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Nixon v. State9/30/2005
f the Act. Thus, torts committed by the State before 1963, even though the injury was undiscovered, were not "claims" subject to the Act. See Iowa Code § 24A.2(5) ("However, 'claim' includes only such claims accruing on or after January 1, 1963."). Even though we eventually applied the discovery rule to the statute of limitations under the Act in 1994, this event did not bring claims that were previously excluded from the Act's coverage by virtue of the retroactivity provision back within the scope of the Act. Cf. Frideres v. Schiltz, 540 N.W.2d 261, 267 (Iowa 1995) (a new statute of limitations does not revive claims that have been barred under the statute of limitations in existence prior to the new statute). We cannot simply apply today's law as if there was no history of the definition of claim under the Act. Furthermore, the repeal of a statute does not affect rights that have accrued, including the right of the State to assert sovereign immunity as a defense to a claim. See Iowa Code § 4.1(1) (1966). Torts committed prior to 1963 are not covered under the Act and remain forever barred. They were barred at the time the immunity statute was enacted, and cannot be resurrected by means of a statute of limitations, or the repeal of a statute.
I would conclude the legislature never intended claims for torts occurring before 1963 to be subject to the Iowa Tort Claims Act. The only way to conclude otherwise is to essentially ignore the critical issue of the retroactive application of the statute, which the majority has done. By doing this, the majority also ignores our legislature's intent and has engaged in the very legislating it expressly disavows.
If the 1965 statute were enacted today, I would have no quarrel with the majority in this case. While our role to ascertain legislative intent would remain the same, our approach to the law today would clearly signal a legislative intent to include appellees' claim. Yet, the decision to include or exclude claims that predated the Iowa Tort Claims Act is one of public policy, reserved for the legislature. And that question was decided forty years ago by our legislature by a specific statute. The majority now renews the debate and decides the policy question differently than our legislature did. It does so by using new law, reflecting new policies our legislature could not, under any stretch of the imagination, have had in mind. It is not the role of a court to make a decision that appears fair in a particular case under today's standards if to do so undermines those timeless, foundational principles responsible for the institutional strength and respect for the judiciary. Courts can only define justice within the principles that define their limited role in government.
Carter, J., joins this dissent.
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