If states are laboratories of democracy, then state judiciaries run these labs’ clinical trials for constitutional development. Just consider what state courts have done in the field of constitutional remedies. In the span of one year, after the U.S. Supreme Court issued its decision on a related topic in Egbert v. Boule,[1] three state supreme courts came up with their individual solutions to the question of what to do when a state constitutional right was violated but there is no statute authorizing a damages remedy. In two states—Michigan and Nevada—the high courts held that a lawsuit can proceed if certain conditions are met.[2] In the third state—Iowa—the high court disagreed in Burnett v. Smith, reasoning that such a lawsuit directly under its constitution would be inconsistent with the separation of powers.[3]

At the heart of the disagreement is the question of who should decide whether to order a remedy for a violation of a state constitution. According to the Michigan and Nevada Supreme Courts, ordering remedies—including damages remedies—is inherently the job of state courts. As common law courts, they have the flexibility to fashion remedies, something federal courts cannot do.[4] According to the Iowa Supreme Court, however, letting plaintiffs bring constitutional claims without the Iowa legislature first authorizing them “undermine[s] the established allocation of responsibility between the legislative and the judicial branches of government.”[5] This holding was a significant change-of-course for the court. In 2017, in its decision Godfrey v. State, the court held exactly the opposite: government officials could be sued for damages directly under the Iowa Constitution, without legislative authorization.[6] Notably, the court’s composition changed significantly since 2017, with five out of seven justices leaving the bench. The two justices who dissented in Godfrey remained; one of those justices—Edward Mansfield—wrote for a unanimous Iowa Supreme Court.

Facts and Procedural Background

The facts of this case are straightforward. A waste management truck driver, Cory Burnett, was arrested by an officer of the Iowa Department of Transportation when he refused to cooperate in the inspection of his truck.[7] The charges against Burnett were dismissed, and he turned around and sued the officer—directly under the Iowa Constitution—for unlawfully detaining him, among other things.[8]

The district court recognized that technically Burnett could sue the officer directly under article I, section 8 of the Iowa Constitution (the state equivalent of the Fourth Amendment to the U.S. Constitution), since Godfrey, the 2017 Iowa Supreme Court decision, authorized such an action.[9] But the district court nonetheless dismissed the claim, since it determined that the actions of the officer were reasonable, given that he stopped Burnett because of the truck’s cracked windshield.[10] Burnett appealed, and the Iowa Supreme Court retained his appeal, using it as an opportunity to overrule Godfrey.[11]


The court began its analysis by discussing Godfrey, according to which all but two provisions of the Iowa Bill of Rights prohibit certain conduct by the government (e.g., unreasonable searches and seizures) and therefore are self-executing.[12] This means that “other than these two provisions, nothing in the Iowa Bill of Rights requires legislative action to ensure enforcement.”[13] That’s consistent with the traditional roles afforded to the legislature and the courts by the Iowa Constitution. And that’s consistent with the Supreme Court’s Bivens jurisprudence.[14] The deciding vote in Godfrey, Justice Cady, also wrote a concurrence, which limited the holding to cases where the legislature has not provided an adequate remedy.[15]

Three justices, among them Justice Mansfield, dissented in Godfrey. Their view became the majority in Burnett. According to Justice Mansfield in both Godfrey and Burnett, plaintiffs can only sue for damages under the constitution if the provision itself specifically authorizes a cause of action.[16] One example of such a provision is the Iowa Constitution’s takings clause, because it specifically mentions just compensation.[17] If there isn’t that authorization within the constitutional text, then the legislature must pass a law authorizing a cause of action, especially given that article 12, section 1 of the Iowa Constitution specifically says: “The general assembly shall pass all laws necessary to carry this constitution into effect.”[18] Unless such an authorization exists, a plaintiff can’t pursue a claim for damages. Justice Mansfield did acknowledge the history of plaintiffs suing for common law violations and getting a constitutional remedy that way, but he said that particular history of remedies is not a close enough analogue to the history of rights of action under the constitution.[19] Sovereign immunity, on the other hand, is a close analogue, and the requirement that courts wait for the legislature to waive that immunity before allowing suit against the government shows that they similarly need the legislature to authorize a damages remedy before they can allow such actions to proceed.[20]

The court acknowledged that the Supreme Court of Nevada, just months prior, went the other way. “With respect, we think this opinion, although well-written and well-reasoned, nonetheless takes both the judiciary and the legislature outside their proper roles.”[21] In the Nevada Supreme Court’s view, state courts are common law courts and thus can recognize remedies for violations of rights, whether those remedies are under common law or under the state constitution. In the Iowa Supreme Court’s view, there is a difference between common law and constitutional law. “The common law belongs to the courts. We set the standards for liability and the defenses.”[22] The constitutional law is not like that. “There is no clear hierarchy between the judicial branch and the legislative branch. Courts have neither the freedom and flexibility they enjoy with normal common law development nor the specific mandate that a statute provides.”[23] “[W]ithout the rich history of the common law or the clear direction of a statute,” it is better to avoid “[t]hese inevitable and unpredictable forays by each branch into the other's territory,” “violat[ing] separation of powers” in the process.[24]

With that, the court concluded that Godfrey—a six-year-old precedent—was no longer good law. And, in the court’s view, it wouldn’t be missed, since plaintiffs haven’t had time to become reliant on it; Godfrey claims are in any case duplicative of Section 1983 claims, and the cases that have so far been allowed to go forward under Godfrey eventually were determined to not have an underlying constitutional violation.[25] On the other hand, Godfrey proved difficult to execute, with questions such as attorney fees and punitive damages left yet to be determined.[26]

Chief Justice Christensen’s Concurrence

Chief Justice Christensen wrote a brief concurrence, emphasizing that just because she voted to overrule Godfrey does not mean she does not have respect for stare decisis, which matters “because it is important that courts, and lawyers and their clients, may know what the law is and order their affairs accordingly.”[27] But “Godfrey never allowed for that because it raised more questions than answers.”[28] “[N]othing about the applicability of Godfrey has been evenhanded or predictable.”[29] That’s a special justification to warrant overruling a precedent. And that’s good enough for the Chief Justice to vote to overrule Godfrey.[30]

In sum, the Iowa Supreme Court unanimously overturned its precedent recognizing a direct right of action for damages under the Iowa Constitution. In doing so, it deviated from the Michigan and Nevada Supreme Courts, the two most recent decisions preceding it. As the national conversation on government accountability increasingly turns to state laws, there will be many more opportunities for similar conversations between state courts.

[1] 596 U.S. __ (2022). Egbert v. Boule is the latest in the line of the U.S. Supreme Court cases dealing with suing federal officials in federal courts for violations of federal constitutional rights. The first such case was Bivens v. Six Unnamed Agents of the Bureau of Narcotics, 403 U.S. 388 (1971). The court in Bivens recognized a right of action directly under the Fourth Amendment. Egbert v. Boule all but overturned that ruling. This is related to but separate from the question of whether state courts can recognize remedies under state constitutions. After all, state courts have general jurisdiction and are creatures of common law. Federal courts, by comparison, have a much more limited mandate.

[2] Mack v. Williams, 522 P.3d 434 (Nev. 2022); Bauserman v. Unemployment Ins. Agency, 983 N.W.2d 855 (Mich. 2022). For more information, see Anya Bidwell, State Court Docket Watch: Mack v. Williams (June 7, 2023), available at https://fedsoc.org/commentary/publications/the-nevada-supreme-court-recognizes-a-damages-remedy-directly-under-its-state-constitution and Anya Bidwell, State Court Docket Watch: Bauserman v. Unemployment Insurance Agency (Nov. 7, 2022), available at https://fedsoc.org/commentary/publications/bauserman-v-unemployment-insurance-agency.

[3] Burnett v. Smith, 990 N.W.2d 289 (2023).

[4] See Carlson v. Green, 446 U.S. 14, 36 (1980) (Rehnquist, J., dissenting) (stating that federal courts, unlike state courts, have limited powers and must defer to Congress when it comes to recognizing a damages remedy for violations of constitutional rights).

[5] Burnett, 990 N.W.2d at 305.

[6] 898 N.W.2d 844, 870-72 (Iowa 2017).

[7] Burnett, 990 N.W. at 291.

[8] Id. at 292.

[9] Id.

[10] Id.

[11] Id. at 293 (“[We] have decided to address only” whether Godfrey should be overruled.).

[12] Id. at 295.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 296, 299.

[17] Id. at 299.

[18] Id.

[19] Id. at 300.

[20] Id. at 300-01.

[21] Id. at 306.

[22] Id. at 305.

[23] Id.

[24] Id.

[25] Id. at 303-05.

[26] Id. at 297.

[27] Id. at 307-08.

[28] Id. at 308.

[29] Id.

[30] Id.

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