              IN THE SUPREME COURT OF IOWA
                              No. 18–1280

                          Filed June 28, 2019


JOSHUA VENCKUS,

      Appellee,

vs.

CITY OF IOWA CITY; ANDREW RICH; JOHNSON COUNTY, IOWA;
ANNE LAHEY; NAEDA ELLIOTT; and DANA CHRISTIANSEN,

      Appellants.



      Appeal from the Iowa District Court for Johnson County, Chad

Kepros, Judge.



      Interlocutory appeal from the denial of motions to dismiss claims

arising out of an allegedly wrongful prosecution. AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.



      Robert M. Livingston and Kristopher K. Madsen of Stuart Tinley Law
Firm, LLP, Council Bluffs, and Susan D. Nehring, Assistant County

Attorney, Iowa City, for appellants Johnson County, Anne Lahey, Naeda

Elliott, and Dana Christiansen.

      Eric R. Goers and Susan Dulek, Assistant City Attorneys, for

appellants City of Iowa City and Andrew Rich.



      Martin A. Diaz, Swisher, and M. Victoria Cole, Cedar Rapids, for

appellee.
                                    2

      Alan R. Ostergren, Muscatine, for amici curiae Iowa County

Attorneys Association and Iowa State Association of Counties.

      Joel E. Fenton of Law Offices of Joel E. Fenton, PLC, Des Moines,

for amicus curiae Iowa Association for Justice.
                                     3

McDONALD, Justice.

      Joshua Venckus was charged with sexual abuse in the second

degree and acquitted. Following acquittal, Venckus filed this civil action

against the police investigator, the prosecutors, and the municipalities

that investigated and prosecuted the criminal case.      Venckus asserted

common law claims and state constitutional claims against the

defendants. The defendants moved to dismiss Venckus’s claims on the

grounds the defendants were immune from suit, the claims were time

barred, and the state constitutional claims were disallowed because an

adequate nonconstitutional remedy existed. The district court denied the

defendants’ motions to dismiss, and we granted the defendants’

applications for interlocutory appeal.

                                     I.

      This court reviews rulings on motions to dismiss for the correction

of legal error. Godfrey v. State, 898 N.W.2d 844, 847 (Iowa 2017). To the

extent that we review constitutional claims, the standard of review is

de novo. See McGill v. Fish, 790 N.W.2d 113, 116–17 (Iowa 2010). In

reviewing the ruling, “we accept all well-[pleaded] facts in the petition as

true.” Godfrey, 898 N.W.2d at 847.

                                     II.

      In February 2013, Venckus resided in Iowa City, Johnson County,

Iowa. On the weekend of February 15–17, Venckus left Iowa City and

spent the weekend at his parents’ home in Chicago, Illinois.          While

Venckus was in Chicago, Venckus’s roommates hosted a party at their

residence. After the party ended, a man broke into the residence and

sexually assaulted an intoxicated and incapacitated woman who had

remained in the home. The woman managed to escape during the assault

and obtain assistance.
                                     4

      Iowa City Police Department Investigator Andrew Rich was the

principal investigator assigned to the case. The victim reported a single

assailant. The police found a wallet outside a window well of the residence.

The wallet belonged to Ryan Lee Markley.       The police found Markley’s

handprint on the basement window used for entry. The police found a

boot print matching Markley’s boot on a chair underneath the window.

The police recovered a marijuana pipe stolen from the residence in

Markley’s apartment. Markley’s DNA matched DNA found on the victim’s

body. However, DNA of “one single sperm found in the [victim’s] cervix”

matched Venckus’s DNA.

      The police interviewed Venckus and his roommates. All interviewees

explained Venckus was in Chicago at the relevant time. To prove his alibi,

Venckus turned over his cell phone and bank card to Rich.          Venckus

provided the names of alibi witnesses. Venckus also obtained an expert

witness who accounted for the presence of Venckus’s DNA. The assault

occurred in Venckus’s home. The blanket that covered the victim while

she slept was from Venckus’s bedroom, and the blanket was replete with

Venckus’s DNA.      Venckus’s expert witness report showed “the DNA

evidence of one sperm found in the cervix represented evidence of a

transfer from the blanket covering the victim and could not represent the

sole evidence of DNA left by a rapist.”

      Rich arrested Venckus on January 24, 2014, on the charge of sexual

abuse in the second degree. The affidavit supporting the arrest warrant

provided as follows:

      This Def[endant] stated during an interview that he was not
      even in [Iowa City] when the attack occurred. However, DNA
      evidence developed in the course of this investigation proves
      the Def[endant] was not only present but participate[d] in this
      attack and left the victim with multiple injuries requiring
      immediate medical attention.
                                              5

       The Johnson County Attorney’s Office—specifically defendants Anne

Lahey, Naeda Elliott, and Dana Christiansen—prosecuted the case. From

August 2015 through the criminal trial in September 2016, Venckus’s

defense counsel uploaded exculpatory information onto a web-based file

sharing service, which was made available to the police and prosecutors.

The prosecutors took the case to trial. Venckus was acquitted.

       Subsequently, Venckus filed the petition at issue. Venckus asserted

claims against Investigator Rich and the City of Iowa City (collectively

police defendants) for defamation, abuse of process, and malicious

prosecution.          Venckus       asserted      claims     against     Lahey,      Elliott,

Christiansen, and Johnson County (collectively prosecutor defendants) for

abuse of process. Against all defendants, Venckus asserted tort claims

arising under the Iowa Constitution, including violations of the following:

the rights to freedom of movement and association under article I, section

1; the right to liberty arising under article I, section 1; the rights to due

process, a fair trial, and equal protection guaranteed by article I, sections

6 and 9; and the right against unreasonable search and seizure

guaranteed by article I, section 8.1

       The defendants moved to dismiss the petition.                      The prosecutor
defendants contended they were absolutely immune from suit. The police

defendants contended they were absolutely immune from suit, the



       1In   Godfrey v. State, this court held the State of Iowa and state officials acting in
their official capacities could be sued directly for violations of the equal protection and
due process clauses of the Iowa Constitution but only where state law does not otherwise
provide an adequate damage remedy. 898 N.W.2d at 846–47; id. at 880–81 (Cady, C.J.,
concurring in part and dissenting in part). The parties have not asked us to reconsider
Godfrey, to consider whether a Godfrey-type claim can be asserted for alleged violations
of the Iowa Constitution other than those recognized in Godfrey, or to determine whether
Godfrey-type claims can be asserted against municipalities. In the absence of any
argument on these issues, we assume without deciding Venckus has asserted cognizable
constitutional claims for damages.
                                       6

plaintiff’s claims were barred by the statute of limitations, and the state

constitutional    claims     were    disallowed     because     an       adequate

nonconstitutional remedy existed under the Iowa Municipal Tort Claims

Act (IMTCA). The district court granted the motions to dismiss. Venckus

filed a motion to reconsider. The district court granted the motion and

denied in entirety the motions to dismiss.

                                      III.

      The prosecutor defendants contend they are absolutely immune

from suit pursuant to the judicial process immunity.          In resolving the

argument, we first discuss the nature and scope of the judicial process

immunity. We then determine whether the district court erred in denying

the prosecutor defendants’ motion to dismiss.

                                       A.

      To advance the practical administration of government, the law

recognizes certain government officials should be absolutely immune from

suit for conduct relating to the discharge of certain government functions.

See Hlubek v. Pelecky, 701 N.W.2d 93, 96 (Iowa 2005) (“Absolute immunity

ordinarily is available to certain government officials such as legislators,

judges, and prosecutors acting in their official capacities . . . .”).

      One well-established immunity is the judicial process immunity.

Under the judicial process immunity, government officials are absolutely

immune from suit and damages for conduct “intimately associated with

the judicial phase of the criminal process.” Minor v. State, 819 N.W.2d

383, 394 (Iowa 2012) (quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96

S. Ct. 984, 995 (1976)).     The judicial process immunity protects both

government officials and their employing municipalities.          See Moser v.

County of Black Hawk, 300 N.W.2d 150, 152, 153 (Iowa 1981) (affirming

dismissal of malicious prosecution claim against county based on county
                                      7

attorney’s entitlement to absolute immunity); Burr v. City of Cedar Rapids,

286 N.W.2d 393, 396 (Iowa 1979) (“The public policy which requires

immunity for the prosecuting attorney, also requires immunity for both

the state and the county for acts of judicial and quasi-judicial officers in

the performance of the duties which rest upon them . . . .” (quoting Gartin

v. Jefferson County, 281 N.W.2d 25, 31 (Iowa Ct. App. 1979))).

      It is well established the judicial process immunity applies to

common law torts, but it is a question of first impression whether the

judicial process immunity applies to torts arising under the Iowa

Constitution.   In Baldwin v. City of Estherville, decided last term, we

intimated the immunity would apply, noting “[c]onstitutional torts are

torts, not generally strict liability cases.”   915 N.W.2d 259, 281 (Iowa

2018).   We further noted traditional immunities “could apply to state

constitutional claims.” Id. We did not decide the issue, however, because

the issue was not directly presented. See id.

      Now that the question is directly presented, we make explicit what

was implicit in Baldwin: the judicial process immunity applies to state

constitutional torts. This conclusion necessarily flows from the nature of

the immunity itself. “When faced with a question of whether a government

official has absolute immunity from civil liability . . . , we employ a

‘functional approach’ to determine whether those actions ‘fit within a

common-law tradition of absolute immunity.’ ” Minor, 819 N.W.2d at 394

(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 2613

(1993)). “Under this ‘functional approach,’ we do not look to the identity

of the government actor, but instead to ‘the nature of the function

performed.’ ” Id. (quoting Forrester v. White, 484 U.S. 219, 229, 108 S. Ct.

538, 545 (1988)); see Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S. Ct.

496, 501 (1985) (“Absolute immunity flows not from rank or title or
                                       8

‘location   within   the   Government,’    but   from   the   nature    of   the

responsibilities of the individual official.” (quoting Butz v. Economou, 438

U.S. 478, 511, 98 S. Ct. 2894, 2913 (1978))). We grant absolute immunity

for only

      those governmental functions that were historically viewed as
      so important and vulnerable to interference by means of
      litigation that some form of absolute immunity from civil
      liability was needed to ensure that they are performed “with
      independence and without fear of consequences.”

Rehberg v. Paulk, 566 U.S. 356, 363, 132 S. Ct. 1497, 1503 (2012) (quoting

Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1218 (1967)).

      The functional approach demonstrates the “[i]mmunity . . . is not for

the protection of the [official] personally, but for the benefit of the public.”

Beck v. Phillips, 685 N.W.2d 637, 643 (Iowa 2004). The immunity benefits

the public by protecting government officials involved in “the judicial

process from the harassment and intimidation associated with litigation.”

Minor, 819 N.W.2d at 394 (emphasis omitted) (quoting Burns v. Reed, 500

U.S. 478, 494, 111 S. Ct. 1934, 1943 (1991)). The same public-interest

considerations that justify the judicial process immunity apply whether

the legal claims arise under common law or the state constitution. See
Butz, 438 U.S. at 512, 98 S. Ct. at 2913 (“Absolute immunity is thus

necessary to assure that judges, advocates, and witnesses can perform

their respective functions without harassment or intimidation.”).

      We draw further support for our conclusion the judicial process

immunity applies to state constitutional torts from analogous federal

cases. The federal circuit courts unanimously hold the judicial process

immunity applies to federal constitutional claims brought pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388, 91 S. Ct. 1999 (1971). See Humphries v. Houghton, 442 F. App’x
                                     9

626, 628–29, 629 n.5 (3d Cir. 2011) (per curiam) (stating absolute

immunity for federal prosecutor applies to Bivens claims); Rodriguez v.

Lewis, 427 F. App’x 352, 353 (5th Cir. 2011) (per curiam) (“Because

Martinez was acting within the scope of his employment as a prosecutor

during the sentencing hearing, he enjoys absolute immunity from Bivens

liability.”); Pangelinan v. Wiseman, 370 F. App’x 818, 819 (9th Cir. 2010)

(holding absolute immunity applies to Bivens claims against federal judges

and federal prosecutors); Nogueras-Cartagena v. U.S. Dep’t of Justice, 75

F. App’x 795, 798 (1st Cir. 2003) (per curiam) (“The existence of absolute

prosecutorial immunity is a matter of function . . . . In this instance, the

challenged conduct . . . was intimately associated with the judicial phase

of the criminal process.   It was, therefore, essentially prosecutorial in

nature. Hence, immunity attaches.” (Citations omitted.)); Blakely v. United

States, 276 F.3d 853, 871 (6th Cir. 2002) (holding absolute immunity

barred Bivens claim); Benson v. Safford, 13 F. App’x 405, 407 (7th Cir.

2001) (holding in Bivens action that “[p]rosecutors . . . are absolutely

immune from suits challenging conduct intimately associated with the

criminal judicial process”); Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir.

2000) (per curiam) (holding absolute immunity applies to Bivens claims);

Lyles v. Sparks, 79 F.3d 372, 376 (4th Cir. 1996) (“In Bivens-type actions,

as at common law, prosecutors enjoy absolute immunity for conduct

‘intimately associated with the judicial phase of the criminal process.’ ”

(quoting Imbler, 424 U.S. at 430, 96 S. Ct. at 995)); Thompson v. Walbran,

990 F.2d 403, 404 (8th Cir. 1993) (per curiam) (holding absolute immunity

barred Bivens claim against a prosecutor); Daloia v. Rose, 849 F.2d 74, 75

(2d Cir. 1988) (per curiam) (“The prosecutor’s activities in this case were

all ‘intimately associated with the judicial phase of the criminal process,’

and he is therefore entitled to absolute immunity.” (quoting Imbler, 424
                                     10

U.S. at 430, 96 S. Ct. at 995)); Tripati v. U.S. Immigration & Naturalization

Serv., 784 F.2d 345, 346–47 (10th Cir. 1986) (per curiam) (finding a U.S.

attorney was absolutely immune from a Bivens claim).

      Venckus appears to recognize the judicial process immunity applies

here. Rather than distinguishing this case from our precedents, he asks

us to do away with absolute immunity regardless of the source of the legal

claim and instead adopt a rule of qualified immunity under the all-due-

care standard set forth in Baldwin. See 915 N.W.2d at 279–81. In support

of his position with respect to his constitutional claims, Venckus argues

absolute immunity is inconsistent with the Iowa Constitution.           With

respect to all of his claims, Venckus argues prosecutorial misconduct and

wrongful convictions are rampant and absolute immunity contributes to

this because it gives government officials a wide berth to engage in

misconduct.

      We reject Venckus’s request to do away with the judicial process

immunity.     First, with respect to his constitutional claims, it appears

Venckus conflates two separate issues. The judicial process immunity is

a common law immunity. It bars suit and damages against government

officials for conduct intimately associated with the judicial process.     It

immunizes conduct without regard to the substantive source of the legal

claim. In contrast, the all-due-care immunity set forth in Baldwin is a

constitutional immunity. It bars suit and damages only for constitutional

claims and only when the government official proves “that he or she

exercised all due care to conform with the requirements of the law.” Id. at

260–61. The Baldwin immunity is in addition to any other common law

immunities or defenses available and not a comprehensive substitute

immunity.
                                     11

      Second, Venckus offers no compelling justification to overrule our

long-standing precedents holding the judicial process immunity applies to

common law claims. “From the very beginnings of this court, we have

guarded the venerable doctrine of stare decisis and required the highest

possible showing that a precedent should be overruled before taking such

a step.” Kiesau v. Bantz, 686 N.W.2d 164, 180 n.1 (Iowa 2004) (Cady, J.,

dissenting), overruled by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708

& n.3 (Iowa 2016); see Hildreth v. Tomlinson, 2 Greene 360, 361 (Iowa

1849).   Venckus has not established our prior decisions should be

overruled.   To the contrary, as discussed above, the judicial process

immunity is of long standing in Iowa and was recently reaffirmed in Minor.

See 819 N.W.2d at 397–99.

      Third, with respect to all of his claims, Venckus’s policy concerns

are not new. In crafting the judicial process immunity over the course of

time, our cases have considered the issues of prosecutorial misconduct,

the risk of wrongful conviction, and the need for unencumbered judicial

process. The cases have struck the right policy balance between these

competing concerns. See Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.

1949) (“As is so often the case, the answer must be found in a balance

between the evils inevitable in either alternative. In this instance it has

been thought in the end better to leave unredressed the wrongs done . . .

than to subject those who try to do their duty to the constant dread of

retaliation.”). While the absolute immunity is necessary for the proper

functioning of the judicial process, it does not give government officials

carte blanche to engage in misconduct. The judicial process immunity is

narrowly tailored to immunize only conduct “intimately associated with

the judicial phase of the criminal process.” See Minor, 819 N.W.2d at 394–

95 (quoting Imbler, 424 U.S. at 430, 96 S. Ct. at 995). Further, there are
                                     12

other mechanisms that restrain official conduct, including vigorous

judicial oversight in the district court, appellate review, postconviction-

relief proceedings, attorney disciplinary proceedings, human resource

management, and elections. As the Supreme Court explained,

      [T]he safeguards built into the judicial process tend to reduce
      the need for private damages actions as a means of controlling
      unconstitutional conduct. The insulation of the judge from
      political influence, the importance of precedent in resolving
      controversies, the adversary nature of the process, and the
      correctability of error on appeal are just a few of the many
      checks on malicious action by judges.             Advocates are
      restrained not only by their professional obligations, but by
      the knowledge that their assertions will be contested by their
      adversaries in open court. Jurors are carefully screened to
      remove all possibility of bias. Witnesses are, of course, subject
      to the rigors of cross-examination and the penalty of perjury.
      Because these features of the judicial process tend to enhance
      the reliability of information and the impartiality of the
      decisionmaking process, there is a less pressing need for
      individual suits to correct constitutional error.

Butz, 438 U.S. at 512, 98 S. Ct. at 2914 (footnote omitted). Against this

regulatory backdrop, the abandonment of the absolute immunity in favor

of qualified immunity is unnecessary to achieve Venckus’s stated policy
objectives. This is true without regard to the source of the legal claim.

      For these reasons, we hold a government official is absolutely

immune from suit and damages with respect to any claim arising out of

the performance of any function intimately related to the judicial phase of

the criminal process whether the claim arises at common law or under the

state constitution.

                                     B.

      We next address the application of the judicial process immunity to

the prosecutor defendants.      The district court denied the prosecutor

defendants’ motion to dismiss on two grounds. First, with respect to the

state constitutional claims, the district court appeared to hold the
                                     13

prosecutor defendants could assert only a qualified immunity rather than

an absolute immunity. Second, the district court held the claim for abuse

of process was not sufficiently developed and directed “the defendants to

raise their defenses as to immunity again at an appropriate time when the

actual facts underlying these allegations are more fully known.” With one

exception, which will be discussed below, we conclude the district court

erred in denying the prosecutor defendants’ motion to dismiss.

      As discussed in the preceding section, the judicial process immunity

applies to common law torts and state constitutional torts, and the district

court erred in holding to the contrary. It is long-established the absolute

immunity applies to the conduct of prosecutors. In Blanton v. Barrick, we

held prosecutors are entitled to absolute immunity related to the

prosecution of criminal cases.    See 258 N.W.2d 306, 309 (Iowa 1977)

(“Clearly, as previously stated, prosecutors performing their official duties

are quasi-judicial officials, not non-judicial functionaries and should be

able to vigorously proceed with their tasks unhampered by the fear of

unlimited civil litigation.”). In subsequent cases, we adopted and applied

a functional approach to conclude prosecutors are entitled to absolute

immunity for activities “intimately associated with the judicial phase of the

criminal process.” Hike v. Hall, 427 N.W.2d 158, 159 (Iowa 1988) (quoting

Imbler, 424 U.S. at 430, 96 S. Ct. at 995).

      The district court also erred in concluding the claims against the

prosecutor defendants were not sufficiently clear to resolve the prosecutor

defendants’ assertion of absolute immunity. Venckus’s primary complaint

is the prosecutor defendants continued a “reckless crusade” to convict

Venckus in the face of “overwhelming evidence” of Venckus’s innocence.

Venckus argues the prosecutors refused to drop the charges because they

did not want to admit they had charged an innocent man. However, the
                                       14

decisions to initiate a case and continue prosecution are at the core of the

judicial process immunity. See Imbler, 424 U.S. at 430–31, 96 S. Ct. at

995 (1976) (finding “initiating a prosecution and . . . presenting the State’s

case” were parts of the judicial process and necessitated immunity); Beck,

685 N.W.2d at 643 (“The decision to bring criminal charges is clearly

‘intimately associated with the judicial phase of the criminal process’ . . . .”

(quoting Hike, 427 N.W.2d at 159; and Burr, 286 N.W.2d at 396)); Hike,

427 N.W.2d at 160 (holding “a prosecutor’s use of his authority to drop or

continue pending criminal charges” was absolutely immune regardless of

whether the charges had a basis); Blanton, 258 N.W.2d at 310 (“A public

prosecutor acting in his official capacity is absolutely privileged to initiate,

institute, or continue criminal proceedings.” (quoting Restatement

(Second) of Torts § 656, at 414 (Am. Law Inst. 1977))). This is true without

regard to motive or intent. The “immunity applies even when the [official]

is accused of acting maliciously and corruptly because as a matter of policy

it is in the public best interest that [officials] should exercise their function

without fear of consequences and with independence.”              Blanton, 258

N.W.2d at 308; accord Beck, 685 N.W.2d at 642 (“Because we apply a

functional analysis, immunity attaches even when the prosecutor is

alleged to have acted for improper reasons.”).

      Much of the remainder of Venckus’s claims relate to the prosecutor

defendants’    strategic   and    discretionary    decisions    regarding    the

prosecution of the case. Venckus challenges the prosecutors’ decision to

enter into a lenient plea agreement with Markley in exchange for Markley’s

testimony. Venckus challenges the prosecutors’ subsequent decision to

not call Markley as a witness despite the favorable plea agreement.

Venckus challenges the prosecutors’ decision to “shop” around for an
                                     15

expert witness to rebut Venckus’s DNA expert. And Venckus challenges

the prosecutors’ evaluation of the alibi evidence presented.

      None of this challenged conduct is actionable. Venckus admits all

of the prosecutor defendants’ challenged conduct occurred after the

development of probable cause to arrest and charge Venckus.              See

Buckley, 509 U.S. at 274 n.5, 113 S. Ct. at 2616 n.5 (“The reason that lack

of probable cause allows us to deny absolute immunity to a state actor for

the former function (fabrication of evidence) is that there is no common-

law tradition of immunity for it, whether performed by a police officer or

prosecutor. The reason that we grant it for the latter function (malicious

prosecution) is that we have found a common-law tradition of immunity

for a prosecutor’s decision to bring an indictment, whether he has

probable cause or not.”). The decision to offer a plea bargain is necessarily

a vital part of the judicial phase of the criminal process. See Hike, 427

N.W.2d at 160 (collecting cases for the proposition that a prosecutor’s

actions in the plea bargain process are absolutely immune). Similarly,

“[t]he decision whether to call or not to call a given witness clearly falls

within the scope of the immunity.” Beck, 685 N.W.2d at 644 n.3; see

Imbler, 424 U.S. at 426–27, 96 S. Ct. at 993 (stating absolute immunity

insulates prosecutors from liability for calling witnesses who falsely

testify). Likewise, the prosecutors’ evaluation of the evidence is immune

from legal challenge. See Buckley, 509 U.S. at 273–75, 274 n.5, 113 S. Ct.

at 2615–17, 2616 n.5 (holding that prosecutor would be entitled to only

qualified immunity for fabrication of evidence during the investigative

phase prior to the development of probable cause and stating prosecutor’s

evaluation of evidence in trial is protected by absolute immunity).

      The sole instance of alleged conduct falling outside the judicial

process immunity is Venckus’s allegation the Johnson County Attorney’s
                                    16

Office filed an ethics complaint against Venckus’s attorney for conduct in

a different case solely to bully Venckus’s attorney and distract him from

the defense of the case.   The filing of an ethics complaint against an

attorney is not “intimately associated with the judicial phase of the

criminal process.” Beck, 685 N.W.2d at 645. For example, in Beck we

held a prosecutor was not entitled to absolute immunity for writing letters

to the police department and the mayor regarding a case. Id. at 644–45.

The prosecutor in Beck was performing an “administrative function” and

not acting in his capacity as an advocate within the judicial process and

thus was not entitled to absolute immunity. Id. Similarly, although the

nature of the ethics complaint is not in the record, the filing of the

complaint was not within the judicial phase of the criminal process.

Claims related to this allegation are not barred by the judicial process

immunity.

                                    C.

      In sum, the district court erred in part in denying the prosecutor

defendants’ motion to dismiss. The judicial process immunity applies to

both common law and state constitutional claims. The allegations in the

petition against the prosecutor defendants were sufficiently specific to

apply the judicial process immunity. The immunity bars all claims in the

petition against the individual prosecutors and the county except for any

claim relating to the ethics complaint filed against Venckus’s attorney

because that conduct was administrative in nature and not intimately

associated with the judicial phase of the criminal process.

                                    IV.

      The police defendants also claim the district court erred in denying

their motion to dismiss. The police defendants contend they are absolutely

immune from suit. They also contend all claims against them are barred
                                    17

by the relevant statute of limitations. Finally, they claim Venckus’s state

constitutional   claims    were    disallowed    because     an   adequate

nonconstitutional remedy existed under the IMTCA.          We address each

contention in turn.

                                    A.

      Like the prosecutor defendants, the police defendants contend the

judicial process immunity bars all claims asserted against them.         The

district court denied the police defendants’ motion to dismiss on two

grounds. With respect to the state constitutional claims, the district court

appeared to hold that the judicial process immunity was not available and

the police defendants could only assert the qualified-immunity defense set

forth in Baldwin. With respect to the common law claims for defamation,

malicious prosecution, and abuse of process, the district court held the

claims were not sufficiently developed.     The court directed the police

defendants to raise their judicial-process-immunity defense again when

the facts were more fully known.     For the reasons set forth below, we

conclude the district court erred in part in denying the police defendants’

motion to dismiss.

      Absolute immunity extends to police officer functions falling within

the scope of the judicial process immunity, e.g., testifying as an ordinary

witness. Cf. Minor, 819 N.W.2d at 397 (stating a social worker functioning

as an ordinary witness is entitled to absolute immunity). As discussed

above, this is true whether the claims arise under common law or under

the state constitution. The district court erred in holding otherwise.

      However, we cannot conclude the district court erred in denying the

police defendants’ motion to dismiss based on the judicial process

immunity.    Unlike the claims against the prosecutor defendants, the

claims against the police defendants are not well defined.          This is
                                        18

evidenced by the fact the parties spend much of their appellate briefing

arguing about the factual bases for the claims against the police

defendants. Moreover, the legal bases for the constitutional claims are not

at all developed. As the police defendants noted in their motion to dismiss,

“it is unclear from Venckus’s petition how Rich allegedly violated his right

to equal protection or right to a fair trial and due process.”      At oral

argument, Venckus’s counsel could not articulate the legal bases for some

of the state constitutional claims. While the failure to present a coherent,

cognizable cause of action might be cause to seek a more specific

statement or an independent ground to dismiss Venckus’s claim, those

issues are not raised on appeal. See Iowa R. Civ. P. 1.421(1)(f) (allowing

for preanswer motion to dismiss for “[f]ailure to state a claim upon which

any relief may be granted”); id. r. 1.433 (“A party may move for a more

specific statement of any matter not pleaded with sufficient definiteness to

enable the party to plead to it . . . .”).

      Ultimately, “[a] motion to dismiss a petition should only be granted

if there is no state of facts conceivable under which a plaintiff might show

a right of recovery.” Kingsway Cathedral v. Iowa Dep’t of Transp., 711

N.W.2d 6, 7 (Iowa 2006). Here, the factual and legal bases for the claims

against the police defendants are so vague as to be indeterminate—the

immunity may or may not apply depending on the factual and legal bases

for the claims.     We will not piece through the petition and advance

arguments the parties have not made. “Judges are not like pigs, hunting

for [meritorious] truffles buried in [the record].” United States v. Dunkel,

927 F.2d 955, 956 (7th Cir. 1991) (per curiam). On the record presented,

we believe an appropriate application of the functional analysis prohibits

us from making a broad decision regarding the application of the judicial

process immunity to the claims against the police defendants.
                                      19

      For this reason, we affirm the district court’s denial of the motion to

dismiss with respect to the police defendants’ argument regarding the

judicial process immunity.

                                      B.

      The police defendants contend Venckus’s claims are time-barred by

the IMTCA, Iowa Code chapter 670 (2018).           Iowa Code section 670.5

provides,

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

The district court appears to have denied the police defendants’ limitations

defense on the ground that further development of the record is necessary

to meaningfully apply the limitations period. For the reasons expressed

below, we conclude the district court erred in part.

      Although frequently referred to as a statute of limitations, section
670.5 is a statute of creation. We explained this distinction in the seminal

case of Montgomery v. Polk County:

      Chapter [670 2] created a new right of action—one that was not
      available at common law nor available elsewhere by statutory
      authority, and therefore, while cases interpreting other
      limitation statutes are helpful, they do not control here. Truly
      chapter [670], and particularly the section which we are
      interpreting here, section [670.5], might be called a statute of
      creation, rather than a statute of limitation. The statute
      creates a new liability and provides for methods of enforcing
      the same, and by its terms fixes the time within which action
      for recovery may be commenced. It being a statute of creation,
      the commencement of the action within the time the statute fixes


      2The  IMTCA was moved from Iowa Code chapter 613A to Iowa Code chapter 670
by the Code editor in 1993.
                                       20
         is an indispensable condition of the liability and of the action
         permitted. The time element is an inherent element of the
         right so created, and the limitation of the remedy is likewise a
         limitation of the right.

278 N.W.2d 911, 914–15 (Iowa 1979) (en banc) (quoting Sprung ex rel.

Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970)).               With that

understanding, we held the time to file the action commenced upon the
date of injury and not the date of accrual. See id. at 916–17.

         Since Montgomery was decided in 1979, we have repeatedly held the

IMTCA bars any claim not filed within the requisite time period as

measured from the date of injury rather than date of accrual. See Rucker

v. Humboldt Cmty. Sch. Dist., 737 N.W.2d 292, 294 (Iowa 2007) (“[The

IMTCA’s statute of limitations] requires a plaintiff to file suit within two

years from the date of injury.”); Callahan v. State, 464 N.W.2d 268, 270

(Iowa 1990) (en banc) (holding the limitations period under the Iowa Tort

Claims Act commences from the date of accrual in contrast with the

IMTCA, which commences on the date of injury without regard to when

the claim accrues); Uchtorff v. Dahlin, 363 N.W.2d 264, 266 (Iowa 1985)

(en banc) (refusing to overrule Montgomery because the time period for

commencing an action is governed by statute and the statute provides the

date of injury is the relevant date); Orr v. City of Knoxville, 346 N.W.2d 507,

510 (Iowa 1984) (en banc) (adhering to rejection of the discovery rule);

Farnum ex rel. Farnum v. G.D. Searle & Co., 339 N.W.2d 392, 396 (Iowa

1983) (en banc) (“The trial court in the present case predicted that, upon

reconsideration, a majority of this court would now vote to overrule

Montgomery and adopt the view of the dissenters in that case.               This

prediction is incorrect. The court adheres to the holding in Montgomery

. . . .”).
                                     21

      Most recently, in Doe v. New London Community School District, we

again held the limitations period in section 670.5 commences on the date

of injury. 848 N.W.2d 347, 353–54 (Iowa 2014). We explained, “[T]he

IMTCA contains no term like ‘accrues’ to give the statute ‘elasticity’ for the

court to consider ‘when a cause of action ‘accrues.’ ” Id. at 352 (quoting

Montgomery, 278 N.W.2d at 914).           We further noted the legislature

amended the statute post-Montgomery and retained the date of injury as

the relevant date and there was thus no reason to reconsider Montgomery:

            In sum, on several occasions, we have discussed the
      pre–2007 version of section 670.5 and said it did not
      incorporate a common law discovery rule. We reached this
      conclusion based upon the absence of language like “accrue”
      or “accrual” in the IMTCA to suggest that something other
      than the date of injury might be the starting point for the
      statute of limitations. Especially given the further fact that
      section 670.5 has now been legislatively rewritten, we see no
      reason to disturb our longstanding precedent in this area.

Id. at 353–54 (citations omitted). One of the practical consequences of

Montgomery, as reaffirmed in Doe, is that an action can be barred before

the accrual date if the action was not filed within two years of the date of

injury. See Farnum, 339 N.W.2d at 394, 396 (holding an action was barred

by the limitations period where the time period to commence the action

had passed prior to the accrual date).

      Venckus does not contest the timeliness of his common law claims

is governed by section 670.5, but he does dispute whether his state

constitutional claims are governed by section 670.5. With respect to his

constitutional claims, Venckus contends Iowa Code section 614.1(2)

applies. That section provides for a two-year statute of limitations. Iowa

Code § 614.1(2). However, that two-year limitations period commences on

the date of accrual rather than injury and is subject to the discovery rule.

See id. § 614.1. We disagree with Venckus’s contention.
                                       22

      Claims arising under the state constitution are subject to the

IMTCA. Iowa Code section 670.2(1) provides a “municipality is subject to

liability for its torts and those of its officers and employees.” Iowa Code

section 670.1(4) defines a “tort” as “every civil wrong,” including the “denial

or impairment of any right under any constitutional provision.” Section

670.4(2) provides the statutory remedies shall be exclusive. Our cases

recognize the exclusivity of the IMTCA. See, e.g., Rucker, 737 N.W.2d at

293 (“Iowa Code chapter 670 is the exclusive remedy for torts against

municipalities and their employees.”). Thus, the limitations period set

forth in section 670.5 applies here.

      Venckus contends we should ignore the text of the statute because

application of the limitations period set forth in section 670.5 creates

inconsistency in the law regarding the time to file constitutional claims

against the state and its municipalities.     Venckus notes constitutional

claims against the state must be asserted within two years of the date the

claim accrues, see Iowa Code § 669.13(1), whereas, under section 670.5,

a claim must be filed within two years of the date of injury.

      We are nonplussed regarding the distinction between the two

limitations periods. We have long recognized and upheld the distinction

between the two limitations periods. The legislature has placed greater

limitations on actions against municipalities compared to actions against

the state because municipalities “operate under greater fiscal constraints

than the state does” and municipalities have special problems with respect

to formulating and implementing budgets. Farnum, 339 N.W.2d at 397.

More than thirty-six years have passed since Farnum, and the legislature

has continued to distinguish between claims against the state and

municipalities. Venckus’s purported inconsistency is actually a legislative
                                     23

policy decision of long standing.      We see no reason to disturb the

legislature’s decision.

      With that background, we apply the IMTCA to the claims presented.

We first consider whether the IMTCA bars Venckus’s claim for defamation.

“To establish a prima facie case in a[] defamat[ion] action, a plaintiff must

show the defendant (1) published a statement that was (2) defamatory (3)

of and concerning the plaintiff.” Bierman v. Weier, 826 N.W.2d 436, 464

(Iowa 2013) (second alteration in original) (quoting Taggart v. Drake Univ.,

549 N.W.2d 796, 802 (Iowa 1996)). The date of injury for a defamation

claim is the date on which “the defendants performed their last allegedly

. . . defamatory act.” Crouse v. Iowa Orthopaedic Ctr., No. 03-1626, 2005

WL 1224577, at *4 (Iowa Ct. App. May 25, 2005). The only statement

attributable to the police defendants is the statement made in conjunction

with Venckus’s arrest. The petition was filed more than four years after

that statement.      We thus conclude section 670.5 bars Venckus’s

defamation claim.

      With respect to the remainder of Venckus’s claims, we agree with

the district court that the record is not adequate to evaluate the limitations

defense. “A defendant may raise the statute of limitations by a motion to

dismiss if it is obvious from the uncontroverted facts contained in the

petition that the applicable statute of limitations bars the plaintiff’s claim

for relief.” Turner v. Iowa State Bank & Tr. Co. of Fairfield, 743 N.W.2d 1,

5 (Iowa 2007). Where the nature of the claim or the pertinent factual

allegations are unclear, further development of the record may be

necessary. See id. With the exception of the defamation claim discussed

above, the same difficulties precluding resolution of the police defendants’

absolute-immunity argument preclude resolution of their limitations

defense—namely, the factual and legal bases for the claims are
                                     24

underdeveloped. We thus conclude the district court did not err in denying

the motion to dismiss with respect to the remainder of the claims.

                                      C.

      The police defendants argue Venckus’s state constitutional claims

are not cognizable because the IMTCA allows for adequate remedies.

Specifically the police defendants contend the IMTCA allows for jury trial,

compensatory damages, and punitive damages.              The district court

concluded the IMTCA did not preempt Venckus’s state constitutional

claims.

      We conclude the district court did not err in denying the police

defendants’ motion. The IMTCA “does not expand any existing cause of

action or create any new cause of action against a municipality.” Iowa

Code § 670.4(3). Instead, the Act allows people to assert claims against

municipalities, their officers, and their employees that otherwise would

have been barred by the doctrine of sovereign immunity. See Thomas v.

Gavin, 838 N.W.2d 518, 521 (Iowa 2013) (explaining the IMTCA abolished

sovereign immunity). The substance of any legal claim asserted under the

IMTCA must arise from some source—common law, statute, or

constitution—independent of the IMTCA. The mere existence of the IMTCA

itself does not provide any remedy that would preclude the recognition of

a state constitutional claim. While there might be common law causes of

action or statutory causes of action that would provide a remedy sufficient

to warrant disallowance of the state constitutional claims, those

arguments are not advanced here. Further, as noted above, the record

with respect to Venckus’s claims against the police defendants is not

sufficiently developed to justify dismissal at this point.

      For these reasons, the district court did not err in denying the police

defendants’ motion to dismiss on this ground.
                                     25

                                     D.

      Finally, the police defendants argue a claim for malicious

prosecution will not lie against the police defendants because (1) there was

probable cause to charge Venckus and (2) the prosecutors had exclusive

control of the case. The police defendants did not directly present the

issue to the district court, and the district court did not directly rule on

the issue. It is not preserved for appellate review. See Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided by

the district court before we will decide them on appeal.”). Given that the

issue was not directly presented to or decided by the district court,

prudence dictates further development of the record. We need not address

the issue further.

                                     E.

      In sum, we conclude the district court erred in part in denying the

police defendants’ motion to dismiss.         The district court erred in

concluding Baldwin displaced the judicial process immunity. The district

court erred in denying the police defendants’ motion to dismiss Venckus’s

defamation claim.    The district court did not err in denying the police

defendants’ motion to dismiss on the remaining grounds.

                                     V.

      The district court erred in part in denying the defendants’ respective

motions to dismiss. We remand this matter for further proceedings not

inconsistent with this opinion.    We express no view on the merits or

demerits of the claims, immunities, defenses, or other issues to be litigated

after remand and upon development of the record.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      All justices concur except Appel, J., who dissents.
                                    26

                                   #18–1280, Venckus v. City of Iowa City

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

      I. Introduction.

      After being acquitted by a jury of a rape charge, Joshua Venckus

alleges that police and prosecutors recklessly ignored evidence proving he

was innocent, improperly engaged in expert shopping after a state

criminologist provided them with an unfavorable opinion, filed an ethics

complaint against Venckus’s attorney over an unrelated matter that state

authorities ultimately dismissed, threatened one of Venckus’s alibi

witnesses if he did not change his testimony, and offered the actual rapist

a lenient plea deal in order to obtain testimony against Venckus. Venckus

claims the defendants’ actions and omissions amounted to numerous

violations of his rights under the Iowa Constitution. He seeks to vindicate

these constitutional rights in an Iowa courtroom.

      The various defendants filed a motion to dismiss the complaint,

alleging a number of grounds including the claim that they were absolutely

immune from the claims brought by Venckus. The district court granted

the motion. On reconsideration, the district court denied in entirety the

defendants’ motions to dismiss. The defendants appealed.

      The question before us is whether Venckus is entitled to his day in

court or whether the doors of the courthouse are closed to his claims. For

the reasons expressed below, I conclude that absolute immunity should

not bar his claims. As a result, I dissent from division III of the majority

opinion.

      II. Factual and Procedural Background.

      A. Factual Background. The petition filed by Venckus alleged the

following facts. Because we are reviewing a motion to dismiss, we accept
                                    27

the facts as true. Albrecht v. Gen. Motors Corp., 648 N.W.2d 87, 89 (Iowa

2002).

      In February 2013, Venckus was visiting Chicago. While he was in

Chicago, his roommates in Iowa City had a party. A woman at the party

became intoxicated and slept on the couch. Other partygoers made her

comfortable and covered her with a blanket retrieved from Venckus’s

bedroom.

      A man named Ryan Markley was one of the attendees at the party.

After the party, Markley broke into the residence and sexually assaulted

the woman. The victim was able to escape and sought help from a person

in the alley by the back door of the residence.

      The person assisting the victim saw one person at the back door of

the residence as the woman escaped. The police were called. Police found

Markley’s wallet outside a window well of the residence, Markley’s

handprint on the north window used to enter the residence, and Markley’s

boot imprint on a chair inside the window where entry was gained to the

basement of the residence.

      Police interviewed the victim, Venckus’s roommates, and Venckus

himself. All explained that Venckus was in Chicago at the time of the

crime. No one placed Venckus at the house during the party.

      Officer Rich was principally responsible for the investigation. Police

initially focused on Markley as the perpetrator. The results of DNA testing

returned male profiles for two persons, Markley and an unknown male.

The profile of the unknown male consisted of one sperm found in the

victim’s cervix.   The police obtained a DNA sample from Venckus and

found his DNA matched the sperm.

      Prior to his arrest, Venckus tried to prove his alibi. He gave police

his bank card and cell phone, and offered to provide contact information
                                      28

for people who could attest that he was in Chicago.        The defendants

pressed forward despite overwhelming evidence that Venckus was in

Chicago at the time of the assault.

      In January 2014, eleven months after the sexual assault, police

charged both Venckus and Markley for the sexual assault. Prior to the

filing of criminal charges, Venckus did not know Markley. Venckus pled

an alibi defense. Johnson County prosecutors Anne Lahey, Naeda Elliott,

and Dana Christiansen were involved in the prosecution.

      Officer Rich interviewed Michael Concannon, one of the plaintiff’s

alibi witnesses. In the course of a recorded interview, Rich threatened him

with prosecution if he did not change his testimony to implicate Venckus.

Venckus’s petition alleged that the act would constitute tampering with a

witness.

      Beginning on August 20, 2015, and continuing up until trial,

Venckus’s attorney created a Google Drive online file. Venckus’s defense

attorney placed into the Google Drive all of the evidence that Venckus was

relying upon to show that Venckus was not in Iowa at the time of the crime

and that the DNA evidence relied upon was not reliable.

      The Google Drive was shared with the defendants upon its creation.

Venckus’s attorney would periodically update the file and notify the

defendants that it had been updated. The Google Drive was updated and

maintained up until the time of trial in September 2016. Venckus alleged

that the defendants either failed to review the information provided on the

Google Drive or recklessly and with malice ignored the information.

Venckus alleged, “Despite the overwhelming evidence that Plaintiff could

not have been the perpetrator and the clear evidence that Ryan Lee

Markley was the sole perpetrator, the Defendants continued their reckless

crusade to convict an innocent man of this awful crime.”
                                     29

      Venckus’s attorney also shared expert witness reports on the single

sperm found in the victim’s cervix that matched Venckus’s DNA.         The

reports were provided to establish that the DNA evidence of one sperm

found in the cervix represented evidence of a transfer from the blanket

covering the victim and could not represent the sole evidence of DNA left

by a rapist.

      Defendants were told by DCI criminologist Michael Halverson, the

DNA technical leader at the Iowa Department of Criminal Investigation

(DCI), that it was possible that dry sperm, if rehydrated, could transfer

from the blanket. The defendants then withdrew Halverson as an expert

witness and pressured DCI criminologist Tara Scott, who was supervised

by Halverson, to offer an opinion that a transfer was not possible. Venckus

alleged the defendants’ “expert shopping” was done because Venckus’s

lawyer had provided “a reasonable explanation for why only one sperm

could be found in the body of the victim when the donor was 240 miles

away.”

      During the prosecution, Venckus alleges that defendants’ pursuit of

him “was so reckless that they even agreed to offer a more lenient plea to

the actual rapist, Ryan Lee Markley” in return for testimony against

Venckus.       But at trial, Markely was not called as a witness because,

according to Venckus, “Markley did not have any evidence that Plaintiff

had been involved in this terrible assault.”

      During the pendency of the prosecution of Venckus, the Johnson

County Attorneys’ Office filed an ethics complaint against Venckus’s

criminal defense attorney dealing with events in an unrelated case that

was three months old. Venckus alleged the ethics complaint was filed “in

order to distract his attorney from preparing for trial or to force the

withdrawal of said attorney.”       The ethics complaint was eventually
                                      30

dismissed by the Iowa Supreme Court Attorney Disciplinary Board in July

2017 upon a finding of no convincing proof of ethical misconduct.

      According to Venckus, the defendants “knew that their effort to

convict Plaintiff would likely fail but pressed forward because they knew

they had made a mistake in charging the Plaintiff and they did not want

to make such an admission.”

      After a criminal trial in September 2016, a jury acquitted Venckus.

Venckus alleged that as a result of the above, he incurred substantial

attorney’s fees, suffered significant emotional distress, was expelled from

college, lost a career, and endures continuous harm to his reputation.

      B. Procedural History.       Venckus brought suit in March 2018

against Officer Rich and Iowa City (city defendants) and against Johnson

County. He filed an amended petition in April 2018, adding prosecutors

Lahey, Elliott, and Christiansen (together with Johnson County, county

defendants).

      Venckus asserted Godfrey claims against all defendants for

violations of his constitutional rights. See Godfrey v. State, 898 N.W.2d

844, 847 (Iowa 2017).      The claimed violations involve (1) search and

seizure, Iowa Const. art. I, § 8; (2) due process and a fair trial, id. art. I,

§ 9; (3) equal protection, id. art. I, § 6; and (4) liberty and freedom of

movement and association, id. art. I, § 1. Venckus also asserted that all

defendants committed abuse of process.          As to the city defendants,

Venckus additionally alleged defamation and malicious prosecution. The

city defendants and the county defendants moved to dismiss the petition.

      In their motion to dismiss, the city defendants raised a number of

defenses.   As to all claims, city defendants sought dismissal based on

(1) absolute prosecutorial or witness immunity and (2) statute of

limitations. As to the Godfrey claims, city defendants also asserted failure
                                     31

to state a claim because the Iowa Municipal Tort Claims Act (IMTCA)

provides an adequate remedy.       See Iowa Code ch. 670.       They further

contended that the Godfrey claims against Iowa City should be dismissed

because there is no direct cause of action against municipal entities under

the Iowa Constitution.

      County defendants filed a more limited motion to dismiss. They

sought dismissal on the basis of the defense of absolute prosecutorial

immunity. The county defendants did not argue that the IMTCA provides

an adequate remedy.

      In June, the district court largely granted the motions to dismiss.

The district court dismissed all the claims against the county defendants

based on absolute prosecutorial immunity. On the Godfrey claims against

the city defendants, the district court stated that the punitive damages

available in the IMTCA, see Iowa Code § 670.12, rendered the Godfrey

claims “unnecessary and duplicative.” The district court also dismissed

the claims for defamation and abuse of process against the city defendants

as time-barred under Iowa Code section 670.5. The district court did not

dismiss the malicious prosecution claim against the city defendants but

expressed uncertainty as to whether Venckus would be able to prove the

claim. Still, the court limited city defendants’ exposure to the malicious

prosecution claim. The court held Officer Rich was entitled to qualified

immunity in his capacity as a complaining witness and police officer, and

absolute immunity for his role in testifying at trial or preparing for trial.

These immunities, the court held, also applied to Iowa City.

      Venckus asked the district court to reconsider.              Venckus

supplemented his reconsideration request after we decided Baldwin v. City

of Estherville (Baldwin II), 915 N.W.2d 259, 281 (Iowa 2018).
                                      32

      The district court reversed itself and denied the motions to dismiss.

According to the district court, Officer Rich and the prosecutors were

entitled to qualified immunity under Baldwin II.         Further, in light of

Baldwin II, the district court held “the IMTCA does not pre-empt the

constitutional claims provided for in Godfrey.” The district court also held

that the determination of whether Johnson County and Iowa City were

entitled to immunity for abuse of process should be made after discovery.

Likewise, the defamation claim against city defendants was reinstated to

allow Venckus the opportunity to discover facts concerning defamatory

actions that were not time-barred. And the malicious prosecution claim

against city defendants was also reinstated until after discovery.

      Defendants applied for interlocutory appeal.          We granted the

applications.

      III. Standard of Review.

      “[W]e review a district court’s ruling on a motion to dismiss for

correction of errors at law.” Turner v. Iowa State Bank & Tr. Co. of Fairfield,

743 N.W.2d 1, 2–3 (Iowa 2007). We may grant a motion to dismiss for

“[f]ailure to state a claim upon which any relief may be granted.” Iowa R.

Civ. P. 1.421(1)(f).

      “In determining whether to grant the motion to dismiss, a court

views the well-pled facts of the petition in the light most favorable to the

plaintiff, resolving any doubts in the plaintiff’s favor.” Turner, 743 N.W.2d

at 3. “The purpose of the motion is to test the legal sufficiency of the

petition.” Id.

      IV. Immunities and the Iowa Constitution.

      Although there is no need to repeat what I have already said in

Baldwin II, we need to be clear-eyed about what is at stake in this case.

As was noted by Chief Justice John Marshall at the founding of our
                                      33

republic, “[I]t is a general and indisputable rule, that where there is a legal

right, there is also a legal remedy by suit or action at law, whenever that

right is invaded.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)

(quoting 3 William Blackstone, Commentaries on the Laws of England 23

(1765–1769) [hereinafter Blackstone]).

      Make no mistake, the right-without-a-remedy issue is the front and

center issue in this case. The stakes are high. On the one hand, we are

dealing with the awesome prosecutorial power of the state. On the other

hand, we are dealing with fundamental rights asserted in the very first

article of the Iowa Constitution.

      In my view, we should be resistant and skeptical, maybe even

stubborn, about any assertions of immunity in cases involving a

constitutional tort.    As will be shown below, absolute prosecutorial

immunity historically was simply not available. It is a modern innovation

in the law supported by a highly questionable policy rationale. And its

consequence is unnerving: It closes the courthouse door to grievances

related to profound constitutional harms.

      Further, the majority of this court in Baldwin II has already

developed a doctrine of qualified immunity for the officers and agents of

the state. I would apply the constitutional brakes in this case and bring

the development of immunities for constitutional torts to a stop.

      V. Absolute Prosecutorial Immunity from Constitutional Torts.

      A. Absolute Judicial Immunity at Common Law.                At common

law, absolute judicial immunity protected judges acting in their judicial

functions. Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1217–18

(1967); Floyd v. Barker (1607) 77 Eng. Rep. 1305, 1307; J. Randolph

Block, Stump v. Sparkman and the History of Judicial Immunity, 1980

Duke L.J. 879, 897–901 [hereinafter Block] (collecting early American
                                       34

authorities). It also extended to “jurors and grand jurors, members of

courts-martial,      private   arbitrators,   and   various    assessors   and

commissioners.” Kalina v. Fletcher, 522 U.S. 118, 132, 118 S. Ct. 502,

510 (1997) (Scalia, J., concurring).

      Absolute judicial immunity was a limited doctrine. It “extended only

to individuals who were charged with resolving disputes between other

parties or authoritatively adjudicating private rights.” Id.

      Absolute immunity of the judicial function was based on the public

interest in allowing a neutral decision-maker to exercise his function with

independence. Pierson, 386 U.S. at 554, 87 S. Ct. at 1218. The judge

must “decide all cases within his jurisdiction that are brought before him,

including controversial cases that arouse the most intense feelings in the

litigants.” Id. (emphasis added). Moreover, “[h]is errors may be corrected

on appeal.”    Id.    “[T]he doctrine of judicial immunity was developed

primarily to eliminate collateral attacks on judgments and to confine

procedures in error to the hierarchy of the king’s courts . . . .” Block, 1980

Duke L.J. at 880.

      B. No Absolute Prosecutorial Immunity at Common Law for

Common Law Torts. In evaluating the status of prosecutorial immunity

at common law, we need to recognize that the prosecutorial function at

common law in early America and also in England involved both public

and private prosecutors.       John D. Bessler, The Public Interest and the

Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 516–18

(1994); see State v. Peterson, 218 N.W. 367, 369 (Wis. 1928).

      In Iowa, public prosecutors have worked alongside private

prosecutors since before the 1857 constitutional convention.           At the

constitutional convention, Mr. Harris noted that, oftentimes, private

prosecutors were employed to initially present a case to a magistrate, after
                                     35

which they “let the matter go into court, when the State will take charge of

it. They look to the prosecuting attorney to take charge of it in the courts.”

1 The Debates of the Constitutional Convention of the State of Iowa 476 (W.

Blair     Lord     rep.,   1857),      www.statelibraryofiowa.org/services/

collections/law-library/iaconst. The framers discussed the ineptitude of

some county attorneys and debated whether district attorneys would be

preferable. Id. at 475–77. Mr. Harris noted that the people of his district

“desired only to see the law faithfully executed,” id. at 476, while Mr.

Gillaspy emphasized that incompetent public prosecutors had cost the

state enough “to build a railroad from one end of the State to the other,”

id. at 477.

        Across the country, both public and private prosecutors were

subject to suit for misconduct.     Private prosecutors could be sued for

malicious prosecution where, for instance, they caused wrongful

imprisonment or induced the seizure of property. Warfield v. Campbell,

35 Ala. 349, 350 (1859); Burnap v. Marsh, 13 Ill. 535, 538–39 (1852);

Center v. Spring, 2 Iowa 393, 401, 404 (1856); Wood v. Weir, 44 Ky. 544,

546, 550 (1845); Staley v. Turner, 21 Mo. App. 244, 251–52 (Ct. App.

1886). This court said, for example, that “[t]he prosecution of an innocent

person without using reasonable care to ascertain the facts is certainly not

justifiable.” Walker v. Camp, 63 Iowa 627, 630, 19 N.W. 802, 803 (1884).

        Public prosecutors were also subject to suit for malicious

prosecution.     In Parker v. Huntington, 68 Mass. 124, 128 (1854), the

Massachusetts Supreme Judicial Court held that a public prosecutor who

elicited and used false testimony could be liable for malicious prosecution.

Additionally, “in 1871, the Reconstruction Congress adopted § 1983 in

part to address the abusive practice in the South of prosecuting Union

officers and officials who were attempting to establish and enforce civil
                                     36

rights for newly freed slaves.”    Margaret Z. Johns, Unsupportable and

Unjustified: A Critique of Absolute Prosecutorial Immunity, 80 Fordham L.

Rev. 509, 510, 525 (2011) [hereinafter Johns, Unsupportable and

Unjustified].

      The absence of absolute prosecutorial immunity in those cases is

explained by two considerations.      First, the courts refused to privilege

finality and prosecutorial freedom over redress for the injuries to a

defendant and safeguards for public trust of the justice system. As one

court explained,

      It would be strange . . . if the attorney, by art and contrivance,
      the abuse of the confidence reposed, and prostitution of his
      profession, should procure from the Justices, from malicious
      motives to the defendant, an illegal and oppressive order by
      which injury accrues to the defendant, if the attorney could
      not be made liable for the wrong. It is contended, that this
      rule will expose attorneys to perplexing litigation, to the
      manifest injury of the profession. If it should, the law knows
      no distinction of persons; a different rule cannot, as to them,
      be recognized by this Court, from that which is applicable to
      others. Besides, this is a numerous class, powerful for good
      or evil, and holding them to a strict accountability, will have
      the effect to exalt and dignify the profession, by purging it of
      ignorant, meretricious and reckless members.

Wood, 44 Ky. at 547.
      Second, the tort of malicious prosecution incorporated elements

akin to a qualified immunity.     In general, a person could be sued for

malicious prosecution “only if he acted maliciously and without probable

cause, and the prosecution ultimately terminated in the defendant’s

favor.” Kalina, 522 U.S. at 132–33, 118 S. Ct. at 511; see Margaret Z.

Johns, Reconsidering Absolute Prosecutorial Immunity, 2005 BYU L. Rev.

53, 111 (2005) [hereinafter Johns, Reconsidering Absolute]; see also

Center, 2 Iowa at 406–07 (“To sustain this action, . . . plaintiff must show

that the prosecution originated in the malice of the prosecutor, and
                                      37

without probable cause.”). “[T]here was a kind of qualified immunity built

into the elements of the tort.” Kalina, 522 U.S. at 133, 118 S. Ct. at 511.

      C. Emergence       of   Absolute     Immunity    for   Prosecutorial

Functions.

      1. Turn-of-the-century developments. Public prosecutors remained

subject to suit in many states well into the twentieth century. In Arnold

v. Hubble, 38 S.W. 1041, 1041 (Ky. 1897), the court suggested that a

public prosecutor could be liable for malicious prosecution if acting with

malicious or corrupt motives. In Carpenter v. Sibley, 94 P. 879, 879–80

(Cal. 1908), the California Supreme Court held that a public prosecutor

and a sheriff were subject to suit for malicious prosecution for the use of

false testimony. In Buhner v. Reusse, 175 N.W. 1005, 1006 (Minn. 1920),

the Minnesota Supreme Court explained that an action for malicious

prosecution against a public prosecutor required plaintiff to prove both

malice and want of probable cause.

      In Leong Yau v. Carden, 23 Haw. 362, 368 (1916), the Hawaii court

held that public prosecutors are immune from suits based on actions

“done in good faith though with erroneous judgment, but private

individuals are entitled to the protection of the law against any conduct of

such officers which is at once reckless, malicious and damaging.” The

Leong Yau court specifically rejected the notion that public prosecutors act

in a judicial function, explaining,

      Public prosecuting officers are, properly speaking, executive
      officers. Though, like all enrolled attorneys, they are officers
      of the courts, they are not part of the courts. In discharging
      their duties executive officers are at times required to perform
      acts of a judicial nature, but even then they act no more than
      quasi-judicially.

Id. at 367.
                                     38

      Finally, in Schneider v. Shepherd, 158 N.W. 182, 184 (Mich. 1916),

the Michigan Supreme Court held that a public prosecutor’s instigation of

arrest did not even warrant the immunity of a quasi-judicial officer. The

court noted that the prosecutor prosecuted criminal charges based on

vague investigative reports, without further inquiry, that did not connect

the criminal defendant with the alleged crime. Id.

      At the turn of the twentieth century, there were also decisions

holding   prosecutors   absolutely   immune    from   suit   for   malicious

prosecution.   The first case anywhere was in Indiana.       See Griffith v.

Slinkard, 44 N.E. 1001, 1002 (Ind. 1896); see Johns, Reconsidering

Absolute, 2005 BYU L. Rev. at 114. The Griffith court held that a public

prosecutor is a judicial officer, not in the sense of a judge but insofar as

he performs judicial duties requiring exercise of judgment, and is therefore

entitled to absolute immunity. 44 N.E. at 1002.

      In Smith v. Parman, 165 P. 663, 663 (Kan. 1917), the Kansas

Supreme Court recognized that much of a public prosecutor’s work is

advocacy. However, because “the important matter of determining what

prosecutions shall be instituted is committed in a considerable degree to

his sound judgment,” the court held that “the reason for granting

immunity to judges and grand jurors applies with practically equal force

to a public prosecutor in his relations to actions to punish infractions of

the law.” Id. The court reasoned that absolute immunity would not foster

abuse of power because of “the risk of being called to account criminally

for official misconduct.” Id. at 663–64.

      In Kittler v. Kelsch, 216 N.W. 898, 898 (N.D. 1927), a public

prosecutor was sued after he made out a criminal complaint and brought

criminal charges based on false information.      The court held that the

prosecutor’s action was state action and constituted a judicial mistake to
                                      39

which absolute immunity applied. Id. at 904. This immunity, the court

said, was “for the protection of the public, and to insure the active and

independent action of the officers charged with the prosecution of crime,

for the protection of life and property.” Id. at 905. In a dissent, Justice

Burr argued that a prosecutor should be immune from “passing upon

complaints” but not from “making the complaint himself.” Id. (Burr, J.,

dissenting).

      In Watts v. Gerking, 228 P. 135, 141 (Or. 1924), a majority of the

Oregon Supreme Court sustained a demurrer of a complaint for malicious

prosecution against a public prosecutor. The majority said, “Because of

their tendency to obstruct the administration of justice, it is the policy of

the law to discourage actions for malicious prosecution.” Id. Noting that

a public prosecutor is subject to criminal sanctions, the majority further

stated, “The public policy of the state affords ample protection to the

innocent, and a prosecutor’s endeavors should not be weakened by

backfires in the nature of malicious prosecution.” Id.

      Two Justices dissented.     Justices Burnett and Rand emphasized

that a prosecutor should not be immune from civil suit when he

prosecuted a person the prosecutor knew to be innocent of the charges.

Id. at 142 (Burnett, J., dissenting); id. at 143–44 (Rand, J., dissenting).

Justice Burnett explained,

      In this government of the people, by the people, for the people,
      no officer is clothed with arbitrary, autocratic, or irresponsible
      power with which he may knowingly oppress an innocent
      person. I fully agree with the principle that any judicial officer,
      district attorney, or grand juror, while acting within the scope
      of his authority, is protected from either civil or criminal
      liability, though his actuating motive may be malicious. He
      may depend upon testimony of witnesses if he has no
      knowledge of nor reason to suspect its want of truth although
      the event may demonstrate its falsity. But when, as charged
      in the complaint herein, he knows that the charge he
      promotes is false, he has no right to seize upon some isolated
                                     40
      inconclusive circumstance and institute a prosecution upon
      it. It is the scienter that strips from him the immunity of his
      official station. A person whom the district attorney knows to
      be innocent is not one of those within his jurisdiction to
      prosecute. When he has actual knowledge of innocence he
      cannot have reasonable cause to believe guilt. Only a person
      who is an actual violator of the law or whom the district
      attorney has reasonable cause to believe is such violator is
      amenable to prosecution by that officer. All others are beyond
      the pale of his authority, and as to them when he knows they
      are guiltless he acts at his peril, for there can be no wrong
      without a remedy.

Id. at 142 (Burnett, J., dissenting). Justice Rand went further, articulating

that public policy dictates a public prosecutor should be entitled to no

more than the type of qualified immunity we found in Baldwin II, 915

N.W.2d at 260–61:

      As the defendant was a prosecuting officer, if the act had been
      done either ignorantly or rashly, for doing it, the law might
      hold him excusable. But as the act was done wickedly, with
      full knowledge of its falsity, the doing of the act, in law, was
      neither justifiable nor excusable, and the defendant ought to
      be compelled to answer for the consequences of his wrongful
      act. . . . To contend, under any proper conception of sound
      public policy, that any prosecuting officer has the privilege of
      bringing a person into court and charging him with and
      prosecuting him for a crime which he knows him to be
      innocent of, without being answerable for the damages caused
      thereby, upon the theory that the public good will be best
      subserved thereby, is a proposition too monstrous to be
      debated in a court of justice; for it must be obvious to any
      reasonable mind that this would place in the hands of an
      unscrupulous officer powers which are not consistent with
      good government nor the welfare of society.

228 P. at 144 (Rand, J., dissenting).

      2. Current status of absolute prosecutorial immunity. Jurisdictions

across our country remain divided on whether prosecutors are entitled to

absolute immunity.

      To be sure, the greater weight of modern precedent affords absolute

immunity to prosecutorial functions. See Knapper v. Connick, 681 So. 2d

944, 946 n.8 (La. 1996) (collecting authorities); George A. Weiss,
                                     41

Prosecutorial Accountability After Connick v. Thompson, 60 Drake L. Rev.

199, 231 & n.231 (2011) (same); see also Restatement (Second) of Torts

§ 656, at 414 (Am. Law Inst. 1977) (“A public prosecutor acting in his

official capacity is absolutely privileged to initiate, institute, or continue

criminal proceedings.”).

      The United States Supreme Court has held prosecutors absolutely

immune to common law torts and § 1983 actions. In Yaselli v. Goff, 275

U.S. 503, 48 S. Ct. 155 (1927) (per curiam), in a one-sentence opinion, the

Supreme Court of the United States affirmed a lower court decision holding

public prosecutors absolutely immune from a civil action for malicious

prosecution.   The Yaselli Court cited its decisions upholding absolute

immunity of judges. Id.; see Alzua v. Johnson, 231 U.S. 106, 111, 34 S. Ct.

27, 29 (1913); Bradley v. Fisher, 80 U.S. 335, 347 (1871).

      The Court’s decisions on absolute prosecutorial immunity in § 1983

actions began in 1976. See Imbler v. Pachtman, 424 U.S. 409, 431, 96

S. Ct. 984, 995 (1976).      In short, the Court has determined that a

prosecutor is entitled to absolute immunity when functioning as an

advocate and qualified immunity when functioning as an administrator or

investigator. Id. at 430–31, 96 S. Ct. at 995; see Van de Kamp v. Goldstein,

555 U.S. 335, 338–39, 129 S. Ct. 855, 858–59 (2009); Kalina, 522 U.S. at

129–31, 118 S. Ct. at 509–10 (majority opinion); Buckley v. Fitzsimmons,

509 U.S. 259, 261, 275–76, 113 S. Ct. 2606, 2609, 2617 (1993); Burns v.

Reed, 500 U.S. 478, 494–96, 111 S. Ct. 1934, 1943–44 (1991).

      In addition, the majority tells us, federal circuit courts of appeal

unanimously hold that the judicial process immunity applies to federal

constitutional claims brought pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971).

That result is not surprising.     Federal courts generally apply § 1983
                                     42

precedent to Bivens claims. See Butz v. Economou, 438 U.S. 478, 504, 98

S. Ct. 2894, 2909–10 (1978). In fact, all of the cases cited by the majority

that actually deal with absolute prosecutorial immunity in Bivens actions

rely on Imbler or its § 1983 progeny. See Humphries v. Houghton, 442 F.

App’x 626, 628–29, 629 n.5 (3d Cir. 2011) (per curiam); Rodriguez v. Lewis,

427 F. App’x 352, 353 (5th Cir. 2011) (per curiam); Pangelinan v. Wiseman,

370 F. App’x 818, 819 (9th Cir. 2010); Nogueras-Cartagena v. U.S. Dep’t of

Justice, 75 F. App’x 795, 798 (1st Cir. 2003) (per curiam); Blakely v. United

States, 276 F.3d 853, 871 (6th Cir. 2002); Benson v. Safford, 13 F. App’x

405, 407 (7th Cir. 2001); Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir.

2000) (per curiam); Lyles v. Sparks, 79 F.3d 372, 376 (4th Cir. 1996);

Thompson v. Walbran, 990 F.2d 403, 404–05 (8th Cir. 1993) (per curiam);

Daloia v. Rose, 849 F.2d 74, 75 (2d Cir. 1988) (per curiam); Tripati v. U.S.

Immigration & Naturalization Serv., 784 F.2d 345, 347 (10th Cir. 1986) (per

curiam).

      Some states have departed from the majority and limit or deny

absolute prosecutorial immunity. In Cashen v. Spann, 334 A.2d 8, 10, 12

(N.J. 1975), the New Jersey Supreme Court distinguished prosecutorial

immunity from judicial immunity and held the former was not absolute.

The Cashen court reviewed a lower state court decision finding “[n]o

rationalization could possibly shield evil acts of such magnitude” as the

subornation of perjury involved in the reviewed case. Id. at 13 (quoting

DeGroot v. Muccio, 277 A.2d 899, 907 (N.J. Super. Ct. Law Div. 1971)).

The Cashen court concluded that “there are indeed circumstances in

which a prosecutor will incur civil liability for his official conduct” and

“[t]he public interest is best served by recognizing that prosecutors enjoy

only a limited form of immunity.” Id.
                                     43

      The Cashen court did not consider the contours of prosecutorial

immunity because it found the record “d[id] not support any inference that

the prosecutor in this case acted out of personal motive, with malicious

intent, or in excess of his jurisdiction.” Id. at 14. In a subsequent case,

the New Jersey Supreme Court explained that “reasonable grounds for the

belief formed at the time and in light of all the circumstances, coupled with

good-faith belief, . . . affords a basis for qualified immunity of executive

officers for acts performed in the course of official conduct.”     Burke v.

Deiner, 479 A.2d 393, 397 (N.J. 1984) (quoting Scheuer v. Rhodes, 416

U.S. 232, 247–48, 94 S. Ct. 1683, 1692 (1974), abrogated on other grounds

by Davis v. Scherer, 468 U.S. 183, 191, 104 S. Ct. 3012, 3017 (1984)).

Cashen remains the law in New Jersey. See, e.g., Pitman v. Ottehberg, No.

10-2538, 2015 WL 179392, at *9 (D.N.J. Jan. 14, 2015) (recognizing

continuing vitality of Cashen); Newsome v. City of Newark, No. 13-CV-

06234, 2014 WL 4798783, at *4 (D.N.J. Sept. 25, 2014) (same).

      Public prosecutors acting in a prosecutorial function are also

subject to suit in Nebraska. In Koch v. Grimminger, 223 N.W.2d 833, 836

(Neb. 1974), the Nebraska Supreme Court relied on the common law

notion of quasi-judicial immunity.        The Koch court said that, in

determining whether to file a complaint, the prosecutor must ascertain the

law, apply the law to the facts, and weigh the reliability of evidence, all of

which constitute quasi-judicial and discretionary functions. Id. at 836–

37. In conclusion, the Koch court said,

            We hold that a public prosecutor, acting within the
      general scope of his official authority in making a
      determination whether to file a criminal prosecution, is
      exercising a quasi-judicial and discretionary function and that
      where he acts in good faith he is immune from suit for an
      erroneous or negligent determination. This rule would not
      protect a prosecutor who, knowing that a particular charge is
      groundless in law or in fact, nonetheless intentionally files a
                                     44
      charge and thus acts through a corrupt motive. In such a
      case he would not be acting within the scope of his authority.

Id. at 837. Koch remains the law in Nebraska. See, e.g., Anderson v.

Nebraska, No. 4:17-CV-3073, 2018 WL 4354952, at *8 (D. Neb. Sept. 12,

2018) (recognizing continued vitality of Koch); Gallion v. Woytassek, 504

N.W.2d 76, 83 (Neb. 1993) (same).

      Public prosecutors may also be sued in Hawaii.              “[A]bsolute

immunity is not a defense under Hawai’i law in an action for malicious

prosecution.”   Wong v. Cayetano, 143 P.3d 1, 18 (Haw. 2006).          “[T]he
prosecuting attorney is an officer of the executive branch of appellant, and

thus subject to liability for his tortious conduct.” Orso v. City of Honolulu,

534 P.2d 489, 493 (Haw. 1975) (footnote omitted), overruled on other

grounds by Kahale v. City of Honolulu, 90 P.3d 233, 239 (Haw. 2004).

      VI. Analysis of Absolute Prosecutorial Immunity.

      A. Overview of Rationales Offered in Support of Absolute

Prosecutorial Immunity.       As the rationale for absolute prosecutorial

immunity from constitutional torts, the majority adopts reasoning from

our prior decisions addressing absolute prosecutorial immunity in

common law torts and § 1983 actions. In our first case on prosecutorial

immunity to common law torts, this court said absolute prosecutorial

immunity

      is based upon the same considerations that underlie the
      common-law immunities of judges and grand jurors acting
      within the scope of their duties. These include concern that
      harassment by unfounded litigation would cause a deflection
      of the prosecutor’s energies from his public duties, and the
      possibility that he would shade his decisions instead of
      exercising the independence of judgment required by his
      public trust.

Blanton v. Barrick, 258 N.W.2d 306, 309–10 (Iowa 1977) (quoting Imbler,

424 U.S. at 422–23, 96 S. Ct. at 991); see Beck v. Phillips, 685 N.W.2d
                                     45

637, 642 (Iowa 2004). We have also stated that the immunity “is not for

the protection of the prosecutor personally, but for the benefit of the

public” and “[a]lthough genuinely wronged plaintiffs are left without

recourse in a civil suit for damages, the alternative would disserve the

broader public interest.” Beck, 685 N.W.2d at 643. Finally, we have noted

that prosecutors are still checked by the possibility of professional

discipline and criminal punishment. Id. at 643 n.2.

      B. Inapplicability of Policy Rationales of Absolute Immunity for

Prosecutors.

      1. Distinction between common law torts and constitutional torts. 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, 898 N.W.2d at 847.

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.

      Constitutional torts are unlike common law torts.         “The injuries

inflicted by officials acting under color of law, while no less compensable

in damages than those inflicted by private parties, are substantially

different in kind . . . .” Bivens, 403 U.S. at 409, 91 S. Ct. at 2011 (Harlan,

J., concurring in the judgment). A constitutional claim is designed “to

vindicate social policies which, by virtue of their inclusion in the

Constitution, are aimed predominantly at restraining the Government as

an instrument of popular will.” Rosalie Berger Levinson, Recognizing a

Damage Remedy to Enforce Indiana’s Bill of Rights, 40 Val. U. L. Rev. 1, 11

(2005) (quoting Bivens, 403 U.S. at 404, 91 S. Ct. at 2008).        Whereas

common law torts focus on remediation of damages and compensation,
                                     46

constitutional torts also focus on ensuring effective enforcement of

constitutional   rights.    See   Michael   Wells,   Punitive Damages for

Constitutional Torts, 56 La. L. Rev. 841, 858–62 (1996).        The harm to

society is not captured by a judgment that solely compensates a plaintiff

for his injury. See Michael Wells, Constitutional Remedies, Section 1983

and the Common Law, 68 Miss. L.J. 157, 189 (1998).

      A constitutional violation is different from an ordinary dispute
      between two private parties. . . . When a constitutional
      violation is involved, more than mere allocation of risks and
      compensation is implicated. The emphasis is not simply on
      compensating an individual who may have been harmed by
      illegal conduct, but also upon deterring unconstitutional
      conduct in the future. . . . Vindication of the social interest is
      distinct from adequate compensation goals of tort law and
      most statutory remedies . . . .

Godfrey, 898 N.W.2d at 876–77 (plurality opinion).

      Relatedly, we also emphasized in Godfrey the importance of

providing a cause of action for redress and deterrence of constitutional

violations. Id. at 864–68 (majority opinion). We firmly stated, “If these

individual rights in the very first article of the Iowa Constitution are to be

meaningful, they must be effectively enforced.”         Id. at 865.        “[T]he

judiciary,” we quoted Justice Harlan as saying, “has a particular

responsibility to assure the vindication of constitutional interests.” Id.

(quoting Bivens, 403 U.S. at 407, 91 S. Ct. at 2010). We further explained

the historical pedigree of remedies to enforce violations of constitutional

rights. Id. at 866–68.

      The majority ignores these considerations. In a conclusory fashion,

the majority flatly declares, “The same public-interest considerations that

justify the judicial process immunity apply whether the legal claims arise

under common law or the state constitution.” Of course, there was no

such absolute at the time of the adoption of the Iowa Constitution of 1857,
                                     47

but the majority declines to engage in originalist reasoning. In any event,

I strongly disagree with the notion that constitutional torts are simply

garden variety torts.

       2. Denial of remedy. Our legal tradition has traditionally ensured

that there is a remedy for the violation of rights. As Chief Justice Marshall

stated in Marbury, “[I]t is a general and indisputable rule, that where there

is a legal right, there is also a legal remedy by suit or action at law,

whenever that right is invaded.” 5 U.S. at 163 (quoting 3 Blackstone at

23).   In Bivens, Justice Harlan explained that contemporary modes of

thought at the time of the United States Constitutional Convention

reflected “modes of jurisprudential thought which appeared to link ‘rights’

and ‘remedies’ in a 1:1 correlation.” 403 U.S. at 400 n.3, 91 S. Ct. at 2007

n.3.

       Denying a remedy for unconstitutional prosecutorial misconduct is

anathema to that tradition, as it “drives a stake in the heart of a

substantive legal doctrine.”   Baldwin II, 915 N.W.2d at 284 (Appel, J.,

dissenting). Karl Llewellyn explained, “Defect of remedy is defect of right.”

Aaron Belzer, Comment, The Audacity of Ignoring Hope: How the Existing

Qualified Immunity Analysis Leads to Unremedied Rights, 90 Denv. U. L.

Rev. 647, 673 (2012) (quoting Karl N. Llewellyn, The Bramble Bush 88

(Oxford Univ. Press ed., 2008) (1930)). Justice Thomas notes the failure

to find a constitutional violation when prosecutors fabricate evidence

“leaves victims of egregious prosecutorial misconduct without a remedy.”

Michaels v. McGrath, 531 U.S. 1118, 1119, 121 S. Ct. 873, 873–74 (2001)

(Thomas, J., dissenting from denial of certiorari).

       3. Distinction between prosecutorial function and judicial function.

Prosecutors are unlike judges. They perform different functions. Judges

are part of the judicial branch.       See Marbury, 5 U.S. at 177–78.
                                       48

Prosecution is an executive power. Morrison v. Olson, 487 U.S. 654, 691,

108 S. Ct. 2597, 2619 (1988).

         Judges are expected to be neutral decision-makers. See State v.

Mootz, 808 N.W.2d 207, 217 (Iowa 2012). Prosecutors are expected to be

vigorous advocates for the state while simultaneously seeing that justice

is done. State v. Graves, 668 N.W.2d 860, 870 (Iowa 2003).

         Judicial decisions are made in public.           See Philip M. Pro,

Mis(understanding) Judging, 7 Nev. L.J. 480, 484–85 (2007). Prosecutors

exercise wide discretion behind closed doors. See Schmidt v. State, 909

N.W.2d 778, 788 (Iowa 2018). As two scholars note, prosecutors’ offices

are “black boxes” that “make[] it possible for prosecutors to do their daily

work without explaining their choices to the public.” Marc L. Miller &

Ronald F. Wright, The Black Box, 94 Iowa L. Rev. 125, 129 (2008). “They

decide whether to bring criminal charges, what charges to bring, whether

to engage in plea negotiations and, through these and other powers, they

in a very real sense determine what punishment a criminal defendant will

face.”    Bidish Sarma, Using Deterrence Theory to Promote Prosecutorial

Accountability, 21 Lewis & Clark L. Rev. 573, 579 (2017) [hereinafter

Sarma].

         Judicial decisions are subject to later judicial review. Iowa Const.

art. V, § 4; Iowa R. App. P. 6.103(1). Many prosecutorial decisions, like an

illegal decision to withhold exculpatory evidence, while technically subject

to judicial control, are difficult to uncover or, even if noticed, will not result

in a reversal or modification. Rachel E. Barkow, Organizational Guidelines

for the Prosecutor’s Office, 31 Cardozo L. Rev. 2089, 2090 (2010)

[hereinafter Barkow, Organizational Guidelines].

         Affiliating the prosecutorial function with the judicial function is a

grave error. “To regard prosecution as part of the judicial power in any
                                       49

way, shape, or form, is to nullify one of the Constitution’s central

features—its    judicial   safeguard    against   prosecutorial   overreach.”

Saikrishna B. Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521,

569 (2005). “[I]t is critical to maintain separation between judicial and

executive power because the judiciary supplies a critical check on

prosecutions.” Rachel E. Barkow, Separation of Powers and the Criminal

Law, 58 Stanford L. Rev. 989, 1003 n.63 (2006).

      As a result, I think the majority draws a false equivalency between

the judicial and prosecutorial functions. It is not enough to equate the

two by the tenuous connection that both are involved in criminal justice.

As Venckus vividly points out, “Football teams and referees may be on the

same field, but they are not on the same side.”

      4. Absence of historical support for absolute prosecutorial immunity.

When the Iowa Constitutions were adopted in 1846 and 1857, neither

public nor private prosecutors enjoyed absolute immunity from lawsuits

concerning their litigation misconduct. Indeed, at the time, “there was not

a single decision affording prosecutors any kind of immunity defense from

liability for malicious prosecution.” Johns, Reconsidering Absolute, 2005

BYU L. Rev. at 114 (second emphasis added), accord Imbler, 424 U.S. at

421, 96 S. Ct. at 990–91 (noting the first case to address prosecutorial

immunity was Griffith, 44 N.E. 1001 (1896)).

      Absolute judicial immunity at common law was a functional doctrine

that “extended only to individuals who were charged with resolving

disputes between other parties or authoritatively adjudicating private

rights.” Kalina, 522 U.S. at 132, 118 S. Ct. at 510 (Scalia, J., concurring).

Prosecutors neither “resolv[e] disputes between other parties” nor

“authoritatively adjudicat[e] private rights.” Id.
                                      50

      By contrast, prosecutors do undertake “official acts involving policy

discretion but not consisting of adjudication.” Burns, 500 U.S. at 500, 111

S. Ct. at 1947 (Scalia, J., concurring in the judgment in part and

dissenting in part).    But at common law, officials engaged in such

functions only benefited from quasi-judicial immunity, a qualified

immunity that “requir[ed] good faith” or an absence of malice. Johns,

Reconsidering Absolute, 2005 BYU L. Rev. at 120; see Burns, 500 U.S. at

500, 111 S. Ct. at 1947. As Justice Scalia explained, “I do not doubt that

prosecutorial functions, had they existed in their modern form in 1871,

would have been considered quasi-judicial . . . . But that characterization

does not support absolute immunity.” Burns, 500 U.S. at 500–01, 111

S. Ct. at 1947 (citations omitted).

      Likewise, the standard for malicious prosecution incorporated

elements which effectively provided a qualified immunity. Kalina, 522 U.S.

at 132–33, 118 S. Ct. at 511; Center, 2 Iowa at 406–07. No more was

needed or given.

      The absence of historical discussion in the majority opinion is

striking. According to the majority, this court grants absolute immunity

for only

      those governmental functions that were historically viewed as
      so important and vulnerable to interference by means of
      litigation that some form of absolute immunity from civil
      liability was needed to ensure that they are performed “with
      independence and without fear of consequences.”

Rehberg v. Paulk, 566 U.S. 356, 363, 132 S. Ct. 1497, 1503 (2012) (quoting

Pierson, 386 U.S. at 554, 87 S. Ct. at 1218). The majority opinion fails its

own test because, as discussed, the framers of the Iowa Constitution

would have known no such thing as absolute prosecutorial immunity. The
                                      51

majority does not address the absence of historical support for absolute

prosecutorial immunity.

      Just last term, a majority of this court highlighted the role of history

in determining the scope of immunity for Godfrey claims under the Iowa

Constitution.    In Baldwin II, the majority said, “We believe . . . that

qualified immunity should be shaped by the historical Iowa common law

as appreciated by our framers and the principles discussed in Restatement

(Second) of Torts section 874A.” 915 N.W.2d at 280 (majority opinion).

      I do not believe that historical circumstances should control our

interpretation of the Iowa Constitution.         But I find the historical

circumstances instructive.     The lack of historical support for absolute

prosecutorial immunity is one factor which leads me to dissent from the

majority opinion.

      5. Need for effective deterrence.      One incident of prosecutorial

misconduct is one too many.          One study found that, since 1970,

prosecutorial misconduct led to dismissal of charges, reversal of

conviction, or reduction of sentence in more than 2000 cases.            Steve

Weinburg, Harmful Error: Breaking the Rules, Ctr. for Pub. Integrity,

(updated May 19, 2014), https://publicintegrity.org/accountability/

breaking-the-rules/ [https://perma.cc/AX5L-AW7F]. As one jurist put it,

“There is an epidemic of Brady violations abroad in the land. Only judges

can put a stop to it.” United States v. Olsen, 737 F.3d 625, 626 (9th Cir.

2013) (Kozinski, J., dissenting from order denying petition for rehearing

en banc); see also John C. Jeffries, Jr., The Liability Rule for Constitutional

Torts, 99 Va. L. Rev. 207, 227 & n.68 (2013) [hereinafter Jeffries] (collecting

evidence on “widespread noncompliance” with Brady).

      Scholars have identified several causes of prosecutorial misconduct.
                                     52
      [P]rosecutorial misconduct is largely the result of three
      institutional conditions: vague ethics rules that provide
      ambiguous guidance to prosecutors; vast discretionary
      authority with little or no transparency; and inadequate
      remedies for prosecutorial misconduct, which create perverse
      incentives for prosecutors to engage in, rather than refrain
      from, prosecutorial misconduct.        These three conditions
      converge to create uncertain norms and a general lack of
      accountability for how prosecutors view and carry out their
      ethical and institutional obligations.

Peter A. Joy, The Relationship Between Prosecutorial Misconduct and

Wrongful Convictions: Shaping Remedies for a Broken System, 2006 Wis.

L. Rev. 399, 400 (2006).

      Prosecutors also face pressures to quickly identify suspects and

increase conviction rates, especially where, as in Iowa, they are elected.

See Ephraim Unell, Note, A Right Not to Be Framed: Preserving Civil

Liability of Prosecutors in the Face of Absolute Immunity, 23 Geo. J. Legal

Ethics 955, 959 (2010) [hereinafter Unell]. “Whether they are elected or

appointed, prosecutors often feel pressure to obtain convictions to

demonstrate their effectiveness, as convictions are the lodestar by which

prosecutors tend to be judged.” Barkow, Organizational Guidelines, 31

Cardozo L. Rev. at 2091.

      Without civil liability, deterrents to prosecutorial misconduct are

insufficient. As Justice White wrote for himself and two other Justices,

“[O]rdinarily, liability in damages for unconstitutional or otherwise illegal

conduct has the very desirable effect of deterring such conduct. Indeed,

this was precisely the proposition upon which § 1983 was enacted.”

Imbler, 424 U.S. at 442, 96 S. Ct. at 1000 (White, J., concurring in the

judgment). Conversely,

      [s]hielded from the feedback mechanism of civil liability,
      prosecutors are free to engage in conduct, ethical and
      otherwise, devoid of the accountability brought to bear on
      officials and counselors in other fields of the law. This creates
      an incentive for prosecutors to substitute precautionary
                                    53
      functions aimed at avoiding the violation of civil rights with
      greater emphasis on attaining convictions.

Daniel Woislaw, Absolute Immunity: Applying New Standards for

Prosecutorial Accountability, 26 C.R. L.J. 349, 350–51 (2016) [hereinafter

Woislaw].

      The majority relies on “other mechanisms that restrain official

conduct, including vigorous judicial oversight in the district court,

appellate review, postconviction-relief proceedings, attorney disciplinary

proceedings, human resource management, and elections.” Absent from
the majority’s list is another frequently cited mechanism, namely, the risk

of criminal punishment.

      The methods for deterring prosecutorial misconduct relied on by the

majority are generally weak and have proven their ineffectiveness. I begin

my analysis with the strongest control mechanism cited by the majority:

judicial oversight.

      A fair case can be made that absolute immunity makes sense for

prosecutorial functions occurring only during trial. In this setting, there

is supervision by a judge and monitoring by opposing counsel. Jeffries,

99 Va. L. Rev. at 221. Thus, certain prosecutorial misconduct, such as

inflammatory statements to the jury, improper comment on the

defendant’s silence, or introduction of hearsay evidence, can, at least in

theory, be corrected in the courtroom. Id.

      However, judicial oversight of criminal proceedings cannot control

or deter all or even most prosecutorial misconduct.        Some types of

prosecutorial misconduct, like withholding exculpatory evidence or

fabricating inculpatory evidence, are difficult to uncover and never come

to light in court proceedings. See Johns, Unsupportable and Unjustified,

80 Fordham L. Rev. at 521. They occur where “prosecutors act ex parte
                                    54

and without judicial supervision, usually without correction from opposing

counsel, and under professional and psychological circumstances that

vitiate the incentives to comply.” Jeffries, 99 Va. L. Rev. at 230. “The

judicial process will by definition be ignorant of the violation when it

occurs; and it is reasonable to suspect that most such violations never

surface.” Imbler, 424 U.S. at 443–44, 96 S. Ct. at 1001. Judge Kozinski

wrote,

             A robust and rigorously enforced Brady rule is
      imperative because all the incentives prosecutors confront
      encourage them not to discover or disclose exculpatory
      evidence. Due to the nature of a Brady violation, it’s highly
      unlikely wrongdoing will ever come to light in the first place.
      This creates a serious moral hazard for those prosecutors who
      are more interested in winning a conviction than serving
      justice. In the rare event that the suppressed evidence does
      surface, the consequences usually leave the prosecution no
      worse than had it complied with Brady from the outset. . . . If
      the violation is found to be material . . . the prosecution gets
      a do-over, making it no worse off than if it had disclosed the
      evidence in the first place.

Olsen, 737 F.3d at 630. When prosecutorial misconduct during trial is

predicated on pretrial misconduct, absolute immunity should not apply.
See, e.g., Imbler, 424 U.S. at 443–44, 96 S. Ct. at 1001; Olsen, 737 F.3d

at 630; McGhee v. Pottawattamie County, 547 F.3d 922, 932–33 (8th Cir.

2008); Zahrey v. Coffey, 221 F.3d 342, 344, 349 (2d Cir. 2000).

      Further weakening the functional rationale for applying absolute

immunity to a prosecutor’s actions at trial based on judicial oversight is

the relative strength of the adverse parties. “[T]he brunt of prosecutorial

misconduct falls disproportionately on the poor (including minorities) who

cannot afford the aggressive and independent defense which can detect or

deter misconduct.” Unell, 23 Geo. J. Legal Ethics at 957; accord Johns,

Unsupportable and Unjustifiable, 80 Fordham L. Rev. at 516.          “Public
                                    55

defenders[,] in particular, have scarce resources to allocate towards the

discovery of prosecutorial misconduct . . . .” Woislaw, 26 C.R. L.J. at 368.

      Moreover, judicial oversight of prosecutorial misconduct is negligible

or nonexistent in the ninety-seven percent of cases that do not go to trial.

Johns, Unsupportable and Unjustified, 80 Fordham L. Rev. at 517; Sarma,

21 Lewis & Clark L. Rev. at 576 n.11.

      Finally, appellate courts are focused less on holding the state

accountable for prosecutorial misconduct and more on determining

“whether violations of a defendant’s rights resulted in an unfair or

unreliable determination of his guilt or innocence.” Sarma, 21 Lewis &

Clark L. Rev. at 583. Thus, “prosecutorial wrongdoing will only result in

accountability-promoting    consequences      when       it   implicates   the

conviction’s integrity.” Id. at 584. Judge Smith of the United States Court

of Appeals for the Third Circuit explains that appellate courts are limited

in their control of prosecutorial misconduct by harmless error standards

and by a reluctance to impose sanctions and name errant prosecutors.

See D. Brooks Smith, Policing Prosecutors: What Role Can Appellate Courts

Play?, 38 Hofstra L. Rev. 835, 840–43 (2010). “[T]he distinction between

harmful and harmless [errors] is problematic because it doesn’t illustrate

how serious the misconduct was, merely that the court determined that it

wouldn’t have affected the ultimate outcome of the trial.” Innocence Project

Research Illustrates Lack of Accountability for Prosecutors Who Commit

Misconduct,       Innocence        Project       (Feb.         6,      2012),

https://www.innocenceproject.org/innocence-project-research-illustrates-

lack-of-accountability-for-prosecutors-who-commit-misconduct/          [https:

//perma.cc/BA7Z-945U]. Harmless error findings obviate the deterrence

and remediation of prosecutorial wrongs.       Johns, Unsupportable and

Unjustified, 80 Fordham L. Rev. at 517.
                                     56

      A second control mechanism identified by the majority are

disciplinary   proceedings.     As   an   empirical   matter,   numerous

commentators have found that prosecutors are rarely disciplined. One

found that, between 1970 and 2003, among 2000 convictions overturned

or reduced as a result of prosecutorial misconduct, none resulted in

criminal prosecution and only forty-four led to professional discipline.

Johns, Reconsidering Absolute, 2005 BYU L. Rev. at 60.            Another

concluded that “prosecutors are disciplined rarely, both in the abstract

and relative to private lawyers,” and with respect to provisions that

prosecutors and private attorneys have incentives to violate, “the

discrepancy between discipline of prosecutors and private attorneys is

enormous”). Fred C. Zacharias, The Professional Discipline of Prosecutors,

79 N.C. L. Rev. 721, 755 (2001) [hereinafter Zacharias]. Two reporters

identified 381 homicide convictions thrown out for Brady violations and

found that none of the prosecutors involved were publicly reprimanded,

barred from practicing law, or convicted of a crime. Ken Armstrong &

Maurice Possley, Part 1: The Verdict: Dishonor, Chi. Trib. (Jan. 11, 1999),

https://www.chicagotribune.com/investigations/chi-020103trial1-

story.html [https://perma.cc/FR84-WATQ].

      The reasons for the paucity of professional discipline against

prosecutors, commentators suggest, are manifold.       Some relate to the

nature of professional discipline rules. “Many of the rules of professional

conduct . . . are blunt instruments—altogether inapplicable, or barely

applicable, to full-time prosecutors.” Zacharias, 79 N.C. L. Rev. at 725.

      Other reasons relate to the incentives and resources of disciplinary

authorities. General prohibitions against dishonest behavior and conduct

prejudicial to the administration of justice are difficult and expensive to

prove without an accompanying direct rule violation. Id. at 736. Areas
                                        57

where prosecutors have discretion or where the law is unsettled are

oftentimes avoided by disciplinary authorities for fear they may “embroil

the disciplinary agency in litigation and aggressive claims by prosecutorial

agencies that professional discipline violates the separation of powers.” Id.

at 737. Disciplinary authorities may believe their resources are better

spent pursuing lawyers whose misconduct reflects self-interested greed.

Id. at 757.

      A third set of reasons for the lack of prosecutorial discipline relates

to the incentives and resources of participants in criminal cases.

“Prosecutors have no clients who are likely to complain.              Criminal

defendants rarely have incentives or resources to pursue complaints to the

bar. Defense lawyers hesitate to antagonize adversaries with whom they

must deal on a regular basis.” Id. at 749.

      Another control mechanism frequently cited to support absolute

prosecutorial immunity is the possibility of criminal punishment.          But

criminal proceedings are not a forum in which claims against prosecutors

are likely to be brought. As of 2011, only one prosecutor was criminally

convicted for violating constitutional protections under 18 U.S.C. § 242

even though the statutory provision has been in effect since 1866. Johns,

Unsupportable and Unjustified, 80 Fordham L. Rev. at 520. “Enforcement

of similar state laws is equally sparse.” Sarma, 21 Lewis & Clark L. Rev.

at 585.       “[O]nly one prosecutor has ever gone to jail for deliberate

constitutional violation.” Id. at 586. “[T]he bringing of criminal charges

against a prosecutor is very rare, because the intent standard is a high

bar and another prosecutor must be willing to press charges.” Unell, 23

Geo. J. Legal Ethics at 960; accord Woislaw, 26 C.R. L.J. at 367.

      Additionally,    according   to    the   majority,    “human    resource

management” renders civil liability unnecessary.           At the outset, it is
                                     58

noteworthy that such systems are not generally thought sufficient to

obviate tort liability in other fields.   Are prosecutors’ offices somehow

different? The studies suggest not. “[P]rosecutors’ offices appear far less

equipped than other large organizations, including police departments, to

manage and discipline employees.”         Joel B. Rudin, The Supreme Court

Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar:

Three Case Studies that Prove that Assumption Wrong, 80 Fordham L. Rev.

537, 543 (2011).    “[M]ost prosecutor’s offices don’t even have internal

systems for dealing with misconduct.”              Innocence Project Research

Illustrates Lack of Accountability for Prosecutors Who Commit Misconduct,

Innocence         Project       (Feb.         6,         2012),      https://

www.innocenceproject.org/innocence-project-research-illustrates-lack-of-

accountability-for-prosecutors-who-commit-misconduct/               [https://

perma.cc/ZE74-VKDS].

       Observers doubt that discipline internal to prosecutorial offices is

effective.   “[O]ther common goals and policies, like obtaining a high

conviction rate and prevailing in high-profile trials,” undercut incentives

to establish rigorous disciplining systems inside prosecutorial offices.

Sarma, 21 Lewis & Clark L. Rev. at 594. Internal office discipline, Judge

Kozinski suggests, is unlikely to prove useful: “Prosecutors need to know

that someone is watching over their shoulders—someone who doesn’t

share their values and eat lunch in the same cafeteria.” Alex Kozinski,

Criminal Law 2.0, Preface, 44 Geo. L.J. Ann. Rev. Crim. Proc. iii, xxxii

(2015). And “[c]onsidering the lack of transparency” in such systems, one

author writes, “one would do well to treat claims that these internal

mechanisms suffice with caution.” Sarma, 21 Lewis & Clark L. Rev. at

593.
                                      59

      The final control mechanism cited by the majority is elections. But

here again there is little to no control of misconduct.          First, “[p]oor

information flow between prosecutors and the public renders the political

check ineffective.” Russell M. Gold, Promoting Democracy in Prosecution,

86 Wash. L. Rev. 69, 78 (2011). Added to the low-information problem is

the fact that prosecutorial elections are historically low turnout affairs.

Sarma, 21 Lewis & Clark L. Rev. at 592. And, approximately eighty-five

percent of prosecutor incumbents run unopposed. Ronald F. Wright &

Marc L. Miller, The Worldwide Accountability Deficit for Prosecutors, 67

Wash. & Lee L. Rev. 1587, 1606 (2010). Finally, “because prosecutorial

elections involve so many issues beyond misconduct, there is no clear line

from misconduct (likely committed in the ranks by line prosecutors and

not the head of the office) to a district attorney being voted out of office.”

Sarma, 21 Lewis & Clark L. Rev. at 592.

      In summary, the alternative control mechanisms relied on by the

majority, individually and together, amount to paper tigers. As one author

explains,   “The   need    for   prosecutorial    accountability    is   widely

acknowledged. Scholars have established the fact that we do not hold

prosecutors accountable.     And, they have widely explored how specific

methods created to hold them accountable have failed to achieve that end.”

Id. at 578. To deter prosecutorial misconduct, civil liability is necessary.

      If we are going to accept the premise that potential liability
      affects behavior, as advocates of immunities so fervently do,
      we need to look at the opposite side of the coin too, namely, if
      behavior is fundamentally affected by the imposition of tort
      liability, the removal of tort liability will also similarly impact
      behavior. If it is true that police [and prosecutorial] conduct
      will be chilled by tort rules, then the granting of immunity will
      lead police [and prosecutors] to engage in more
      unconstitutional activities because they do not have to worry
      about potential liabilities. We must consider both halves of
      the deterrence walnut.
                                     60

Baldwin II, 915 N.W.2d at 289 (Appel, J., dissenting).

      6. Adverse effect on integrity of criminal justice system. Our system

of criminal justice gives prosecutors remarkable power and wide

discretion.    Rachel E. Barkow, Institutional Design and the Policing of

Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 874,

884 (2009) (characterizing prosecutors as “leviathans” with “unchecked

power”). At the same time, we expect a prosecutor’s interest to be “not

that [he] shall win a case, but that justice shall be done.” Berger v. United

States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).

      [W]hile he may strike hard blows, he is not at liberty to strike
      foul ones. It is as much his duty to refrain from improper
      methods calculated to produce a wrongful conviction as it is
      to use every legitimate means to bring about a just one.

Id.

      Ensuring that prosecutors are accountable to those expectations

improves the integrity of the criminal justice system. “[O]ne would expect

that the judicial process would be protected and indeed its integrity

enhanced by denial of immunity to prosecutors who engage in
unconstitutional conduct.” Imbler, 424 U.S. at 442, 96 S. Ct. at 1000–01.

      Conversely, failure to hold prosecutors accountable damages the

integrity of our criminal justice system.       “When publicized, cases of

prosecutorial misconduct dramatically reduce confidence in the justice

system.” Unell, 23 Geo. J. Legal Ethics at 957. “When prosecutors infringe

upon individual defendants’ rights without recourse, respect for the

system’s      integrity   corrodes—and    ethical   prosecutors   suffer   the

consequences ushered in by those who fail to abide by the rules.” Sarma,

21 Lewis & Clark L. Rev. at 577; see also H. Mitchell Caldwell, The

Prosecutor Prince: Misconduct, Accountability, and a Modest Proposal, 63

Cath. U. L. Rev. 51, 54 (2013) (“[P]rosecutorial misconduct is still unjust
                                      61

when it harms the guilty, who, regardless of their crimes, are entitled to

the full protection of the Constitution.”).

      7. Hindering development of constitutional law. Absolute immunity

stalls the development of constitutional law. By dismissing claims at the

initial pleading stage, courts do not interpret substantive constitutional

protections or apply them to factual situations.     Moreover, difficult-to-

defeat immunities tend to dissuade lawyers and putative clients from even

bringing suit upon weighing the practicalities of bringing constitutionally

based legal actions. See Alexander A. Reinert, Does Qualified Immunity

Matter?, 8 U. St. Thomas L.J. 477, 494–95 (2011). As a result, absolute

immunity “tends to freeze the law in a state of perpetual uncertainty” and

prevents the judicial opportunity to set a standard that will have positive

implications across the state. Johns, Reconsidering Absolute, 2005 BYU

L. Rev. at 130.

      In Baldwin II, the majority justified allowing qualified immunity, and

creating a gap between rights and remedies, out of a desire for “play in the

joints.” 915 N.W.2d at 278–79 (majority opinion). Limitations on damages

remedies, the majority reasoned, would still allow courts to develop the

scope of constitutional rights in certain cases, whereas closing the gap

between rights and remedies, the majority cautioned, could inhibit

development of substantive constitutional law. Id. at 278 n.6.

      Here, instead of allowing “play in the joints,” the majority simply

snaps the joint. The sensitivity to continued development of constitutional

rights in Baldwin II is absent.

      8. No applicability to Brady violations. In Brady v. Maryland, 373

U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963), the United States Supreme

Court held that “suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is
                                     62

material either to guilt or punishment, irrespective of the good faith or bad

faith of the prosecution.” But because Brady requires prosecutors to act

in the “unharmonious role” of helping the opposing side by “crediting a

version of the evidence at odds with their understanding,” it has not been

properly implemented by prosecutors. United States v. Bagley, 473 U.S.

667, 697, 105 S. Ct. 3375, 3391 (1985) (Marshall, J., dissenting) (first

quotation); Jeffries, 99 Va. L. Rev. at 227–29 (second quotation).

      Absolute immunity of Brady violations makes no sense. It thwarts,

rather than advances, the fundamental role of the judicial process—to

seek truth. Imbler, 424 U.S. at 441–45, 96 S. Ct. at 1000–02; see Funk v.

United States, 290 U.S. 371, 381, 54 S. Ct. 212, 215 (1933). Justice White

made the point well:

      It would stand this immunity rule on its head . . . to apply it
      to a suit based on a claim that the prosecutor
      unconstitutionally withheld information from the court.
      Immunity from a suit based upon a claim that the prosecutor
      suppressed or withheld evidence would discourage precisely
      the disclosure of evidence sought to be encouraged by the rule
      granting prosecutors immunity from defamation suits. Denial
      of immunity for unconstitutional withholding of evidence
      would encourage such disclosure. A prosecutor seeking to
      protect himself from liability for failure to disclose evidence
      may be induced to disclose more than is required. But, this
      will hardly injure the judicial process. Indeed, it will help it.

Imbler, 424 U.S. at 442–43, 96 S. Ct. at 1001. Further, as noted above,

the judicial process lacks sufficient mechanisms to ensure proper

oversight of such malfeasance. See id. at 443–44, 96 S. Ct. at 1001; Olsen,

737 F.3d at 630; Jeffries, 99 Va. L. Rev. at 230; Johns, Unsupportable and

Unjustified, 80 Fordham L. Rev. at 516, 521; Unell, 23 Geo. J. Legal Ethics

at 957; Woislaw, 26 C.R. L.J. at 368.

      9. Inefficient doctrine.    The prosecutorial immunity doctrine

embraced by the majority is inefficient.      This is because it generates
                                     63

needless satellite litigation over whether a prosecutor’s challenged conduct

should be entitled to absolute or qualified immunity. See Buckley, 509

U.S. at 273, 113 S. Ct. at 2615 (noting that prosecutors are not entitled to

absolute immunity for administrative and investigative functions); Beck,

685 N.W.2d at 642 (same); see also Burr v. City of Cedar Rapids, 286

N.W.2d 393, 395 (Iowa 1979).        “Not only does the litigation of such

questions consume effort, time, and money; it does so without any obvious

payoff for the functional integrity of constitutional tort law.” Jeffries, 99

Va. L. Rev. at 225.

      The questions generated by the doctrine are diverse, intricate, and

mostly beside the point. Should absolute immunity apply similarly where

prosecutors obtain a search warrant as to when they obtain an arrest

warrant? See KRL v. Moore, 384 F.3d 1105, 1114 (9th Cir. 2004). Does it

matter if prosecutors are seeking evidence of additional crimes as opposed

to evidence of crimes for which a defendant has already been indicted?

See id. at 1112. Should prosecutors be entitled to a different immunity

when they present false information to a court as compared to when they

put that information in a sworn affidavit? See Kalina, 522 U.S. at 120,

118 S. Ct. at 505 (majority opinion). How about when prosecutors employ

fabricated evidence in plea bargaining as compared to employing the

evidence during trial?

      Some of the results in the cases are examined are striking. For

instance, one court held that a prosecutor is entitled to qualified immunity

for manufacturing tainted evidence but absolute immunity for presenting

that same tainted evidence in court. Michaels v. New Jersey, 222 F.3d

118, 123 (3d Cir. 2000). But cf. McGhee, 547 F.3d at 932–33 (holding that

prosecutors are not entitled to absolute immunity for fabricating evidence

before filing criminal charges and then later presenting that evidence in
                                     64

court); Milstein v. Cooley, 257 F.3d 1004, 1011 (9th Cir. 2001) (same);

Zahrey, 221 F.3d at 344, 349 (same).

       Rather than focus judicial attention on the extent of a prosecutor’s

immunity, we should devote those resources to vindicating society’s

interest in enforcement of the constitution.      “A simplified approach—

applying qualified immunity in all cases—would serve public policy,

respect historical understanding, and simplify and streamline civil rights

litigation.” Johns, Unsupportable and Unjustified, 80 Fordham L. Rev. at

511.

       C. Issue of First Impression. The majority says, “Venckus has not

established our prior decisions should be overruled.” “To the contrary,”

the majority continues, “the judicial process immunity is of long standing

in Iowa and was recently reaffirmed in Minor [v. State, 819 N.W.2d 383,

397–99 (Iowa 2012)].”

       There is no stare decisis issue here. We have never decided whether,

and to what extent, prosecutors should enjoy absolute immunity from

constitutional torts. Venckus is, at least with respect to his constitutional

torts, not asking that we overrule precedent. Stare decisis “is a Latin term

meaning ‘to stand by things decided.’ ” State v. Miller, 841 N.W.2d 583,

586 (Iowa 2014) (quoting Stare decisis, Black’s Law Dictionary (9th ed.

2009)). If something is not decided, there is nothing by which stare decisis

calls on us to stand.

       For instance, the majority says the judicial process immunity was

recently reaffirmed in Minor. But Minor does not control this case. Minor

involved a § 1983 claim, not an Iowa constitutional claim. 819 N.W.2d at

389.

       There is another reason why stare decisis is of limited import here.

Even if one were to assume prosecutors’ absolute immunity to common
                                      65

law torts is a constraining precedent with respect to constitutional torts,

that immunity is a judge-made doctrine.         We have a “responsibility to

reconsider    court-made     rules   when     their    continued    validity   is

questionable.” Turner v. Turner, 304 N.W.2d 786, 787 (Iowa 1981). “When

a rule is of judicial origin, it is subject to judicial change.” Id.; see Bd. of

Water Works Trs. v. SAC Cty. Bd. of Supervisors, 890 N.W.2d 50, 61 (Iowa

2017) (recognizing that the principles supporting stare decisis are of lower

force when a rule is of judicial origin).

      There is one aspect of the majority’s discussion in which I agree.

The majority recognizes that continued adherence to our precedents

depends on their persuasive power. In Iowa, “[i]f precedent is to have any

value it must be based on a convincing rationale.” State v. Cline, 617

N.W.2d 277, 285 (Iowa 2000) (alteration in original) (quoting State v.

James, 393 N.W.2d 465, 472 (Iowa 1986) (Lavorato, J., dissenting)),

abrogated in part on other grounds by State v. Turner, 630 N.W.2d 601, 606

& n.2 (Iowa 2001). “The degree to which we follow United States Supreme

Court precedent, or any other precedent, depends solely upon its ability to

persuade us with the reasoning of the decision.”           State v. Ochoa, 792

N.W.2d 260, 267 (Iowa 2010).          If the common law precedents were

persuasive, analogical reasoning would suggest we follow that rationale.

      However,    as   discussed     above,   our     precedents   on   absolute

prosecutorial immunity in common law torts do not provide a convincing

rationale for absolutely immunizing prosecutors from constitutional torts.

Common law and constitutional torts are dissimilar, the prosecutorial

function is unlike the judicial function, and the other policy rationales in

the common law cases are dubious.

      There has been, unfortunately, an emerging trend in this court to

misapply the doctrine of stare decisis, usually to shore up favored policy
                                     66

arguments not based upon constitutional analysis.         See, e.g., State v.

Brown, ___ N.W.2d ___, ___ (Iowa 2019) (Appel, J., dissenting) (noting

majority’s citing of cases as precedent where issue was not contested by

parties); Westra v. Iowa Dep’t of Transp., ___ N.W.2d ___, ___ (Iowa 2019)

(Appel, J., dissenting) (noting majority’s citing of case deciding federal

constitutional law as precedent under Iowa Constitution). See generally

Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 614–15 (Iowa

2017) (Appel, J., concurring in part and dissenting in part) (noting that

stare decisis requires that the issue be actually litigated by the parties).

As I have previously noted,

            We should be particularly alert to avoid masking
      preferred policy choices in a stare decisis costume. And, an
      overburdened court may be tempted to over read precedent in
      the name of efficiency and quick results, but such an
      approach runs the risk of uncritical dispositions.

Bd. of Water Works Trs., 890 N.W.2d at 86 (Appel, J., concurring in part

and dissenting in part).

      D. Proper Scope of Prosecutorial Immunity.            In Baldwin II, a

majority of this court recently held that government officials are entitled

to a form of qualified immunity when they are sued under article I, sections
1 and 8 of the Iowa Constitution. 915 N.W.2d at 281. Specifically, the

majority said,

      [W]ith respect to a damage claim under article I, sections 1
      and 8, 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. I, of course, dissented in Baldwin II. Id. (Appel, J., dissenting). In any

event, the qualified immunity developed by a majority of the court in

Baldwin II is more than enough protection for most prosecutorial
                                            67

functions.      Affording any more protection to prosecutors severs the

connection between rights and remedies, removes a necessary deterrent,

is historically unjustified, hinders development of constitutional law,

damages the integrity of the criminal justice system, and inefficiently

creates needless satellite litigation to characterize the prosecutorial

function involved. Greater protection also has absolutely no role where

prosecutors impair the truth-seeking role of the judicial process by

withholding exculpatory evidence or fabricating inculpatory evidence.

       There is one area, however, where I believe the case for absolute

prosecutorial immunity is strongest, namely, for actions taken pursuant

to the judicial process in open court. At least the judicial supervision of

such functions, in tandem with the check provided by opposing counsel,

provides some degree of protection and renders a civil damages remedy

unnecessarily costly as compared to its benefits. Still, to the extent such

an exception is recognized, it cannot swallow the general rule that

prosecutors are not entitled to absolute immunity on matters involving

functions predicated on pretrial misconduct, such as Brady violations, or

presenting evidence at trial that was previously fabricated, because the

judicial and advocatory checks are ineffective in such circumstances.

       E. Proper Resolution of Claims Against Prosecutors. Venckus

complains about the prosecutors’ pretrial conduct. Therefore, absolute

prosecutorial immunity should not apply. 3 Accordingly, we should affirm

the district court judgment on these claims.




       3The  majority says a “government official” is entitled to absolute immunity for “any
function intimately related to the judicial phase of the criminal process.” But this case
does not call upon this court to decide the immunity of “any government official.” We are
only concerned with the immunity of prosecutors and police. Accordingly, the majority’s
overbroad statement is mere dicta.
                                    68
      VII. Even if Prosecutors Are Entitled to Absolute Immunity for
Some Functions, Such Limited Absolute Immunity Should Be Strictly
Tied to Judicial Functions and Does Not Provide a Basis for Dismissal
of Venckus’s Petition.

      A. Introduction.     In this section, I assume, for purposes of

argument, that absolute immunity is available to prosecutors in some

settings. But even if one embraces some form of absolute immunity for
prosecutors, such a doctrine does not provide the basis for dismissing the

petition in this case.

      Venckus     argues   that   the    prosecutors   acted   illegally   and

unconstitutionally in four ways.        First, he asserts that prosecutors

recklessly ignored exculpatory evidence he provided to prosecutors,

including expert reports and alibi testimony.      Second, he asserts that

prosecutors went shopping for a favorable expert after receiving an

unfavorable report on DNA transfer from their first expert, a state DNA

expert.   In the course of their shopping, Venckus asserts, prosecutors

pressured a state criminalist to offer an opinion contrary to the DNA

expert. The criminalist, Venckus notes, lacked training in DNA transfer.

Third, he asserts that prosecutors filed an ethics complaint against his

attorney on an unrelated matter that was later dismissed. Fourth, he

asserts that prosecutors offered Markley, the actual rapist, a lenient plea

deal in exchange for testimony against him.

      If there is a prosecutorial absolute immunity doctrine, the State has

the strongest argument with respect to the fourth assertion.         There is

authority for the proposition that offering a plea deal in exchange for

testimony is a function entitled to absolute immunity.         See Beck, 685

N.W.2d at 643 (stating that a prosecutor is absolutely immune for decision

to bring charges and for decision not to bring charges); Hike v. Hall, 427

N.W.2d 158, 160–61 (Iowa 1988) (holding that prosecutorial decisions to
                                       69

defer prosecution and reduce charges are entitled to absolute immunity).

Filing an ethics complaint against a defense attorney on an unrelated

matter is not entitled to absolute immunity.

      However, even if we were to embrace some form of prosecutorial

immunity, the majority errs in concluding that the functions associated

with the first and second assertions—recklessly ignoring exculpatory

evidence and expert shopping—are entitled to absolute immunity. As the

United States Supreme Court has cautioned,

      Almost any action by a prosecutor, including his or her direct
      participation in purely investigative activity, could be said to
      be in some way related to the ultimate decision whether to
      prosecute, but we have never indicated that absolute
      immunity is that expansive.

Burns, 500 U.S. at 495, 111 S. Ct. at 1944 (majority opinion). Similarly,

we have said, “We will be sparing in our recognition of absolute immunity

and will not extend it further than its justification warrants.” Beck, 685

N.W.2d at 643. A prosecutor’s investigatory and administrative functions

are not protected by absolute immunity. Id. at 642; see also Burr, 286

N.W.2d at 395.

      B. Expert Shopping and Pressuring Witnesses. In Buckley, 509
U.S. at 272, 113 S. Ct. at 2615, the United States Supreme Court

considered whether prosecutors were entitled to absolute immunity in

shopping for experts until they found one that would provide the opinion

they sought. The expert shopping related to a boot print found at the scene

of the crime. Id. at 262, 113 S. Ct. at 2610. After three studies performed

by state and municipal criminologists could not make a reliable connection

between the boot print and a pair of boots supplied by the target of the

prosecutorial investigation, prosecutors found an expert willing to testify

to a positive identification.    Id.        The expert they found was an
                                     70

anthropologist with a reputation “for her willingness to fabricate unreliable

expert testimony.” Id. At the time of the witness shopping, probable cause

had not yet been established and prosecutors were working “hand in hand”

with police. Id. at 272, 113 S. Ct. at 2615. The witness shopping, the

arrestee charged, amounted to a conspiracy to manufacture false evidence.

Id.

      No absolute immunity, the Buckley Court held, applied to the

prosecutors’ actions. Id. at 276, 113 S. Ct. at 2617. The Buckley Court

reasoned that “[w]hen a prosecutor performs the investigative functions

normally performed by a detective or police officer,” absolute immunity is

inapplicable. Id. at 273, 113 S. Ct. at 2616. The prosecutors’ mission in

expert shopping, the Buckley Court said, “was entirely investigative in

character.” Id. at 274, 113 S. Ct. at 2616.

      The Buckley Court also addressed the issue of timing vis-à-vis

probable cause. The Buckley Court explained that “[a] prosecutor neither

is, nor should consider himself to be, an advocate before he has probable

cause to have anyone arrested.” Id. But “[o]f course,” the Buckley Court

emphasized, “a determination of probable cause does not guarantee a

prosecutor absolute immunity from liability for all actions taken

afterwards.”   Id. at 274 n.5, 113 S. Ct. at 2616 n.5.      “Even after that

determination, . . . a prosecutor may engage in ‘police investigative work’

that is entitled to only qualified immunity.” Id. Further, the Buckley Court

continued, it is improper to conclude “a prosecutor’s actions in ‘obtaining,

reviewing, and evaluating’ evidence are always protected by absolute

immunity” because “some of these actions may fall on the administrative,

rather than the judicial, end of the prosecutor’s activities, and therefore be

entitled only to qualified immunity.” Id. at 276 n.7, 113 S. Ct. at 2617 n.7

(quoting Imbler, 424 U.S. at 431 n.33, 96 S. Ct. at 995 n.33).
                                     71

      Finally, the Buckley Court stressed that fabrication of evidence is

not a function entitled to absolute immunity. Id. at 272, 276, 113 S. Ct.

at 2615, 2617. No common law tradition, the Buckley Court explained,

granted absolute immunity for fabrication of evidence. Id. at 275, 113

S. Ct. at 2616–17.

      The alleged facts in Buckley are largely parallel to the facts before

us. As in Buckley, prosecutors here allegedly shopped for an expert willing

to testify favorably after receiving unfavorable reports from a state expert.

In Buckley, the prosecutors found an anthropologist with a reputation for

fabricating testimony; here, the prosecutors found a criminalist without

training in the subject matter about which she was asked to testify.

Indeed, the alleged circumstances here are arguably worse and more

attenuated from any prosecutorial function entitled to absolute immunity.

Unlike in Buckley, prosecutors here allegedly pressured the witness to

testify against Venckus. In my view, the alleged actions of the prosecution

in witness shopping and pressuring a witness to testify are not entitled to

absolute immunity protection.

      Of course, there is one difference between Buckley and this case. In

Buckley, the prosecutorial conduct occurred before probable cause was

found.   By contrast, Venckus suggests that probable cause may have

existed at one point, and even though that probable cause disappeared

shortly thereafter, the prosecutorial misconduct of which Venckus

complains occurred after probable cause had existed.

      Does the temporary existence of probable cause matter? As noted

above, the Buckley Court clarified that prosecutors can still be liable after

a probable cause finding.     This clarification was based on the same

rationale we utilize in defining immunities, namely, functional analysis.
                                    72

      But perhaps the fact that probable cause preceded prosecutors’

expert shopping, attempts to manufacture evidence, and witness pressure

is relevant as one factor to consider. Neither this court nor the Supreme

Court have addressed how to determine whether a prosecutor is engaged

in investigatory or administrative functions after a probable cause finding.

The lower federal courts have adopted two different approaches to post-

probable cause immunity where prosecutors allegedly coerce witnesses or

fabricate evidence.

      The D.C. Circuit takes a categorical approach, holding that coercing

a witness to testify falsely is an investigative function meriting qualified

immunity. Moore v. Valder, 65 F.3d 189, 194, (D.C. Cir. 1995). The Moore

court explained,

      Intimidating and coercing witnesses into changing their
      testimony is not advocatory.       It is rather a misuse of
      investigative techniques legitimately directed at exploring
      whether witness testimony is truthful and complete and
      whether the government has acquired all incriminating
      evidence. It therefore relates to a typical police function, the
      collection of information to be used in a prosecution.

Id.

      In contrast, the Ninth Circuit tries to ascertain a prosecutor’s state

of mind to determine if—when fabricating evidence, coercing witnesses,

withholding exculpatory evidence, or failing to interview exculpatory

evidence—the prosecutor was acting in an advocatory or investigative role.

Genzler v. Longanbach, 410 F.3d 630, 638–39 (9th Cir. 2005). In Genzler,

the Ninth Circuit held that a prosecutorial meeting with a potential witness

was “a process of manufacturing evidence while performing police-type

investigative work—not [prosecutors] acting as advocates by actively

preparing [the witness] for her testimony in court.” Id. at 643.
                                     73

      Under either Buckley, Moore, or Genzler, the prosecutors’ expert

shopping and pressuring of the state criminalist are not entitled to

absolute immunity.      As the Genzler court said, the prosecutors in

Venckus’s case were engaged in “a process of manufacturing evidence

while performing police-type investigative work—not [prosecutors] acting

as advocates by actively preparing [the witness] for her testimony in court.”

Id. at 643.

      C. Recklessly     Ignoring    Exculpatory     Material.     Recklessly

ignoring exculpatory material is not an evaluation of evidence in

preparation for trial or otherwise an advocatory function. See Broam v.

Bogan, 320 F.3d 1023, 1031 (9th Cir. 2003). Our “sparing” recognition of

absolute immunity and refusal to “extend it further than its justification

warrants,” Beck, 685 N.W.2d at 643, provide no basis for labeling an

investigatory omission as an advocatory function. The prosecutors’ alleged

failure is therefore not entitled to absolute immunity.

      The foregoing conclusion is supported by caselaw addressing claims

that police officers ignored exculpatory evidence. Courts have held that

knowingly and willfully ignoring exculpatory evidence is a failure of a police

officer’s investigative function exposing the officer to liability for a

constitutional tort. Wilson v. Lawrence County, 260 F.3d 946, 957 (8th Cir.

2001); Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992), abrogation

on other grounds as recognized by Pulliam v. City of Horn Lake, No. 92–

7696, 1994 WL 442316, at *1 n.5 (5th Cir. 1994) (per curiam). The Wilson

court denied qualified immunity to police officers because “[t]here is no

countervailing equally important governmental interest that would excuse

the [officers] from fulfilling their responsibility to investigate these

[exculpatory] leads when faced with an involuntary confession and no

reliable corroborating evidence.” 260 F.3d at 957.
                                     74

      VIII. Police Officer Absolute Immunity.

      A. Introduction.     With respect to the application of absolute

immunity to police officers, the majority declares, “Absolute immunity

extends to police officer functions falling within the scope of the judicial

process immunity, e.g., testimony as an ordinary witness.” “[T]his is true,”

the majority continues, “whether the claims arise under common law or

under the state constitution.” Because the majority does not decide the

issue of absolute immunity for police officers, the discussion is dicta. I am

not willing to let it go at that, however, because the majority’s suggested

approach is contrary to Iowa law, federal precedent, and common law.

      B. No Absolute Immunity Under Iowa Caselaw for Police

Officers. The majority’s statements are overbroad and flatly contrary to

Iowa caselaw. In Vander Linden v. Crews, 205 N.W.2d 686, 687 (Iowa

1977), Paul Crews was secretary of the Iowa Board of Pharmacy Examiners

and the director of Drug Law Enforcement. Crews arrested Vander Linden

without a warrant and filed a preliminary information against him. Id.

      The Vander Linden court held Crews was a public officer amenable

to a suit for malicious prosecution. Id. at 688, 691. The court also said it

would make no difference if Crews were considered a peace officer. Id. at

687. The Vander Linden court further held, “We have not . . . extended the

doctrine of judicial or governmental immunity to other offices of a

nonjudicial character, and decline to do so now.”        Id. at 689.   After

discussing the policy rationale for extending absolute immunity to law

enforcement officials articulated in Gregoire v. Biddle, 177 F.2d 579, 581

(2d Cir. 1949), the Vander Linden court said,

            We are unimpressed by the fears expressed by Judge
      Hand in Gregoire set out above. We believe it possible to
      determine whether claims for damages for malicious
      prosecution are well founded, and agree . . . that to deny a
                                     75
      person claimed to be injured by the malicious action of an
      officer not occupying a judicial position, to be “monstrous.”

205 N.W.2d at 690. The Vander Linden court also quoted at length from

a decision of the Michigan Supreme Court which itself relied on a

dissenting opinion from California. Id. at 691. In the California opinion,

the dissent wrote,

      The majority opinion states that public officers should be
      protected from “vindictive and retaliatory damage suits.” The
      reverse situation is presented here: Any employee, clerk,
      assistant, investigator, inspector or deputy is, by this holding,
      protected when he has instigated the commencement and
      prosecution of a vindictive and malicious suit. This is true
      because the allegations of plaintiff’s complaint must be taken
      as true, and he has alleged that the action was brought with
      malice and without probable cause.

White v. Towers, 235 P.2d 209, 216 (Cal. 1951) (en banc) (Carter, J.,

dissenting). The Michigan Supreme Court agreed, stating,

      With that reasoning, we agree. Extension of immunity to
      virtually any peace officer or law enforcement officer would
      result in a practical nullification of the tort of malicious
      prosecution.     We conclude that assurance of full
      compensatory justice to the damaged individual should be
      paramount, and that the interest of the individual in
      protection from Mala fide prosecutions is best assured by
      making the putative tortfeasor civilly liable for malicious
      prosecution.

Belt v. Ritter, 189 N.W.2d 221, 223 (Mich. 1971). Applying this reasoning,

the Vander Linden court concluded, “[T]he doctrine of judicial immunity

shall not be further extended to protect and shield nonjudicial officers from

civil suits where actual malice is alleged.” 205 N.W.2d at 691.

      In Moser v. Black Hawk County, 300 N.W.2d 150, 153 (Iowa 1981),

we reiterated that police officers are not entitled to absolute immunity.

Pointing to Paige v. City of Chariton, 252 N.W.2d 433, 438 (Iowa 1977), and

Sarvold v. Dodson, 237 N.W.2d 447, 448 (Iowa 1976), the Moser court

highlighted “our cases that recognize peace officers who instigate or
                                      76

procure a prosecution may be held liable for malicious prosecution, other

elements, including actual malice, being present.” 300 N.W.2d at 153.

The Moser court emphasized, “The general rule that law enforcement

officers are absolutely privileged to institute criminal proceedings and

therefore have an indefeasible immunity against an action for malicious

prosecution is not applied in this jurisdiction.” Id. at 153 n.1 (citation

omitted); see also Rogers v. Hill, 576 P.2d 328, 333 (Or. 1978) (en banc)

(holding that a police officer may be liable for “[a]n active part in continuing

an unfounded criminal proceeding”).

      Other decisions of this court are to the same effect. “Iowa courts . . .

have traditionally declined to extend judicial immunity to nonjudicial

officers where malice was alleged.”        Muzingo v. St. Luke’s Hosp., 518

N.W.2d 776, 777 (Iowa 1994). “[W]e have described other public officers

or peace officers charged with investigative duties as ‘nonjudicial officers’

to whom the protection should not extend.”              Webster Cty. Bd. of

Supervisors v. Flattery, 268 N.W.2d 869, 877 (Iowa 1978).

      The majority’s statements are contrary to that well-settled precedent

because the majority would protect “police officer functions falling within

the scope of the judicial process immunity,” which it defines in turn as

“conduct ‘intimately associated with the judicial phase of the criminal

process.’ ”   But immunizing an officer’s conduct associated with the

judicial phase of the criminal process is clearly contrary Vander Linden,

where the public officer was amenable to suit for arresting and filing an

information against Vander Linden.          205 N.W.2d at 687, 691.        The

majority’s approach cannot be squared with the rule in this jurisdiction

that law enforcement officers are not “absolutely privileged to institute

criminal proceedings.” Moser, 300 N.W.2d at 153 n.1.
                                     77

        Given the apparent contradiction with our precedent and the

absence of any indication from the majority that it is intending to overrule

that precedent, I think the majority opinion must be read as only

recognizing absolute immunity from defamation actions for a police

officer’s testimony in court. If the majority is overruling our precedent, it

should say so.

        C. No Absolute Immunity Under Federal Precedent for Police

Officers. The majority’s statements regarding the applicability of absolute

immunity to peace officers are also inconsistent with federal law. Under

federal law, police officers generally get qualified immunity. See Scheuer,

416 U.S. at 245, 94 S. Ct. at 1691; Pierson, 386 U.S. at 557, 87 S. Ct. at

1219.

        For example, police officers are not entitled to absolute immunity

under federal law when they act as complaining witnesses.          Malley v.

Briggs, 475 U.S. 335, 343, 106 S. Ct. 1092, 1097 (1986) (holding that an

officer applying for a warrant without probable cause may be entitled to

qualified immunity but is not entitled to absolute immunity); see Eugene

Scalia, Comment, Police Witness Immunity Under § 1983, 56 U. Chi. L. Rev.

1433, 1454–59 (1989) [hereinafter Scalia] (explaining that the Supreme

Court held police officers were entitled to absolute immunity when

functioning as an ordinary witness testifying at trial and were not entitled

to absolute immunity when functioning as a complaining witness).

        Where . . . the constitutional tort is the action of a police
        officer in initiating a baseless prosecution, his role as a
        “complaining witness” renders him liable to the victim under
        section 1983, just as it did at common law, and the fact that
        his testimony at a judicial proceeding may have been the
        means by which he initiated the prosecution does not permit
        him to transpose the immunity available for defamation as a
        defense to malicious prosecution.
                                      78

White v. Frank, 855 F.2d 956, 961 (2d Cir. 1988). See generally Piper M.

Willhite,   Comment,     Defamation        Law:   Privileges   from   Liability:

Distinguishing Quasi-Judicial Proceedings from Proceedings Which Are

Preliminary to Judicial Hearings, 47 Okla. L. Rev. 541, 548 n.61 (1994)

(collecting cases that do not extend absolute immunity to a witness’s

statements leading up to a judicial proceeding).

      Judge Posner elaborated on the rationale for withholding absolute

immunity from police officers:

      It is true that so far as potential exposure to suit by members
      of the public is concerned, a policeman is in much the same
      position as a judge or prosecutor yet enjoys no absolute
      immunity from civil damage actions. There are reasons for
      the difference in treatment. One, which is merely realistic, is
      that a policeman rarely has sufficient assets to be worth suing
      (of course this is also true of many assistant district
      attorneys), unless he is indemnified by his employer—in
      which event the suit is unlikely to have much impact on his
      performance of his duties. The threat of suit is less likely to
      affect the performance of his duties for another reason as well:
      he has less discretion than a judge or prosecutor. He is also
      more amenable to discipline and control by his superiors if he
      seems to be flagging. Finally, unless policemen can be sued
      for using excessive force or for false arrest, many victims of
      these excesses will be without any remedy.

Forrester v. White, 792 F.2d 647, 662 (7th Cir. 1986) (Posner, J.,

dissenting).

      D. Absolute Immunity for Police Officers Is Contrary to

Common Law.        The majority’s views on the application of absolute

immunity to police officers is also contrary to the law at the time of Iowa’s

founding. The majority would protect police officers under its expansive

“judicial process immunity.”     But, as discussed, judicial immunity at

common law was “extended only to individuals who were charged with

resolving disputes between other parties or authoritatively adjudicating

private rights.” Kalina, 522 U.S. at 132, 118 S. Ct. at 510 (Scalia, J.,
                                     79

concurring). Police officers do no such thing. Police officers are not “jury,

judge, and executioner.” Screws v. United States, 325 U.S. 91, 106, 65

S. Ct. 1031, 1038 (1945) (plurality opinion). “The common law has never

granted police officers an absolute and unqualified immunity . . . .”

Pierson, 386 U.S. at 555, 87 S. Ct. at 1218.

      Common law might have protected certain police officers from

defamation actions. Absolute immunity at common law protected—from

defamation actions—all “statements made in the course of a judicial

proceeding and relevant to the matter being tried.” Kalina, 522 U.S. at

133, 118 S. Ct. at 511; see Hoar v. Wood, 44 Mass. 193, 197 (1841). It did

not matter if the statements were false or borne of malicious intent.

Kalina, 522 U.S. at 133, 118 S. Ct. at 511; Hoar, 44 Mass. at 197. The

immunity applied to lawyers and witnesses. Kalina, 522 U.S. at 133, 118

S. Ct. at 511. The policy rationale for the immunity was that “full freedom

of speech” would be “best calculated to subserve the purposes of justice.”

Hoar, 44 Mass. at 197–98. Importantly, as noted, this immunity only

applied to defamation actions, i.e., libel and slander, and not to other types

of actions. Kalina, 522 U.S. at 133, 118 S. Ct. at 511.

      The majority notes that one example where a police officer could be

protected by absolute immunity is for “testifying as an ordinary witness.”

Such testimony at trial would be protected at common law from

defamation actions. But police officers would be liable to other suits. For

instance, police officers who initiated a criminal prosecution could be

liable to a malicious prosecution claim. White, 855 F.2d at 961; Scalia, 56

U. Chi. L. Rev. at 1453–54.

      E. Resolution of Police Officer Immunity in this Case.              The

majority does not decide whether the police officer’s actions in this case

would be entitled to absolute immunity. But there are important reasons
                                    80

discussed above to believe the dicta is off the mark. We have already

declined in a series of cases to extend absolute judicial immunity to police

officers. Muzingo, 518 N.W.2d at 777; Moser, 300 N.W.2d at 153; Webster

Cty. Bd. of Supervisors, 268 N.W.2d at 877; Vander Linden, 205 N.W.2d at

687. Further, Officer Rich acted as the complaining witness. Malley, 475

U.S. at 343, 106 S. Ct. at 1097; White, 855 F.2d at 961; Scalia, 56 U. Chi.

L. Rev. at 1453–54.

       IX. Municipal Immunity.

       As discussed in Baldwin v. City of Estherville, (Baldwin IV), ___

N.W.2d ___, ___ (Iowa 2019) (Appel, J., concurring in part and dissenting

in part), even if individual officers and agents of the government are

entitled to immunity, it should not extend to claims against a municipal

entity under respondeat superior.        The same rationale applies here.

Municipal entities were not immunized at common law.            Id. at ___.

Further, damages remedies are necessary to enforce constitutional rights,

and “the municipal entity itself is likely to be in the best position to

implement corrective measures to vindicate constitutional rights.” Id. at

___.   Indeed, municipal liability can target those “above the fray of

prosecutorial decisions” and thus altogether avoid the dubious policy

rationales asserted in favor of absolute prosecutorial immunity. Woislaw,

26 C.R. L.J. at 374.

       X. Conclusion.

       I would hold that prosecutors are not absolutely immune from a suit

for damages except to the extent they are functioning in open court and

are not acting based on misconduct occurring outside the trial setting.

Because Venckus does not claim any prosecutorial misconduct during

trial, I would affirm the district court judgment with respect to the

prosecutors.
                                     81

      Were I to apply the common law absolute prosecutorial immunity to

Venckus’ common law and constitutional torts against the prosecutors, I

would affirm in part and reverse in part. Under that standard, I do not

think the prosecutors are liable for the plea deal offered to Markley.

Otherwise, I think the district court correctly denied the motion to dismiss.

      With respect to the police officer, I would affirm the district court’s

denial of the motion to dismiss. Police officers are not entitled to absolute

immunity except, as with all witnesses, when testifying during trial.

Venckus’s claims do not relate to any testimony at trial by Officer Rich.

      I therefore dissent from division III of the majority opinion. I concur

in the result of division IV of the majority opinion.
