

L.J. at 33. While the historical common law approach may inform us, it

cannot control the present.

      The second approach to analyzing constitutional torts involves

examination of cases under the Civil Rights Act of 1871, codified at 42

U.S.C. § 1983.    Section 1983 provides a statutory avenue for injured

parties to bring claims based on, among other things, violations of the

United States Constitution.    Cases under § 1983 have considered the

scope of liability and potential immunities available to government actors

when constitutional violations arise.

      In looking at the § 1983 cases for illumination in the context of state

constitutional torts, there are three important caveats. First, the cases

under § 1983 are statutory in nature and often turn on the specific

language and statutory history that is not germane to interpretation of a

state constitutional tort.

      Second, and of great importance, a plaintiff in a § 1983 action seeks

to thrust federal courts into the operations of state and local governments.

As a result of federalism implications, the § 1983 cases of the United

States Supreme Court seek to minimize federal intervention in these local

matters. See Note, Developments in the Law: Section 1983 and Federalism,

90 Harv. L. Rev. 1133, 1179 (1977). The end result is a tendency in the

§ 1983 cases to underenforce federal constitutional rights. Thus, while

the § 1983 cases are worth a careful read, it must be understood that they

are substantially influenced by the diluting federalism concerns that have

no application at all when a state court considers the scope, defenses, or

remedies available to vindicate state constitutional claims.
                                    25

      Third, in recent years, the United States Supreme Court has adopted

a rights-restricting approach to many aspects of constitutional law. It has

utilized a wide host of fairly technical legal doctrines such as pleading

standards, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949

(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,

1965 (2007), standing doctrine, City of Los Angeles v. Lyons, 461 U.S. 95,

105–06, 103 S. Ct. 1660, 1667 (1983) (denying injunction against police

chokeholds because plaintiff had only been injured once), and state-

leaning approaches to summary judgment, see, e.g., Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986), that tend to

materially lessen the scope of judicial remedies available for alleged

constitutional violations. For those who seek to avoid slippage between

constitutional norms and their enforcement, recent United States

Supreme court cases may have limited utility.

      B. Common Law History of Municipal Liability. There are many

common law cases addressing the potential liability of municipalities in

tort that predate state or federal constitutions. The verdict of common law

history is clear: municipalities at common law were generally liable in tort

to the same extent as corporations or any other private parties.

Specifically, there were virtually no authorities suggesting, for instance,

that a municipality was entitled to some kind of good-faith immunity. See

Owen v. City of Independence, 445 U.S. 622, 641–42, 100 S. Ct. 1398,

1411 (1980) (citing cases).

      The Iowa common law cases are consistent with the general rule.

See Cotes v. City of Davenport, 9 Iowa 227, 235 (1859) (stating it is well

established that a municipal corporation is liable in a negligence case to

the same extent as a private person). Thus, to the extent common law is
                                     26

our guide, municipalities should not be entitled to quasi-immunity for

their state constitutional torts.

      C. Approaches of United States Supreme Court Caselaw Under

42 U.S.C. § 1983. In a series of cases, the United States Supreme Court

has considered the scope of potential liability of municipalities under the

Civil Rights Act of 1871. 42 U.S.C. § 1983. In Monroe, 365 U.S. at 169,

81 S. Ct. at 474, petitioners alleged that thirteen police officers broke into

their home, made them stand naked in the living room, ransacked all the

rooms of the house, took them to the station for ten hours, interrogated

them, and then released them, all without a warrant. With respect to

individual defendants, the Monroe Court concluded that they acted under

color of law under § 1983 and, as a result, reversed lower court rulings to

the contrary. See id. at 187, 81 S. Ct. at 484. With respect to the City of

Chicago as defendant, however, the Monroe Court held that municipalities

were not “persons” under § 1983 and could not be held accountable under

the statute for inflicting state constitutional harms. Id. at 187–92, 81

S. Ct. at 484–86.

      Seventeen years after Monroe, however, the Supreme Court reversed

course in Monnell, 436 U.S. at 690, 98 S. Ct. at 2035. In Monnell, female

employees of New York governmental entities challenged a policy that

“compelled pregnant employees to take unpaid leaves of absence before

such leaves were required for medical reasons.” Id. at 660–61, 98 S. Ct.

at 2020.    The Monnell Court overruled Monroe in part and held that

municipalities were persons under § 1983. Id. at 690, 98 S. Ct. at 2035.

Further, the Monnell Court declared that municipalities could be held

liable under § 1983 when officials were executing “a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by

that body’s officers.” Id. at 690, 98 S. Ct. at 2035–36.
                                     27

      But the Monnell Court further held that Congress did not intend for

a municipality to be held liable “solely because it employs a tortfeasor—or,

in other words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Id. at 691, 98 S. Ct. at 2036. In reaching

this conclusion, the Monnell Court emphasized the word “causes” in the

statute. Id. at 692, 98 S. Ct. at 2036. The Monnell Court reasoned that in

order for the municipality to cause the constitutional infringement, there

must be a policy or practice giving rise to it. Id. at 694, 98 S. Ct. at 2037–

38. In the case presently before us, the city urges that we import the

Supreme Court’s statutory interpretation in Monnell into the substance of

our state constitutional law.

      In Monnell, the Supreme Court expressly noted that the question of

whether local government bodies were entitled to some form of official

immunity was not presented in the case. Id. at 701, 98 S. Ct. at 2041.

While the Monnell Court made clear that absolute immunity would not be

appropriate, it took no view on any other form of immunity that might be

available. Id.

      The Supreme Court addressed the question of whether a

municipality was entitled to some form of immunity in Owen, 445 U.S. at

635, 100 S. Ct. at 1407. In Owen, a former police chief brought an action

against the city, the city manager, and members of the city council alleging

he was terminated from employment without notice and an opportunity to

be heard. Id. at 630, 100 S. Ct. at 1404–05. The Owen Court rejected the

city’s assertion that it was entitled to qualified immunity. Id. at 638, 100

S. Ct. at 1409. The Owen Court noted the statute itself did not contain

any immunities. Id. at 635, 100 S. Ct. at 1407. Further, the Owen Court

canvassed the legislative history of the Civil Rights Act and found no

support for some form of municipal immunity. Id. at 635–38, 100 S. Ct.
                                      28

at 1407–09. The Owen Court further reviewed caselaw, concluding that it

was generally understood that a municipality’s tort liability was identical

to private organizations and individuals. Id. at 639–50, 100 S. Ct. at 1409–

15.

        The Owen Court proceeded to consider the public policy purposes of

recovery for constitutional wrongs. The Owen Court noted,

        A damages remedy against the offending party is a vital
        component of any scheme for vindicating cherished
        constitutional guarantees, and the importance of assuring its
        efficacy is only accentuated when the wrongdoer is the
        institution that has been established to protect the very rights
        it has transgressed.

Id. at 651, 100 S. Ct. at 1415.

        The Owen Court noted, however, that individual defendants under

§ 1983 had been afforded qualified immunity. Id. at 651, 100 S. Ct. at

1415.      Because of the presence of qualified immunity for individual

officers, the Owen Court noted that “victims of municipal malfeasance

would be left remediless if the city were also allowed to assert a good-faith

defense.”    Id.   The Owen Court emphasized that absent countervailing

considerations to the contrary, the injustice of a victim going without a

remedy “should not be tolerated.” Id.

        The Owen Court found no countervailing considerations and

emphasized the need to deter future violations. Id. at 651, 100 S. Ct. at

1416. The Owen Court noted that potential liability “should create an

incentive for officials who may harbor doubts about the lawfulness of their

intended actions to err on the side of protecting citizens’ constitutional

rights.”    Id. at 651–52, 100 S. Ct. at 1416.     The Owen Court further

observed that “[i]t hardly seems unjust to require a municipal defendant

which has violated a citizen’s constitutional rights to compensate him for

the injury suffered thereby.” Id. at 654, 100 S. Ct. at 1417. Additionally,
                                      29

the Owen Court cited a leading state court case for the proposition that

“the city, in its corporate capacity, should be liable to make good the

damage sustained by an [unlucky] individual.” Id. at 654–55, 100 S. Ct.

at 1417 (alteration in original) (quoting Thayer v. City of Boston, 36 Mass.

511, 515 (1837)).

      Finally, the Owen Court noted that the purpose of qualified

immunity for individual officers “is the concern that the threat of personal

monetary liability will introduce an unwarranted and unconscionable

consideration into the decisionmaking process, thus paralyzing the

governing official’s decisiveness and distorting his judgment on matters of

public policy.”   Id. at 655–56, 100 S. Ct. at 1418.        The Owen Court

emphasized, however, that the inhibiting effect is significantly reduced

when municipal liability is involved. Id. at 656, 100 S. Ct. at 1418. The

Owen Court observed that it is questionable whether the possibility of

municipal liability will deter decision-makers from conscientious exercise

of public authority. Id. In any event, the Owen Court regarded deterrence

in positive terms, noting concerns that should shape decision-making

include the constitutional rights of persons affected by the action. Id.

      The Supreme Court next considered the question of immunities in

City of Oklahoma City v. Tuttle, 471 U.S. 808, 810, 105 S. Ct. 2427, 2429

(1985). Here, a widow of a man shot by a police officer brought a § 1983

claim alleging that her husband had been killed without due process of

law as a result of a city providing inadequate training to police officers. Id.

at 811–12, 105 S. Ct. at 2430. The jury returned a verdict in favor of the

police officer but awarded $1,500,000 against the city. Id. at 813, 105

S. Ct. at 2431. The United States Court of Appeals for the Tenth Circuit

affirmed. Tuttle v. City of Oklahoma City, 728 F.2d 456, 461 (10th Cir.

1984).
                                    30

      The Tuttle Court reversed. 471 U.S. at 814, 105 S. Ct. at 2431. The

Tuttle Court emphasized that the plaintiff offered no evidence of a single

act by a municipal policymaker but only based her claim on a single

incident involving the use of excessive force and a subsequent inference

that the training of the officer must have been inadequate as a result of

city policy. Id. at 821, 105 S. Ct. at 2435. The Tuttle Court emphasized

that liability could not be imposed because the municipality hired one “bad

apple.” Id. The Tuttle Court declared that liability under Monnell cannot

be established without proof that the harm was “caused by an existing,

unconstitutional municipal policy, which policy can be attributed to a

municipal policymaker.” Id. at 824, 105 S. Ct. at 2436.

      Notably, Justice Stevens dissented. Id. at 834, 105 S. Ct. at 2441

(Stevens, J., dissenting).   Justice Stevens emphasized that at the time

§ 1983 was enacted, the doctrine of respondeat superior was well

recognized in the common law. Id. at 835, 105 S. Ct. at 2442. Justice

Stevens further noted that § 1983 was designed primarily to provide a

remedy for constitutional violations, which he characterized as “wrongs of

the most serious kind.” Id. at 839, 105 S. Ct. at 2444. He pointed out

that the act of the individual officer could be considered unconstitutional

only if he was acting on behalf of the state. Id. Justice Stevens reasoned

that if an officer’s conduct was sufficient to satisfy state action

requirements, the municipality should be liable under ordinary principles

of tort law. Id. at 839–40, 105 S. Ct. at 2444–45.

      In closing, Justice Stevens emphasized that respondeat superior

liability should apply with special force because of the special quality of

the interests at stake. Id. at 843, 105 S. Ct. at 2446. He argued that the

interests in compensating the victim, deterring violations by creating

sound municipal policy, and providing fair treatment toward individual
                                       31

officers performing difficult and dangerous work all point toward placing

primary responsibility on the municipal corporation. Id. at 843–44, 105

S. Ct. at 2446–47.

      The question of liability under § 1983 arose again in Pembaur v. City

of Cincinnati, 475 U.S. 469, 471, 106 S. Ct. 1292, 1294 (1986).             In

Pembaur, a physician brought a § 1983 action after sheriff’s deputies

chopped down the door of his office with an axe in an attempt to serve

legal process on two of his employees. Id. at 473–74, 106 S. Ct. at 1295.

The district court dismissed the action and the Sixth Circuit affirmed in

part and reversed in part. Id. at 475, 106 S. Ct. at 1296.

      In an opinion by Justice Brennan, the Pembaur Court held that the

county could be liable under § 1983 under the facts presented. Id. at 484,

106 S. Ct. at 1300.        In Pembaur, the decision to forcibly enter the

physician’s office was made in consultation with the county prosecutor.

Id. The Pembaur Court noted a single decision made by an authorized

municipal policymaker may amount to a policy under Monnell. Id. at 480,

106 S. Ct. at 1298. According to the Pembaur Court, liability under § 1983

could be established when “a deliberate choice to follow a course of action

is made from among various alternatives by the official or officials

responsible for establishing final policy with respect to the subject matter

in question.” Id. at 483, 106 S. Ct. at 1300.

      Justice Stevens wrote separately. Id. at 487, 106 S. Ct. at 1302

(Stevens, J., concurring in part and concurring in the judgment).          He

emphasized, again, that § 1983 was intended to impose liability on the

government for illegal acts, including those performed by agents in the

course of their employment. Id. at 489, 106 S. Ct. at 1303. According to

Justice   Stevens,   the     primary   responsibility   for   protecting   the

constitutional rights of the residents of the county rested on the shoulders
                                       32

of the county itself rather than on agents that were trying to do their jobs.

Id. at 490, 106 S. Ct. at 1304. According to Justice Stevens, “The county

has the resources and the authority that can best avoid future

constitutional violations and provide a fair remedy for those that have

occurred in the past.” Id.

         Finally, the Supreme Court considered § 1983 liability in Board of

County Commissioners v. Brown, 520 U.S. 397, 400, 117 S. Ct. 1382, 1386

(1997). In Brown, the plaintiff brought a § 1983 action in connection with

injuries suffered at a traffic stop where she was forcibly removed from her

automobile after it had been pulled over. Id. at 399–400, 117 S. Ct. at

1386. A verdict was entered for the plaintiff. Id. at 400, 117 S. Ct. at 1386

The Fifth Circuit affirmed, finding that the county could be held liable for

a sheriff’s single decision to hire a deputy after an inadequate background

check. Id.

         The Brown Court held that the plaintiff had not established a basis

for liability under § 1983. Id. The Brown Court concluded that the mere

hiring by the sheriff of a deputy whose qualifications might later be

questioned did not establish a policy under Monnell. Id. at 404–05, 117

S. Ct. at 1388–89.        The Brown Court emphasized the need to show

causation and fault in order to establish § 1983 liability. Id. at 406–07,

117 S. Ct. at 1389–90.

         Justice Breyer dissented. Id. at 430, 117 S. Ct. at 1401 (Breyer, J.,

dissenting).    He squarely took on Monnell.       See id.   He noted that the

rejection of respondeat superior in Monnell rested on poor history. Id. at

431, 117 S. Ct. at 1401. Justice Breyer criticized the caselaw splitting

hairs over what amounted to “policy” under Monnell. Id. at 433–34, 117

S. Ct.    at   1402–03.     Finally,   Justice   Breyer   noted   that current

developments, including the trend of cities indemnifying officers for their
                                    33

constitutional torts, suggest Monnell may be outdated. Id. at 436, 117

S. Ct. at 1403–04.

      D. Discussion of Respondeat Superior Liability. At the outset, I

would decline the city’s request that we cut and paste the Monnell “policy

or custom” approach into the caselaw on Iowa constitutional torts. As

demonstrated by Justice Stevens, the historical argument rejecting

respondeat superior is simply wrong. Tuttle, 471 U.S. at 835, 105 S. Ct.

at 2442. Further, from a policy perspective, as again noted by Justice

Stevens, the municipal entities themselves are in the best position to

modify their conduct and the conduct of employees in a fashion to secure

compliance with constitutional demands. Pembaur, 475 U.S. at 490, 106

S. Ct. at 1304; Tuttle, 471 U.S. at 843–44, 105 S. Ct. at 2446–47.

Therefore, from a deterrence perspective, it makes sense to apply

respondeat superior in the case of constitutional torts.          Further,

experience has shown that proving policy or custom is exceedingly

problematic.    The   Monnell   doctrine   has   introduced   unnecessary

complexity into the law. See Brown, 520 U.S. at 433–37, 117 S. Ct. at

1402–04.

      In addition, one of the reasons for the adoption of the Monnell

doctrine was to avoid thrusting federal courts into local affairs. See City

of Canton v. Harris, 489 U.S. 378, 392, 109 S. Ct. 1197, 1206 (1989)

(noting respondeat superior would lead to endless exercise of second-

guessing municipal employee training programs and would implicate

serious problems of federalism). The federalism problems simply are not

present when the claims are brought in a local state court.

      The next question is whether we should import qualified immunity

to claims against the municipality. In Baldwin II, the majority found a

modified form of qualified immunity applied to officers and agents of the
                                     34

state. 915 N.W.2d at 281. But that does not necessarily mean the same

type of immunity is available for municipal entities. On the question of

quasi-immunity for municipal entities, I think the proper answer is no for

the following reasons.

        First, I note that qualified immunity for municipal entities was not

part of the common law. See Owen, 445 U.S. at 641–42, 100 S. Ct. at

1411.    While plainly not dispositive, the lack of qualified immunity at

common law certainly undermines one of the rationales for rejecting

respondeat superior.      The notion of respondeat superior liability for

municipal entities similar to that applicable to corporations has not proven

problematic.

        Second, a damages remedy “is a vital component of any scheme for

vindicating cherished constitutional guarantees.” Id. at 651, 100 S. Ct. at

1415. Respondeat superior liability of a municipal entity ensures that

where there is a right, there is a remedy. See generally Bivens, 403 U.S.

at 400 n.3, 91 S. Ct. at 2007 n.3 (noting “modes of jurisprudential

thought” at the time of the United States Constitutional Convention that

“appeared to link ‘rights’ and ‘remedies’ in a 1:1 correlation”). Without it,

there will be a gap between established constitutional rights and the

remedies available to vindicate those rights. From a practical perspective,

the municipal entity is in a good position to pay compensation and spread

the cost among taxpayers.

        And, the majority’s decision in Baldwin II to adopt a modified form

of qualified immunity strengthens the case for adoption of respondeat

superior for claims against municipalities. As noted by Justice Brennan,

“[M]any victims of municipal malfeasance would be left remediless if the

city were also allowed to assert a good-faith defense. Unless countervailing
                                       35

considerations counsel otherwise, the injustice of such a result should not

be tolerated.” Owen, 445 U.S. at 651, 100 S. Ct. at 1415.

      Third, as noted by Justice Stevens, the municipal entity itself is

likely to be in the best position to implement corrective measures to

vindicate constitutional rights. Pembaur, 475 U.S. at 490, 106 S. Ct. at

1304; Tuttle, 471 U.S. at 843–44, 105 S. Ct. at 2446–47. If a municipal

entity is liable for state constitutional torts of its officers and agents, there

will be a strong incentive to make sure training programs are adequate

and that hiring processes properly screen potential city employees.

Liability against an individual officer does not offer a similar prospect of

forward-looking action to lessen the risk of future unconstitutional

conduct.

      Finally, for the reasons expressed in my dissent in Baldwin II, I do

not believe that municipal officers and agents are entitled to qualified

immunity. 915 N.W.2d at 281 (Appel, J., dissenting). As a result, from

my perspective, just as the agent or employee had no qualified immunity

defense, the municipality under respondeat superior would have no

qualified immunity defense.

      IV. Liability of the City for Punitive Damages.

      A. Introduction. One of the most remarkable developments in law

occurred in England during the late eighteenth century. The story is old

but good. John Wilkes was, literally, a royal pain, an irreverent, in your

face, irresponsible, arrogant, impulsive, and disrespectful dandy. Arthur

H. Cash, John Wilkes: The Scandalous Father of Civil Liberty 1–2 (2006)

[hereinafter Cash]. Some of us probably would not have liked him. After

the publication of a scurrilous article appeared in a political magazine

attacking the king and his advisors, the government went on a rampage,

searching dozens of locations and seizing scores of people—the usual
                                     36

suspects, no doubt—for telltale signs of responsibility, or complicity, in the

article’s publication.   Thomas K. Clancy, The Fourth Amendment: Its

History and Interpretation 36 (1st ed. 2008) [hereinafter Clancy]; Phillip A.

Hubbart, Making Sense of Search and Seizure Law: A Fourth Amendment

Handbook 41 (1st ed. 2005) [hereinafter Hubbart]; Nelson B. Lasson, The

History and Development of the Fourth Amendment to the United States

Constitution 43 (1937) [hereinafter Lasson]. Wilkes was seized and his

living quarters searched as part of the general dragnet. Clancy at 36;

Lasson at 44; Andrew E. Taslitz, Reconstructing the Fourth Amendment: A

History of Search and Seizure, 1789–1868 at 20 (2006).

       It turned out that the King and his retainers picked on the wrong

guy.    He sued those responsible for an unlawful search and won

substantial judgments in English courts. See Wilkes v. Wood (1763) 98

Eng. Rep. 489, 489, 498–99; Hubbart at 42; Lasson at 45. He received

substantial punitive damages against the individual officers involved.

Wilkes, 98 Eng. Rep. at 498; see Hubbart at 42; Lasson at 45. The Wilkes

cases were a seminal rule of law development, holding the King’s agents

personally liable for unlawful conduct.

       Wilkes’ success in the courts won wide international acclaim. His

name was well known in the American colonies. Cash at 2; Hubbart at

47; Taslitz at 21. His birthday was widely celebrated in the New World,

and he carried on correspondence with prominent Americans. Cash at 2;

Hubbart at 47; Taslitz at 21. In the famous Paxton’s case, James Otis

waxed eloquent about the events across the ocean, thrilling a young lawyer

in the audience, John Adams. Jacob W. Landynski, Search and Seizure

and the Supreme Court: A Study in Constitutional Interpretation 34–37

(1966) (quoting 10 John Adams, Life and Works of John Adams 247–48

(1856)). It is an unpleasant but revealing fact that John Wilkes Booth got
                                       37

his middle name from the Englishman, the point being that Wilkes and his

successes in court over the exercise of arbitrary government power were

well known through America decades after the events in question. See

Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 389

(2010).

       There is no question that the generation of Iowans who established

statehood knew the Wilkes story. The Iowa Supreme Court cited one of

his cases in 1855. Sanders v. State, 2 Iowa 230, 239 (1855).                Today,

however, Wilkes seems to have been forgotten, or perhaps more accurately

ignored, by ahistorical thinkers who view punitive damages as a virus that

needs to be isolated and ultimately eradicated.             But historically, the

awards of punitive damages for illegal government searches and seizures

in the Wilkes cases were thought to represent an epic success in the effort

to control unbridled government power.

       The Wilkes cases did not involve claims for punitive damages against

government entities, only against the officers. They do, however, stand for

the proposition that punitive damages in general can play an important

part   in   vindicating   the   public’s    interest   in   restraining   arbitrary

government.     And, the Wilkes cases are a predicate to an important

question: if punitive damages are available against individual defendants,

why should they not be available against municipalities?

       B. Punitive Damages Against Municipalities at Common Law.

As a general rule, municipalities at common law historically were not

subject to punitive damages. For instance, in Bennett v. City of Marion,

102 Iowa 425, 426, 71 N.W. 360, 360 (1897), the court held punitive

damages were not available against a municipal corporation.

       The court, however, took a different tack in Young v. City of

Des Moines, 262 N.W.2d 612, 614 (Iowa 1978) (en banc). In Young, the
                                     38

plaintiff brought a claim for false arrest against the city. Id. The Young

court noted that given the developments in tort law in Iowa, liability is now

the rule, with immunity being the exception.       See id. at 620–21.    The

Municipal Tort Claims Act did not expressly exclude punitive damages. Id.

at 622.

      The Young court acknowledged that the weight of authority at the

time was against allowing such damages absent a statute expressly

allowing them. Id. at 621. The Young court canvassed the public policy

rationale for excluding punitive damages and found them unpersuasive.

Id. at 621–22. The Young court noted that “if a governmental subdivision

be held answerable in punitive damages, more care will go into the

selection and training of its agents and employees.” Id. at 621–22. The

Young court further declared it was not convinced that the wealth of the

municipality is a problem as the amount of punitive damages was

determined by the sound judgment of the jury, subject to judicial review.

Id. at 622. The Young court declared that, where appropriate, punitive

damages against governmental subdivisions “will further deter unfounded

and oppressive peace officer conduct under the guise of official action.” Id.

The Young court noted, however, that if the legislature intended to bar

punitive damages, it could amend the applicable statute. Id.

      Several years later, the legislature amended the Iowa Municipal Tort

Claims Act to bar an award of punitive damages against municipalities for

cases in tort, partially abrogating Young. 1982 Iowa Acts ch. 1018, § 5

(codified at Iowa Code § 613A.4(5) (1983), now Iowa Code § 670.4(e)

(2019)). In Parks v. Marshalltown, 440 N.W.2d 377, 379 (Iowa 1989), the

court considered the validity of an award of punitive damages in a case

involving a verdict in favor of the plaintiff on a breach of contract theory.

The Parks court reasoned that if punitive damages were not available in a
                                      39

tort action, they should not be available in a contract action. Id. The

Parks court did not consider the validity of the legislation as applied to

constitutional torts. See id.

         C. Discussion of Punitive Damages in Godfrey. In Godfrey, 898

N.W.2d at 847 (majority opinion), we held that a plaintiff could bring a

state constitutional tort for violations of equal protection and due process

brought against government officials. With respect to the equal protection

claim, the defendants argued that the remedies provided by the Iowa Civil

Rights Act were exclusive and that a constitutional tort based on equal

protection could not be brought outside the statute.         Id. at 849, 873.

Because the Iowa Civil Rights Act did not provide for punitive damages, a

question arose whether the remedies provided by the statute were

“adequate” to vindicate the constitutional rights of the plaintiff. Id. at 875.

         Three members of the court concluded that the remedy provided by

the Iowa Civil Rights Act was not adequate because of the lack of a punitive

damages provision. Id. at 876–79 (plurality opinion). Chief Justice Cady

wrote the determinative opinion. Id. at 880–81 (Cady, C.J., concurring in

part and dissenting in part). He reasoned that punitive damages might

well be a required remedy in some state constitutional tort but not on the

claim presented in Godfrey. Id. at 881. He specifically left the door open

for an award of punitive damages in Wilkes-type cases.           Id.   For the

majority of the Godfrey court, it seems clear as a matter constitutional law

that punitive damages should be available in at least some cases

notwithstanding legislative action to the contrary. Id. at 876–79 (plurality

opinion); id. at 880–81 (Cady, C.J., concurring in part and dissenting in

part).

         D. Punitive Damages Against Municipalities for Constitutional

Torts in the United States Supreme Court. The seminal United States
                                     40

Supreme Court case regarding recovery of punitive damages against a

municipality in a § 1983 case is City of Newport v. Fact Concerts, Inc., 453

U.S. 247, 249, 101 S. Ct. 2748, 2750 (1981).        In City of Newport, an

organization licensed to present music concerts and a rock concert

promoter sued the city and city officials under § 1983 for cancelling a

music concert license. Id. at 252, 101 S. Ct. at 2752. The jury returned

a verdict in favor of the plaintiffs and awarded compensatory and punitive

damages, including a punitive damage verdict against the city of $200,000.

Id. at 253, 101 S. Ct. at 2752. The First Circuit affirmed. Fact Concerts,

Inc. v. City of Newport, 626 F.2d 1060, 1061 (1st Cir. 1980).

        The City of Newport Court vacated the court of appeals’ opinion. 453

U.S. at 271, 101 S. Ct. at 2762. The City of Newport Court noted that at

common law, immunity of municipal corporations from punitive damages

was not subject to serious question and continues to be the law in a

majority of jurisdictions.    Id. at 259, 101 S. Ct. at 2756.      Because

immunity from punitive damages was established at common law, the City

of Newport Court proceeded on the assumption that Congress would have

specifically addressed the issue had it intended to allow liability for

punitive damages under § 1983. Id. at 263, 101 S. Ct. at 2758.

        Turning to public policy, the City of Newport Court observed that an

award of punitive damages against a municipality punishes taxpayers. Id.

at 267, 101 S. Ct. at 2760. While the City of Newport Court recognized it

had previously suggested that punitive damages might in appropriate

circumstances be awarded to punish violations of constitutional rights,

the Court said that the retributive purpose was not significantly advanced

by exposing municipalities to punitive damages. Id. at 268, 101 S. Ct. at

2760.
                                     41

      The City of Newport Court also declared that it was “far from clear”

that municipal officers would be deterred by an award of punitive

damages. Id. at 268–69, 101 S. Ct. at 2760–61. The City of Newport Court

stated that a more effective remedy would be to assess punitive damages

against the offending public officials. Id. at 269, 101 S. Ct. at 2761. In

footnote 29, however, the City of Newport Court stated that “[i]t is perhaps

possible to imagine an extreme situation where the taxpayers are directly

responsible for perpetrating an outrageous abuse of constitutional rights”

but that such a scenario was sufficiently unlikely that the Court “need not

anticipate it here.” Id. at 267 n.29, 101 S. Ct. at 2760 n.29.

      Following City of Newport, plaintiffs have attempted to evade its

holding by pointing to footnote 29. For example, in Webster v. City of

Houston, 689 F.2d 1220, 1221 (5th Cir. 1982), plaintiff claimed the police

had adopted a custom of carrying guns or knives as “throw downs” to be

planted near suspects who are shot in dubious circumstances. The Fifth

Circuit, though finding the plight of the plaintiff “reprehensible,” held that

the actions were not sufficiently outrageous to support a punitive damages

claim against the municipality under footnote 29 of City of Newport. Id. at

1229. Similarly, in Heritage Homes of Attleboro, Inc. v. Seekonk Water

District, 670 F.2d 1, 2 (1st Cir. 1982), the First Circuit declined to allow

punitive damages where some voters engaged in “blatant raci[st]

discussions” before the water district voted to exclude a housing developer

willing to sell units to black families. The First Circuit reasoned that only

a small claque of voters engaged in the commentary and that there was no

widespread knowledgeable participation by taxpayers of the district. Id.

      Perhaps the most interesting response to City of Newport occurred

in Ciraolo v. City of New York, 216 F.3d 236 (2d Cir. 2000). In this case,

Judge Calabresi wrote both the majority opinion and a concurring opinion.
                                    42

Id. at 237 (majority opinion); id. at 242 (Calabresi, J., concurring). In

Ciraolo, a plaintiff claimed that after she was arrested on misdemeanor

charges in connection with a spat with her neighbor, she was taken to jail,

ordered to strip naked, and made to bend down and cough while visually

inspected. Id. at 237 (majority opinion). The city conceded liability as

there was a uniform policy to strip search all females upon their arrival at

the jail, and a trial was held on the question of damages. Id. at 238. A

jury awarded the plaintiff $19,645 in compensatory damages and

$5,000,000 in punitive damages. Id.

      In his majority opinion, Judge Calabresi found that footnote 29 in

City of Newport was not designed to allow punitive damages for especially

outrageous misconduct but instead, at most, was designed to address a

situation where taxpayers themselves participate in the unlawful action

such as where taxpayers adopt an unconstitutional policy through a

referendum. Id. at 240. Under the circumstances, Judge Calabresi, for

the court, reversed the award of punitive damages. Id. at 242.

      In his concurring opinion, Judge Calabresi expressed that although

the result in the case was compelled by the Supreme Court, he believed a

better outcome would have been to allow punitive damages. Id. at 242

(Calabresi, J., concurring). Judge Calabresi wrote that punitive damages

can ensure a wrongdoer bears all the costs of action where compensatory

damages alone result in “systematic underassessment of costs, and hence

in systematic underdeterrence.” Id. at 243. Judge Calabresi noted that

not all persons injured by an unconstitutional action by a municipality

will sue, either because compensatory damages are likely to be relatively

low or because their knowledge and access to the legal process are poor

and unsophisticated. Id. at 243–44.
                                    43

      As a result, compensatory damages in a wide category of cases are

an inaccurate indicator of the true level of harm inflicted by government

conduct. Id. at 244; see A. Mitchell Polinsky & Steven Shavell, Punitive

Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 889 (1998). Judge

Calabresi noted that although extracompensatory damages have been

labeled “punitive damages,” a more appropriate name for such damages

designed to avoid underdeterrence might be “socially compensatory

damages.” Ciraolo, 216 F.3d at 245. Judge Calabresi emphasized that

once it is recognized that remedying underdeterrence is an appropriate

function of extracompensatory damages against a municipality, and that

this goal is separate from punishment, the objections to punitive damages

lose much of their force. Id. at 248.

      E. Discussion of Availability of Punitive Damages in Actions

Against Municipalities.       In considering the availability of punitive

damages against municipalities, it is important to begin the discussion

with a recognition of the difference between a private dispute between two

parties and a state constitutional tort claim against government.       The

latter involves only private interests, but the former is imbued with an

important public interest.    Bivens, 403 U.S. at 409, 91 S. Ct. at 2011

(Harlan, J., concurring in the judgment); Godfrey, 898 N.W.2d at 876–79

(plurality opinion).   That important public interest is in ensuring that

government not violate the fundamental rights enshrined in the very first

article of the Iowa Constitution, the provision characterized as “the most

important provisions” of the entire constitution. Godfrey, 898 N.W.2d at

870 (majority opinion).

      Further, in examining the question of deterrence, Calabresi has it

right, namely, that in addition to specific deterrence involving the parties

to a controversy, there is the question of general deterrence, or what he
                                      44

calls “socially compensatory damages.” Ciraolo, 216 F.3d at 245. In this

context, it is important that payment of relatively small amounts to

particular litigants do not become a license for unconstitutional conduct

that simply becomes a routine part of overhead for government operations.

         In considering the deterrence issue, the City of Newport Court

questioned whether a punitive damage award against a public entity would

be effective. City of Newport, 453 U.S. at 268–69, 101 S. Ct. at 2760–61.

But a year earlier in Owen, the Court indicated that compensatory

damages would create an incentive for government to conform its conduct

to constitutional concerns. 445 U.S. at 651–52, 100 S. Ct. at 1415; see

Michael Wells, Punitive Damages for Constitutional Torts, 56 La. L. Rev.

841, 866 (1996). If compensatory damages against a government entity

provide deterrence, it is hard to see why punitive damages would not also

deter.

         Yet, while punitive damages should not be categorically unavailable,

they are not appropriate in an ordinary case involving liability solely

arising because of respondeat superior principles. Instead, liability should

arise only where the unconstitutional conduct arises to willful and wanton

misconduct. Where there is exposure to punitive damages, the potential

unconstitutional actions will be “squarely on the radar screens of

responsible officials.” Myriam E. Gilles, In Defense of Making Government

Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 Ga. L. Rev.

845, 873 (2001). Thus, the reprehensive policies such as conducting body

cavity searches on all misdemeanor female defendants arriving at the jail

as in Ciraolo would be subject to an award of punitive damages.

         In my view, maintaining the adequacy of remedies for state

constitutional torts is the responsibility of this court. The legislature can

establish reasonable processes for the prosecution of constitutional torts
                                     45

but cannot substantively reduce the available remedies below a

constitutionally acceptable point.        Godfrey, 898 N.W.2d at 876–79

(plurality opinion). In the narrow class of cases mentioned above, I would

insist on the availability of punitive damages against the municipality

notwithstanding legislative action that seeks to limit the availability of the

remedy.

      Regretfully, the majority does not agree.         But the majority’s

acceptance of the legislature’s limitation on punitive damages against

municipal entities for constitutional torts is, or at least in my view should

be, dependent upon the availability of punitive damages in Wilkes-type

actions. Although a Wilkes-type case imposing punitive damages upon

individual actors is not before us, we must approach immunity issues in

a systemic fashion.     Otherwise, comparatively narrow applications of

rights-restrictive doctrine may be palatable at each step but cumulatively

create an unacceptable regime for state constitutional torts.            This

observation is consistent with the Supreme Court’s approach in City of

Newport, where the refusal to extend punitive damage liability to

municipalities rested, at least in part, on the availability of punitive

damages against an individual officer.

     V. Attorney Fees for Constitutional Torts Under Common Law
Exceptions to the American Rule.

      The last question is whether the plaintiff in this case might be

entitled to attorney fees. There is no state statute authorizing attorney

fees for successful prosecution of state constitutional torts.      We have

followed the American rule that attorney fees “are generally not recoverable

as damages in the absence of a statute or a provision in a written contract.”

Botsko v. Davenport Civil Rights Comm’n, 774 N.W.2d 841, 845 (Iowa 2009)

(quoting Kent v. Emp’t Appeal Bd., 498 N.W.2d 687, 689 (Iowa 1993) (per
                                    46

curiam)). While the general rule is that attorney fees are not recoverable

absent a statute or contractual provision, the question in this case is

whether there are exceptions to the general rule that may be applicable.

       The majority has concluded that attorney fees in this case may be

awarded if the opposing party “acted in bad faith, vexatiously, wantonly,

or for oppressive reasons.” Hockenberg Equip. Co. v. Hockenberg’s Equip.

& Supply Co. of Des Moines, Inc., 510 N.W.2d 153, 158 (Iowa 1993) (quoting

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258–59, 95

S. Ct. 1612, 1622 (1975)). This common law exception to the general rule

against award of attorney fees is well established and may well be

applicable in this case depending upon the ultimate factual showing made

at trial.

       The plaintiff in this case, however, presents another reason for an

award of attorney fees.     The plaintiff asserts another common law

exception to the general American rule, namely, that attorney fees and

costs may be awarded under a “private attorney general” theory.         The

private attorney general theory as a basis for an award of attorney fees has

been embraced in many states. See, e.g., Arnold v. Ariz. Dep’t of Health

Servs., 775 P.2d 521, 537 (Ariz. 1989) (en banc); Serrano v. Priest, 569

P.2d 1303, 1315 (Cal. 1977) (en banc); Sierra Club v. Dep’t of Transp., 202

P.3d 1226, 1270 (Haw. 2009); Hellar v. Cenarrusa, 682 P.2d 524, 531

(Idaho 1984); Bedard v. Town of Alexandria, 992 A.2d 607, 611 (N.H.

2010); Deras v. Myers, 535 P.2d 541, 550 (Or. 1975) (en banc).          See

generally Ann K. Wooster, Annotation, Private Attorney General Doctrine—

State Cases, 106 A.L.R.5th 523 (2003) (collecting cases). Although the

private attorney general exception to the American rule was being

embraced in lower federal courts, the Supreme Court put this development
                                     47

to a full stop in federal courts in Alyeska Pipeline, 421 U.S. at 254–69, 95

S. Ct. at 1620–27.

      The private attorney general theory is not a wide-open mechanism

whereby any successful plaintiff can obtain attorney fees. Instead, it is a

limited exception to the generally applicable American rule. In the seminal

case of Serrano, the California Supreme Court held that attorney fees on a

private attorney general theory could be awarded if (1) the litigation

benefited a large number of people, (2) private enforcement of the rights

involved was required, and (3) the issues have sufficient social importance.

569 P.2d at 1314. There are, of course, variations in the private attorney

general doctrine from jurisdiction to jurisdiction.         See William B.

Rubenstein, On What a “Private Attorney General” Is—And Why It Matters,

57 Vand. L. Rev. 2129, 2142 (2004).

      I would generally adopt the three-pronged test articulated in Serrano

for determining whether attorney fees could shift based on a private

attorney general theory in cases involving a state constitutional tort. In

particular, it seems clear that in cases involving alleged search and seizure

violations under the state constitution, the second and third criteria are

likely met.

      The only question is whether a substantial number of persons would

benefit from the litigation. A significant benefit does not require a tangible

asset or concrete gain but may arise simply from the effectuation of a

fundamental constitutional or statutory policy. Slayton v. Pomona Unified

Sch. Dist., 207 Cal. Rptr. 705, 714 (Ct. App. 1984). On the other hand, an

individual claim with little public benefit, such as that arising from a

singular miscalculation of overtime benefit, is not sufficient.      State v.

Boykin, 538 P.2d 383, 388 (Ariz. 1975) (en banc); see also City of Clarkston

v. City of Clarkston Civil Serv. Comm’n—Fire, No. 15119–1–III, 1997 WL
                                     48

282501, at *5–6 (Wash. Ct. App. May 29, 1997) (addressing reinstatement

of police chief). As with the other issues, I would not engage in application

of this test to the facts of this case. I would only hold that attorney fees

may be awarded under the private attorney general theory described

above. The majority opinion does not address the private attorney general

question, and it thus remains an open issue.

      VI. Conclusion.

      I would answer the certified questions as follows: the municipality

is not entitled to good-faith immunity, punitive damages may be available

against a municipality upon a proper showing, and attorney fees may be

available under the bad faith or private attorney general theories.
