Opinion: Iowa Supreme Court perpetuates a sorry history in immunity ruling
As with most things in the law, the devil is in the details with the recent decision of the Iowa Supreme Court blocking civil lawsuits for damages based upon a violation of Iowa’s constitutionally enumerated civil rights.
In Burnett v. Smith, handed down May 5, the court ruled that a person who had been subjected to false arrest cannot sue the state for damages because the Iowa Legislature has not enacted a law permitting such legal action. The court reasoned that while Article I of the Iowa Constitution protects citizens from arbitrary restraint under Section 1 and from unreasonable seizure under Section 8, no remedy has been provided within the constitution or by the Iowa Legislature.
The initial take among civil rights attorneys has been the complaint that the decision runs counter to the legal maxim that whenever there exists a right, there exists a remedy — in as much as no right can be said to exist, if there exists no remedy. The point should be well taken by all Iowans, but the details of the court’s analysis reveal something more troubling.
The court’s analysis turns upon two legal propositions. First, the high court interpreted the second sentence of Article XII, Section 1 of the Iowa Constitution as granting the Legislature exclusive right to establish law — at least with respect to constitutional rights and mandates. Second, it said that sovereign immunity demands this interpretation.
Article XII, Section 1 states in pertinent part: "The general assembly shall pass all laws necessary to carry this constitution into effect." This is not a grant of exclusive jurisdiction to the legislative branch. It commands that body legislate appropriately, but the Constitution goes on in Article V, Section 1 to provide for the judicial power, which is concurrent with the legislative power. The judicial power is not defined, and its meaning is therefore found within the history of the English and American courts. The rich history of the judiciary reveals that fashioning of remedies for identified rights has been a fundamental function of the courts since their inception. The fact that a right is identified in the Constitution does not place it outside the authority of the judiciary to adjudicate remedies for wrongs in the common law tradition.
In 2017, the Iowa Supreme Court filled a longstanding void in legislation by ruling in Godfrey v. State that enumerated constitutional liberties provide a basis for the courts to fashion remedies for their infringement. The court noted that a constitutional reference to the duty of the Legislature could not be interpreted as a derogation of the judicial power. There is nothing within the Iowa Constitution that divests the judiciary of its historic power to provide a remedy whenever a right is found to exist.
In order to overrule Godfrey, the Burnett court rescued its feeble exclusivity reasoning by turning to the ancient doctrine that the king can do no wrong — which has come to mean that the state cannot be sued without its consent — and held that the doctrine demands the court abstain from developing remedies for wrongdoing by government officials. It is not that the present conservative-learning bench lacked legal history to support its resort to sovereign immunity. Since Charles II heaped revenge upon his father’s prosecutors, sovereign immunity has been repeatedly revived through the ages. Our founding generation curtailed prosecution of individual interests against state governments through the federal courts, and the U.S. Supreme Court has endowed the national government with immunity not expressed in the U.S. Constitution. To counter the civil rights movement of the 1960s, the U.S. Supreme Court conjured a byzantine labyrinth of legal hurdles to afford personal immunity for egregious misconduct of public officials.
In 1215, Magna Carta supposedly drove a stake through the heart of this anachronistic doctrine. Clause 29 of Magna Carta, hailed worldwide as the cornerstone of Western liberty, provides that "No freeman is to be taken or imprisoned or deprived of his free property or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him except by lawful judgement of his peers or by the law of the land." Thus, the great charter established that the sovereign must obey the law — the common law, not some edict which the sovereign might decree for his own advantage. This provision was referred to as due process of law in the 14th-century statutory translation of Magna Carta from its original Latin into English, and was later incorporated by that coinage into the due process clauses of the Fifth and 14th amendments to the U. S. Constitution and Article I, Section 9 of the Iowa Constitution. This should have been more than enough authority for the courts to have dispensed with this insidious doctrine, long ago.
Sovereign immunity might have been a prudent precaution as Western civilization began its experiment with individual liberty, but eight centuries into the development of human rights, the doctrine has run its malignant course and should be extinguished. A doctrine premised upon an idea that the king can do no wrong has no place in American law. Our nation was founded upon a rejection of monarchy and royal prerogatives. The doctrine is inconsistent with the supremacy of the Constitution, due process of law, and government accountability to the people; it serves no useful purpose beyond affording a refuge for governmental miscreants who perpetrate malevolent acts against the citizenry.
It is time for a modern citizenry to finish the work begun by a liberty-inspired populace at Runnymede, England, in 1215, and forever eliminate this obnoxious ancient rule of law.
Bruce Lundy Butler is retired after practicing law in for 32 years in Des Moines. Email: LLB63Bruce@gmail.com.
This article originally appeared on Des Moines Register: Opinion: Iowa court perpetuates a sorry history in immunity ruling
