Anne Hensler Vs. City Of Davenport , 2010 Iowa Sup. LEXIS 111 ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 09–0608
Filed November 12, 2010
ANNE HENSLER,
Appellee,
vs.
CITY OF DAVENPORT,
Appellant.
Appeal from the Iowa District Court for Scott County, Gary D.
McKenrick, Judge.
A city appeals a decision holding its ordinance unconstitutional
and awarding attorney fees to the plaintiff. The plaintiff cross-appeals
the award of attorney fees. APPEAL AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED; CROSS-APPEAL REVERSED AND
REMANDED.
Thomas D. Warner, Davenport, and Christopher S. Jackson,
Davenport, for appellant.
Randall C. Wilson of ACLU of Iowa Foundation, Des Moines, and
Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for
appellee.
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WIGGINS, Justice.
The City of Davenport appeals a district court order finding its
parental responsibility ordinance unconstitutional. The city also appeals
the amount of the attorney fees awarded to the plaintiff. The plaintiff
cross-appeals the attorney fee award. On appeal, we find the
presumption of failure to exercise reasonable parental control under the
Davenport Parental Responsibility Ordinance is unconstitutional and
sever the unconstitutional portion of the ordinance from the remainder of
the ordinance. We also vacate the attorney fee award and remand the
case to the district court to reconsider its attorney fee award by
considering the level of the plaintiff’s success as one of the factors in
determining reasonable attorney fees. Accordingly, we affirm in part and
reverse in part the judgment of the district court, remand the case to the
district court to reconsider its award of attorney fees, and enter judgment
consistent with this opinion.
I. The Davenport Parental Responsibility Ordinance.
On July 21, 1999, the Davenport City Council adopted ordinance
9.56, entitled “Parental Responsibility.” The ordinance’s stated purpose
is to “preserve the peace, safety, health and welfare of the citizens of
Davenport, Iowa, and the city’s visitors and guests.” Davenport Mun.
Code § 9.56.010 (2006). The ordinance further states its findings and
remedial objectives as follows:
The city council finds that there has been an increase in the
number of criminal acts committed by juveniles. The city
council further finds that those who bring children into the
world, or those who assume a parenting role, but who fail to
effectively teach, train, guide and control them, should be
accountable to the community under the law. Those who
need assistance and training should be aided; those who
neglect their parenting duties should be encouraged to be
more diligent, through civil sanctions, if necessary. This
chapter should be construed to achieve these remedial
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objectives by addressing situations where parents or
guardians have failed or neglected to act responsibly or
reasonably in the supervision of their minor children.
Id. There is no legislative history supporting passage of the ordinance
beyond the minutes of the Davenport City Council’s meetings, which only
record the council members’ votes.
The liability portions of the ordinance provide as follows:
9.56.020 Definitions.
The following words shall have the following meanings
when used in this chapter, unless a different meaning is
clear from context or usage.
A. “Parent” means a father, mother, legal guardian or
any other person having or who has assumed the care,
control or custody in the sense that the child lives with them
and they look after that child, either by court order or on a
voluntary basis.
B. “Minor” means any person who has not attained
the age of eighteen years old.
C. “Adjudication” means that a juvenile court has
entered a finding of fact that a minor has committed a
delinquent act as defined by Iowa law.
D. “Informal adjustment” means a disposition of a
juvenile investigation or case which results in a nonjudicial
admission of guilt and nonjudicial agreement between
juvenile court services and a minor. For purposes of this
chapter a consent decree as provided for by Iowa law shall be
deemed an informal adjustment.
E. “Occurrence” means a law enforcement agency has
probable cause to believe a particular child engaged in a
delinquent act and has filed a delinquency complaint with
the court based upon such probable cause or has otherwise
taken said child into custody.
9.56.030 Parental responsibility.
The parent of a minor shall not fail to exercise
reasonable control over said minor.
9.56.040 Parental duties.
A. It is the duty of the parent of a minor child or
minor children to exercise sufficient control over a said
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minor(s) to prevent the minor(s) from committing any
unlawful act in violation of federal law, state law or city
ordinance. Any occurrence is a breach of this duty.
A second occurrence or an adjudication or the entry of
an informal adjustment agreement involving a minor related
to any unlawful act, and prior notification to the parent of
the parental responsibility ordinance including notice of
possible fines or penalties establishes a rebuttable
presumption that the parent failed to exercise reasonable
parental control of said parent’s minor(s).
B. The presumption that a parent has failed to
exercise reasonable parental control of a minor may be
rebutted by evidence that establishes that the parent:
1. Kept illegal drugs and/or weapons out of the home;
and kept legal weapons locked and inaccessible to minors.
2. Took reasonable and responsible efforts to require
their minor to observe the curfew ordinance.
3. Took reasonable and responsible actions to insure
that their minor regularly attended school sessions and
limited school absences to situations approved by the
parent.
4. Arranged adequate supervision of their minor child
by a competent adult under circumstances when the parent
was unable to personally supervise their child.
5. Took reasonable and responsible action to prevent,
deter or report their minor child’s involvement in unlawful
activity in violation of federal law, state law or city ordinance;
i.e., reported stolen property to police, turned in illegal or
dangerous weapons to the police, prevented the minor’s
association with known juvenile delinquents.
6. Sought assistance from appropriate agencies prior
to the adjudication or informal adjustment.
Id. §§ 9.56.020–.040 (emphasis added). Finally, the penalties the
ordinance imposes increase with subsequent “occurrences:”
9.56.050 Penalties.
Any person who violates this chapter shall be guilty of
a municipal infraction violation. A separate and distinct
offense shall be regarded as being committed each day on
which such person violates the provisions of this chapter.
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A. Upon the occurrence of a first offense the city will
issue the parent a warning letter which states that the
parent is in violation of the parental responsibility ordinance
together with a description of the nature of the parent’s
violation and a statement setting forth the fines and/or
consequences of future violations.
B. Upon the occurrence of a second offense the parent
will be ordered to attend and successfully complete a
recognized course of instruction on parenting skills and/or
techniques. A parent failing to successfully complete such
course may be subject to contempt of court.
C. Upon the occurrence of a third or subsequent
offense the penalty shall be a civil penalty in amount of at
least one hundred dollars but not more than seven hundred
fifty dollars and such other order, if any, that the court
deems equitable.
Id. § 9.56.050.
II. Background Facts and Proceedings.
Anne Hensler is a registered nurse living in Davenport. Anne has
three children, Holly (fifteen), Nicholas (seventeen), and Peter (nineteen).
Holly and Nicholas still live with Anne. Approximately fourteen years ago
Anne was divorced, and since that time she has raised Holly, Nicholas,
and Peter on her own with help from her mother and father. Anne’s
mother was especially helpful and was a substantial influence in the
lives of Anne’s children. Anne’s children were well behaved and good
students. Nicholas excelled in math and science, was an honor roll
student, and was a member of the math club and science club. However,
at the end of 2004 Anne’s mother suddenly became terminally ill and
died in December. Anne’s children were very close to her, and her death
shocked everyone.
Soon after the death of Anne’s mother, kids at school began calling
Nicholas “brainiac,” and in response, Nicholas began to withdraw and did
not want to go to school. Nicholas began talking less and started
hanging out with different friends who Anne did not know. His grades
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began to drop, and he stopped participating in sports, as well as the
math and science clubs. He became strong willed and difficult to control.
By this time, Nicholas was approximately 6′2″ tall and weighed
approximately 200 pounds. Due to his size, his mother could not
physically control him.
On November 30, 2007, Anne first learned Nicholas was smoking
marijuana when the Davenport police caught him smoking marijuana
with other minors in a school parking lot at 4:11 a.m. The police took
Nicholas into custody for violation of the city’s curfew ordinance and
possession of a controlled substance. The school gave Nicholas a three-
day suspension. The police referred him to the juvenile court due to this
incident. In addition, the city issued Anne a “Parental Responsibility
Ordinance Warning Letter” for her first violation of the ordinance. After
this incident, Nicholas continued to smoke marijuana, sneak around,
and cut class. The school would call Anne and tell her when Nicholas
was missing from school periods, and she resorted to going to the school
periodically to make sure he was in class. Anne also began reading
parenting books to try to figure out how to cope with Nicholas’s behavior.
On December 13 at approximately 9:51 p.m., Davenport police
officers stopped a vehicle occupied by three minors for traffic violations
and discovered two marijuana pipes and a baggie with marijuana residue
in it. Nicholas was one of the passengers of the vehicle, and the police
transported him to the station because he was being uncooperative at
the scene. The police issued Nicholas citations for possession of a
controlled substance and possession of drug paraphernalia. The police
summoned Anne to the station and issued her a municipal citation for
her second violation of the ordinance. Due to this incident, the police
again referred Nicholas to the juvenile court system. Before the juvenile
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court appointment took place, the Davenport police picked up Nicholas
again on a third charge. Nicholas ran away from home and stayed with
some of his friends after Anne attempted to strictly enforce her rules.
At the juvenile court appointment, the court ordered Nicholas to
participate in a drug rehabilitation program and placed him on
probation. Anne paid for the drug rehabilitation program. Anne also
voluntarily took a parenting class entitled “Love and Logic” because she
thought there was something she needed to learn. Upon taking the
parenting class, Anne found she did all the things that were suggested to
prevent juvenile delinquency.
Anne filed a motion to dismiss the municipal citation for her
second violation of the ordinance. However, before the hearing on the
motion to dismiss, Anne filed a civil rights petition, under 42 U.S.C.
§ 1983 (2006), against the City of Davenport for declaratory and
injunctive relief. Anne claimed the ordinance violates her right to due
process of law. Anne also claimed the enactment of the state juvenile
laws preempted the city’s power to enact the ordinance. The court
stayed Anne’s motion to dismiss until her civil rights petition was
resolved.
In its ruling on Anne’s civil rights claim, the district court
concluded Anne failed to prove any legislative enactment of the state
legislature preempted the ordinance. The court also rejected Anne’s
procedural due process challenge. The court did determine, however,
that the ordinance violated Anne’s substantive due process rights under
the United States and Iowa Constitutions. Based on this civil rights
violation, the court awarded attorney fees in favor of Anne’s attorneys for
$20,857.40.
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The city appeals these rulings. Anne cross-appeals the attorney
fee award.
III. Issues.
The city contends the district court erred in holding the ordinance
is a denial of substantive due process. Alternatively, the city claims if
the ordinance denies substantive due process, the attorney fees awarded
were excessive. In response to the city’s arguments, Anne claims the
ordinance violated her substantive due process rights. If the ordinance
does not violate her substantive due process rights, she urges alternative
grounds upon which we can affirm the district court’s decision. First,
she claims the ordinance violates her substantive due process rights by
interfering with her fundamental right to parent. Next, she claims the
juvenile laws contained in Iowa Code chapter 232 (2007) preempt the
ordinance. Finally, she claims the ordinance contains an irrational and
unfair presumption that if a minor violates the law, the court can
presume the violation was a result of the parent’s failure to exercise
reasonable parental control over the minor. In her cross-appeal, Anne
claims the attorney fee award was inadequate.
IV. Scope of Review.
We review constitutional claims de novo. Formaro v. Polk County,
773 N.W.2d 834, 838 (Iowa 2009); Ames Rental Prop. Ass’n v. City of
Ames, 736 N.W.2d 255, 258 (Iowa 2007). In doing so, we independently
evaluate the totality of the circumstances. State v. Shanahan, 712
N.W.2d 121, 131 (Iowa 2006). The district court’s findings of fact are not
binding. Id. We do, however, give deference to those findings because
the district court had the opportunity to assess the credibility of the
witnesses. Id. Moreover, “ ‘statutes are cloaked with a presumption of
constitutionality.’ ” State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005)
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(quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002)). If
the statute is capable of being construed in more than one way, one of
which is constitutional, we must adopt the constitutional construction.
Id. Our review as to whether state law preempts the ordinance is a
matter of statutory construction and is reviewable for correction of errors
at law. City of Davenport v. Seymour, 755 N.W.2d 533, 537 (Iowa 2008).
V. Substantive Due Process.
The district court found the ordinance to violate substantive due
process as being overbroad on its face and in its application. In support
of its ruling, the district court cited as authority State v. Bower, 725
N.W.2d 435, 443–44 (Iowa 2006), and City of Chicago v. Morales, 527
U.S. 41, 52, 119 S. Ct. 1849, 1857, 144 L. Ed. 2d 67, 77–78 (1999).
Although the district court cited both the Iowa and United States
Constitutions’ Due Process Clauses in its ruling, Morales was decided
under the United States Constitution. Morales, 527 U.S. at 53, 119
S. Ct. at 1857, 144 L. Ed. 2d at 78. While we decided Bower under the
state and federal constitutions, we interpreted the Iowa Constitution
claim as we would the United States Constitution claim because Bower
did not suggest a reason to interpret the two constitutions differently.
Bower, 725 N.W.2d at 441. Moreover, on appeal Anne does not cite the
Iowa Constitution in her brief on this issue. Accordingly, we will decide
this case only under the United States Constitution’s Due Process
Clause. 1
1Even if we could find Anne argued and preserved an Iowa Constitution claim on
appeal by citing a paragraph from the district court’s decision, we would still decide the
case by applying the general principles as outlined by the Supreme Court in
interpreting the United States Constitution because neither party has advanced a
standard for interpreting the due process clause under the Iowa Constitution differently
from its Federal Constitution counterpart. See State v. Bruegger, 773 N.W.2d 862, 883
(Iowa 2009) (applying the Supreme Court’s analysis to a cruel-and-unusual-
punishment challenge under the Iowa Constitution when the defendant did not argue
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We believe the district court’s reliance on Bower and Morales is
misplaced. Bower involved the interpretation of a harassment-of-a-
public-official statute. Bower, 725 N.W.2d at 439–40. There, the statute
in question criminalized conduct that willfully prevents or attempts to
prevent any public officer or employee from performing the officer’s or
employee’s duties. Id. at 441. The conduct in question involved
defendant’s speech and his close proximity to a police officer when the
officer was investigating another incident. Id. at 439–40. In Bower, we
interpreted the statute narrowly in order to prevent it from being
overbroad. Id. at 444. In doing so, we relied on the following law from
the Supreme Court:
“First, because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly.
Vague laws may trap the innocent by not providing fair
warning. Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit
standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and
discriminatory application. Third, but related, where a
vague statute ‘abut[s] upon sensitive areas of basic First
Amendment freedoms,’ it ‘operates to inhibit the exercise of
[those] freedoms.’ Uncertain meanings inevitably lead
citizens to ‘steer far wider of the unlawful zone . . . than if
the boundaries of the forbidden areas were clearly marked.’ ”
Id. at 441–42 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108–09,
92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 222, 227–28 (1972)) (alterations in
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for a different interpretive standard). We jealously guard it as our right and duty to
differ from the Supreme Court, in appropriate cases, when construing analogous
provisions in the Iowa Constitution. State v. Olsen, 293 N.W.2d 216, 219–20 (Iowa
1980). Thus, we always retain the exclusive prerogative to interpret the Iowa
Constitution more restrictively than the Supreme Court has interpreted comparable
language in the Federal Constitution. Id. at 219.
 11
original). In Bower, basic First Amendment freedoms were involved. Id.
at 443–44.
In Morales, the Supreme Court was dealing with an antiloitering
ordinance. Morales, 527 U.S. at 45–46, 119 S. Ct. at 1854, 144 L. Ed. 2d
at 74. There, the Supreme Court recognized “the overbreadth doctrine
permits the facial invalidation of laws that inhibit the exercise of First
Amendment rights if the impermissible applications of the law are
substantial when ‘judged in relation to the statute’s plainly legitimate
sweep.’ ” Id. at 52, 119 S. Ct. at 1857, 144 L. Ed. 2d at 77–78 (plurality
opinion) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct.
2908, 2918, 37 L. Ed. 2d 830, 842 (1973)). In Morales, defendants
convicted under the antiloitering law claimed the law inhibited their First
Amendment rights. Id. at 52–53, 119 S. Ct. at 1857, 144 L. Ed. 2d at 78.
In the present case, the district court relied on the overbreadth
doctrine that is applicable to laws infringing on a person’s First
Amendment rights to hold the ordinance invalid on its face. Anne does
not claim the ordinance infringes on her First Amendment rights.
Therefore, the overbreadth doctrine in Bower and Morales is not
applicable to the ordinance. 2
2The Supreme Court has recognized, however, the existence of another
overbreadth doctrine that may invalidate a law on its face when First Amendment rights
are not implicated. See United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095,
2100, 95 L. Ed. 2d 697, 707–08 (1987). Under this doctrine, “the challenger must
establish that no set of circumstances exists under which the [ordinance] would be
valid.” Id. There is a question whether Salerno’s overbreadth doctrine is still viable
when First Amendment rights are not implicated. Compare Hotel & Motel Ass’n of
Oakland v. City of Oakland, 344 F.3d 959, 971–72 (9th Cir. 2003) (abiding by Salerno’s
overbreadth doctrine), with A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305
F.3d 684, 687 (7th Cir. 2002) (discussing the continued viability of Salerno). In her
brief, Anne does not argue for another overbreadth doctrine other than the one used in
Bower and Morales applying to laws infringing on First Amendment rights. Anne also
failed to argue on appeal that the ordinance was “void for vagueness” or that it is
enforced arbitrarily and discriminatorily so as to violate the Due Process Clause of the
United States Constitution. Additionally, Anne abandoned her procedural due process
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VI. Whether the Ordinance Violates Anne’s Due Process
Rights by Interfering with Her Fundamental Right to Parent.
The Federal Constitution precludes deprivations of “life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1.
Substantive due process “prevents the government from interfering with
‘rights implicit in the concept of ordered liberty.’ ” Hernandez-Lopez, 639
N.W.2d at 237 (quoting United States v. Salerno, 481 U.S. 739, 746, 107
S. Ct. 2095, 2101, 95 L. Ed. 2d 697, 708 (1987)). There are two stages to
a substantive due process analysis. State v. Groves, 742 N.W.2d 90, 92
(Iowa 2007). The first stage requires us to determine the nature of the
individual right involved. Id.; accord Reno v. Flores, 507 U.S. 292, 302,
113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1, 16 (1993). The second stage
involves the appropriate level of scrutiny to apply. Groves, 742 N.W.2d at
93.
If government action implicates a fundamental right, we apply a
strict scrutiny analysis in which we determine if the government action
infringing the fundamental right is narrowly tailored to serve a
compelling government interest. Seering, 701 N.W.2d at 662.
Alternatively, if a fundamental right is not implicated, the statute need
only survive the rational-basis test, which requires us to consider
“whether there is ‘a reasonable fit between the government interest and
the means utilized to advance that interest.’ ” Id. (quoting Hernandez-
Lopez, 639 N.W.2d at 238); accord Flores, 507 U.S. at 305, 113 S. Ct. at
1448–49, 123 L. Ed. 2d at 18.
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argument in this appeal. Finally, she did not argue any due process claim under the
Iowa Constitution. Accordingly, we decline to address these issues. See Baker v. City of
Iowa City, 750 N.W.2d 93, 102–03 (Iowa 2008) (holding a party fails to preserve error
when that party fails to advance any argument or cite any authority in his or her brief
to support a claim).
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Anne claims the ordinance infringes on her fundamental right to
make her own parenting decisions without undue coercion or
interference from the state. The city claims the ordinance does not
infringe upon the parent-child relationship but instead simply informs
the parent that warning signs exist and the parent should seek some
advice or help.
When an alleged right is not specifically and constitutionally
enumerated as fundamental, neither this court nor the Supreme Court
has created a clear test for determining whether the claimed right is a
fundamental right. In re Det. of Cubbage, 671 N.W.2d 442, 447 (Iowa
2003). Nevertheless, only rights and liberties that are objectively
“ ‘deeply rooted in this Nation’s history and tradition’ ” and “ ‘implicit in
the concept of ordered liberty’ ” qualify as fundamental. Chavez v.
Martinez, 538 U.S. 760, 775, 123 S. Ct. 1994, 2005, 155 L. Ed. 2d 984,
999 (2003) (plurality opinion) (quoting Washington v. Glucksberg, 521
U.S. 702, 720–21, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772, 787–88
(1997)). Moreover, any asserted fundamental liberty interest must be
carefully described so that we can proceed with the correct analysis.
Glucksberg, 521 U.S. at 721, 117 S. Ct. at 2268, 138 L. Ed. 2d at 788;
accord Seering, 701 N.W.2d at 663.
One of the oldest fundamental liberty interests consistently
recognized by the Supreme Court is the interest of parents in the care,
custody, and control of their children. Troxel v. Granville, 530 U.S. 57,
65–66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56 (2000); accord
Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71
L. Ed. 2d 599, 606 (1982) (recognizing that personal choice in matters of
family life is a fundamental liberty interest); Lassiter v. Dep’t of Soc.
Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2159–60, 68 L. Ed. 2d 640,
14
649–50 (1981) (finding a parent’s right to the companionship, care,
custody, and management of his or her children is an important
interest); Parham v. J.R., 442 U.S. 584, 602–04, 99 S. Ct. 2493, 2504–05,
61 L. Ed. 2d 101, 118–19 (1979) (recognizing the concept of family as a
unit with broad parental authority over minor children); Quilloin v.
Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554–55, 54 L. Ed. 2d 511, 519
(1978) (recognizing that the relationship between parent and child is
constitutionally protected); Moore v. City of East Cleveland, 431 U.S. 494,
499, 97 S. Ct. 1932, 1935–36, 52 L. Ed. 2d 531, 537 (1977) (citing a host
of Supreme Court cases that have consistently acknowledged the state
cannot enter the private realm of family life); Wisconsin v. Yoder, 406
U.S. 205, 232–34, 92 S. Ct. 1526, 1541–42, 32 L. Ed. 2d 15, 35 (1972)
(“The history and culture of Western civilization reflect a strong tradition
of parental concern for the nurture and upbringing of their children.”);
Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212–13, 31
L. Ed. 2d 551, 558–59 (1972) (finding the right to raise one’s children as
“essential”); Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274,
1280, 20 L. Ed. 2d 195, 203–04 (1968) (stating “constitutional
interpretation has consistently recognized that the parents’ claim to
authority in their own household to direct the rearing of their children is
basic in the structure of our society”); Prince v. Massachusetts, 321 U.S.
158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944) (“It is cardinal
with us that the custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder.”); Pierce v. Soc’y of
Sisters, 268 U.S. 510, 534–35, 45 S. Ct. 571, 573, 69 L. Ed. 1070, 1078
(1925) (recognizing parents have a liberty interest in directing the
upbringing and education of their children); Meyer v. Nebraska, 262 U.S.
15
390, 399–400, 43 S. Ct. 625, 626–27, 67 L. Ed. 1042, 1045 (1923)
(finding the liberty protected by the Due Process Clause includes the
right of the individual to establish a home and bring up children).
Therefore, if the ordinance infringes on Anne’s fundamental right to
exercise care, custody, and control over her son, we must apply strict
scrutiny. Hernandez-Lopez, 639 N.W.2d at 238. Accordingly, we must
examine the contours of this fundamental right in order to determine
whether the ordinance infringes upon it.
The determination of whether the fundamental parental right to
exercise care, custody, and control over children has been infringed must
be determined on a case-by-case basis. Troxel, 530 U.S. at 95–96, 120
S. Ct. at 2076, 147 L. Ed. 2d at 75 (Kennedy, J., dissenting). Moreover,
while this fundamental right has been broadly stated, “the contours of
the right are not completely amorphous.” See, e.g., Dutkiewicz v.
Dutkiewicz, 957 A.2d 821, 832–33 (Conn. 2008) (analyzing the contours
of the fundamental parental right to exercise care, custody, and control
over a child). Every case that has implicated this fundamental right has
a commonality:
All of the cases in which the United States Supreme
Court . . . [has] concluded that the parental right to exercise
care, custody and control over children was implicated,
involved situations in which the state intervened and
substituted its decision making for that of the parents. The
result is that a parent’s decision with respect to the care,
custody and control of his or her child cannot be overridden
by the state in the absence of a showing that the parent is
unfit or that the parent’s decision will jeopardize the health
or safety of the child, or will have a potential to impose
significant social burdens.
Id. at 833 (emphasis removed). Thus, for a statute or ordinance to
infringe on this fundamental parental right, “the state must in some way
attempt to override or at least limit the decision of a parent with respect
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to the care, custody and control over his or her child.” Id. (emphasis
removed); see also S. Randall Humm, Criminalizing Poor Parenting Skills
as a Means to Contain Violence by and Against Children, 139 U. Pa. L.
Rev. 1123, 1143 (1991) (“A law that allows the state to review virtually
every aspect of the parent’s supervision over the child is inconsistent
with the . . . deference [that the Supreme Court has assigned to] parents
in matters involving child rearing.”).
In other words, the power of the state must improperly intrude into
the parent’s decision-making authority over his or her child for there to
be an infringement of this fundamental parental right, triggering strict
scrutiny. Dutkiewicz, 957 A.2d at 833; see, e.g., Troxel, 530 U.S. at 67,
120 S. Ct. at 2060–61, 147 L. Ed. 2d at 57–58 (noting the parent wanted
to limit third-party visitation, the state did not); Moore, 431 U.S. at 496–
97, 97 S. Ct. at 1934, 52 L. Ed. 2d at 535–36 (noting the parent wanted
to live with son and two grandsons in violation of housing ordinance);
Yoder, 406 U.S. at 207–08, 92 S. Ct. at 1529–30, 32 L. Ed. 2d at 20–21
(noting the parent wanted to give children an Amish education, and the
state wanted them to attend public school); Pierce, 268 U.S. at 530–31,
45 S. Ct. at 572, 69 L. Ed. at 1076 (noting the state wanted children to
attend public school); Meyer, 262 U.S. at 396–97, 430 S. Ct. at 626, 67
L. Ed. at 1044 (noting the state sought to prohibit parents from allowing
their children to learn a foreign language before the eighth grade); accord
Santi v. Santi, 633 N.W.2d 312, 318 (Iowa 2001) (noting the parent
wanted to limit third-party visitation, the state did not); Olds v. Olds, 356
N.W.2d 571, 574 (Iowa 1984) (same).
Furthermore, we have stated, “[b]oth [this court’s] precedents and
those of the Supreme Court indicate that an alleged infringement on a
familial right is unconstitutional only when an infringement has a direct
17
and substantial impact on the familial relationship.” Seering, 701
N.W.2d at 663 (emphasis added). Thus, for the ordinance to infringe
upon Anne’s fundamental parental right, it must directly and
substantially intrude into her parental decision-making authority over
her child.
However, it is important to note the fundamental parental right to
exercise care, custody, and control over children is not absolute. The
state has a legitimate interest to promote the public welfare or the well-
being of the child. City of Panora v. Simmons, 445 N.W.2d 363, 369–70
(Iowa 1989). Under the doctrine of parens patriae, the state may restrict
the parent’s control by requiring school attendance, regulating or
prohibiting the child’s labor, and in many other ways. Prince, 321 U.S. at
166, 64 S. Ct. at 442, 88 L. Ed. at 652. Consequently, when the child’s
welfare is threatened, the state can use a wide range of powers to limit
parental freedom and authority. Id. at 167, 64 S. Ct. at 442, 88 L. Ed. at
653. Therefore,
“[i]n cases in which harm to the physical or mental health of
the child or to the public safety, peace, order, or welfare is
demonstrated, these legitimate state interests may override
the parents’ qualified right to control the upbringing of their
children.”
Simmons, 445 N.W.2d at 369–70 (quoting Bykofsky v. Borough of
Middletown, 401 F. Supp. 1242, 1264 (M.D. Pa. 1975)).
Here, the city claims its interest advanced by the ordinance is to
“preserve the peace, safety, health and welfare of the citizens of
Davenport, Iowa, and the city’s visitors and guests.” Davenport Mun.
Code § 9.56.010. Clearly, the city has a strong interest in protecting the
public from juvenile delinquency. The ordinance does not dictate to
parents an overall plan for the discipline, control, or supervision of
18
minors. Simmons, 445 N.W.2d at 370. Instead, upon a first
“occurrence” it gives the parent notice of their child’s alleged
delinquency, upon a second “occurrence” it requires the parent to
successfully complete a parenting class to learn skills the parent may or
may not voluntarily implement to combat their child’s delinquency, and
finally upon a third “occurrence” the ordinance imposes sanctions on the
parent. Davenport Mun. Code § 9.56.050. While the ordinance does
attempt to inform parents about their child’s delinquency, provide skills
for combating delinquency, and ultimately imposes sanctions on parents
for their child’s continued delinquency, we cannot say the city has
improperly intervened and substituted its decision making for that of the
parent. Therefore, the ordinance does not intrude directly and
substantially into a parent’s parental decision-making authority, but
instead only minimally impinges on a parent’s fundamental right to
direct the upbringing of his or her child. Consequently, the ordinance
does not trigger strict scrutiny by infringing upon Anne’s fundamental
right to exercise care, custody, and control over her child. Accordingly,
the district court correctly determined the proper level of scrutiny to
apply in this case is the rational-basis test.
When a fundamental right is not implicated, the ordinance need
only survive the rational-basis test. Seering, 701 N.W.2d at 662. The
rational-basis test requires us to consider “whether there is ‘a reasonable
fit between the government interest and the means utilized to advance
that interest.’ ” Id. (quoting Hernandez-Lopez, 639 N.W.2d at 238);
accord Flores, 507 U.S. at 303, 305, 113 S. Ct. at 1448–49, 123 L. Ed. 2d
at 18. Under this level of scrutiny, the legislature need not employ the
best means of achieving a legitimate state interest. Sanchez v. State, 692
N.W.2d 812, 818 (Iowa 2005). As long as the means “ ‘rationally
19
advances a reasonable and identifiable governmental objective, we must
disregard the existence of other methods . . . that we, as individuals,
perhaps would have preferred.’ ” Id. (quoting Schweiker v. Wilson, 450
U.S. 221, 235, 101 S. Ct. 1074, 1083, 67 L. Ed. 2d 186, 198 (1981)).
Moreover, while the rational-basis level of scrutiny is deferential to
legislative judgment, it is not a toothless standard of review. Racing
Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 9 (Iowa 2004); accord
Mathews v. de Castro, 429 U.S. 181, 185, 97 S. Ct. 431, 434, 50
L. Ed. 2d 389, 394 (1976).
Under the rational-basis test, we first must determine whether the
ordinance serves a legitimate governmental interest. Racing Ass’n of
Cent. Iowa, 675 N.W.2d at 7. Moreover, “the claimed state interest must
be ‘realistically conceivable.’ ” Id. (emphasis in original) (quoting Miller v.
Boone County Hosp., 394 N.W.2d 776, 779 (Iowa 1986)). In this case,
there is no doubt the city’s interest in protecting the community from the
threat of juvenile delinquency is legitimate. Thus, the only remaining
issue is whether the ordinance is rationally related to this legitimate
governmental interest. Parental responsibility laws, such as the
ordinance in this case, are based on the fairly simple rationale that, if the
state imposes sanctions or threatens to impose sanctions on the parent
for the delinquent acts of his or her child, the parent will exercise better
control and supervision over the child, thereby reducing or eliminating
future acts of juvenile delinquency by that child.
When a child resides with his or her parent, the parent is probably
in the best position to control the child’s behavior. Thus, there is a
reasonable fit between the government’s interest to curb delinquent acts
of a child and the requirement that a parent should exercise reasonable
control over his or her child. For this reason, the ordinance does not
20
violate Anne’s due process rights by interfering with her fundamental
right to parent.
VII. Whether the Juvenile Laws Contained in Iowa Code
Chapter 232 Preempt the Ordinance.
In 1968, the Iowa Constitution was amended to provide municipal
governments the limited power of legislative home rule. Iowa Const. art.
III, § 38A. Our home rule amendment allows the legislature to retain the
unfettered power to forbid a municipality from exercising police powers,
even over those matters traditionally thought to involve local matters.
Seymour, 755 N.W.2d at 538. However, “as long as an exercise of police
power over local affairs is not ‘inconsistent with the laws of the general
assembly,’ municipalities may act without express legislative approval or
authorization.” Id. (quoting Iowa Const. art. III, § 38A). The purpose of
the home rule amendment was to give local government the power to
pass legislation over its local affairs subject to the superior authority of
the legislature. Goodell v. Humboldt County, 575 N.W.2d 486, 492 (Iowa
1998). To determine whether municipal action is permitted or prohibited
by the legislature, courts have developed the doctrine of preemption.
Seymour, 755 N.W.2d at 538. The preemption doctrine dictates that
municipalities cannot act if the legislature has directed otherwise. Id.
When the legislature exercises its authority in an area, legislative power
trumps the authority of local government to do the same. Id. We have
recognized three types of preemption—express preemption, implied-
conflict preemption, and implied-field preemption. Id. at 538–39;
Goodell, 575 N.W.2d at 492–93. We will examine each in turn.
A. Express Preemption. Express preemption applies when the
legislature has explicitly prohibited local action in a given area.
Seymour, 755 N.W.2d at 538; Goodell, 575 N.W.2d at 492. Anne argues
21
the language contained in Iowa Code section 232.8, that the Iowa
juvenile court has “exclusive original jurisdiction in proceedings
concerning a child who is alleged to have committed a delinquent act,”
expressly preempts the ordinance. Iowa Code § 232.8(1)(a). The city
claims there is no provision in the Iowa Code that expressly preempts the
ordinance. By its terms, the jurisdictional section cited by Anne does not
explicitly prohibit the imposition of sanctions by a city on a parent based
on a child’s alleged delinquency. Therefore, the language contained in
Iowa Code section 232.8 does not expressly preempt the ordinance.
B. Implied-Conflict Preemption. Implied-conflict preemption
occurs when a local ordinance prohibits an act permitted by a statute or
permits an act prohibited by a statute. Seymour, 755 N.W.2d at 538;
Goodell, 575 N.W.2d at 493.
The theory of this branch of implied preemption is that even
though an ordinance may not be expressly preempted by the
legislature, the ordinance cannot exist harmoniously with a
state statute because the ordinance is diametrically in
opposition to it.
Seymour, 755 N.W.2d at 538. For conflict preemption to apply, the local
ordinance must be “irreconcilable” with state law, meaning the conflict
must be “obvious, unavoidable, and not a matter of reasonable debate.”
Id. at 539.
In this case, Anne argues the ordinance is inconsistent with the
Iowa juvenile justice code because it sets up a local court proceeding that
is less protective and less responsive to due process and the needs of
families, which shadows the juvenile court system. Moreover, Anne
argues the ordinance may cause the juvenile and local courts to require
the parent to engage simultaneously in conflicting or competing
interests. We disagree.
22
The ordinance in question no more conflicts with the juvenile
justice court system than does Iowa Code section 613.16, which imposes
vicarious liability upon parents for the tortious damages to persons or
property caused by their children. See Iowa Code § 613.16. The
ordinance does not attempt to lower the due process standards of the
juvenile court, but instead holds parents liable for the delinquency of
their children. While the juvenile justice system focuses on the child, the
ordinance focuses on the parental control exercised by the parent over
the child. Thus, the ordinance and the juvenile justice system serve two
different purposes, which do not obviously and unavoidably conflict.
C. Implied-Field Preemption. Implied-field preemption occurs
when the legislature has “so covered a subject by statute as to
demonstrate a legislative intent that regulation in the field is preempted
by state law.” Seymour, 755 N.W.2d at 539; see also Goodell, 575
N.W.2d at 493. However, extensive regulation in a certain field is not
enough. Seymour, 755 N.W.2d at 539. Instead, “[i]n order to invoke the
doctrine of field preemption, there must be some clear expression of
legislative intent to preempt a field from regulation by local authorities,
or a statement of the legislature’s desire to have uniform regulations
statewide.” Id.; see also Goodell, 575 N.W.2d at 493, 499–500
(recognizing the need for a high degree of legislative expression before
this court will find subject-wide preemption). Therefore, “[t]here must be
persuasive concrete evidence of an intent to preempt the field in the
language that the legislature actually chose to employ.” Seymour, 755
N.W.2d at 539.
Anne argues the legislative pronouncement that the Iowa juvenile
court has “exclusive original jurisdiction in proceedings concerning a
child who is alleged to have committed a delinquent act” also evidences
23
the legislature’s intent to preempt this field and provide uniform
regulation. Iowa Code § 232.8(1)(a). Thus, Anne claims Iowa’s juvenile
justice code provides a comprehensive scheme for dealing with allegedly
delinquent children and their families and preempts this field from local
regulation. Again, we disagree.
The ordinance does not attempt to exercise jurisdiction over the
child, but instead merely imposes sanctions upon a parent whose child
has allegedly committed a delinquent act. Nowhere in Iowa’s
comprehensive juvenile justice code does the legislature clearly indicate a
legislative intent to preempt this field or a desire to provide uniform
regulations for imposing sanctions on parents for their children’s
delinquency. See Iowa Code §§ 232.1–.196. Consequently, Anne has
failed to produce “persuasive concrete evidence of an intent to preempt
the field in the language that the legislature actually chose to employ.”
Seymour, 755 N.W.2d at 539.
Therefore, we find Anne has failed to establish the ordinance has
been expressly or impliedly preempted by Iowa’s juvenile justice code.
VIII. Whether the Ordinance Contains an Irrational and Unfair
Presumption.
Anne claims we can uphold the district court decision by finding
the ordinance contains an irrational and unfair presumption that, if a
minor violates the law, the court can assume the violation was a result of
the parent’s failure to exercise reasonable parental control of the minor.
In analyzing this claim, we start with the principle that a person who
violates the ordinance commits a municipal infraction. Davenport Mun.
Code § 9.56.050. A municipal infraction is a civil offense. Iowa Code
§ 364.22(1). Thus, our analysis requires us to review the appropriate
civil law precedents to determine if we can uphold the district court
24
decision by finding the ordinance contains an irrational and unfair
presumption.
A presumption in a civil case violates the Due Process Clause of
the United States Constitution if it is arbitrary or operates to deny a fair
opportunity to rebut it. W. & A.R.R. v. Henderson, 279 U.S. 639, 642, 49
S. Ct. 445, 447, 73 L. Ed. 884, 888 (1929); Calkins v. Adams County
Coop. Elec. Co., 259 Iowa 245, 253, 144 N.W.2d 124, 128–29 (1966). 3
The reason for this rule is simple—“[l]egislative fiat may not take the
place of fact in the judicial determination of issues involving life, liberty,
or property.” W. & A.R.R., 279 U.S. at 642, 49 S. Ct. at 447, 73 L. Ed. at
888.
In order for a person to violate the ordinance, he or she must fail to
“exercise sufficient control over a said minor(s) to prevent the minor(s)
from committing any unlawful act in violation of federal law, state law or
city ordinance.” Davenport Mun. Code § 9.56.040(A). The standard for
finding that a parent violated the ordinance is negligence. Id. The
ordinance creates a rebuttable presumption “that the parent failed to
exercise reasonable parental control of said parent’s minor(s)” after
A second occurrence or an adjudication or the entry of
an informal adjustment agreement involving a minor related
to any unlawful act, and prior notification to the parent of
the parental responsibility ordinance including notice of
possible fines or penalties . . . .
Id. The ordinance defines an “occurrence” to mean “a law enforcement
agency has probable cause to believe a particular child engaged in a
delinquent act and has filed a delinquency complaint with the court
3Anne does not claim or make an argument under the Iowa Constitution in her
brief when she claims the ordinance contains an irrational and unfair presumption that
if a minor violates the law, the court can assume the violation was a result of the
parent’s failure to exercise reasonable parental control of the minor. Therefore, we will
only analyze this issue under the Federal Constitution.
25
based upon such probable cause or has otherwise taken said child into
custody.” Id. § 9.56.020(E). The ordinance allows the parent to rebut
the presumption created by the ordinance. Id. § 9.56.040(B). Without
this presumption, the city has the burden to prove by clear, satisfactory,
and convincing evidence that the parent failed to exercise reasonable
parental control of his or her minor, and the second “occurrence” was
caused by the parent’s failure to exercise reasonable parental control.
Iowa Code § 364.22(5)(b). In other words, upon a second “occurrence,” a
parent is presumed negligent. Because the second “occurrence” is the
fact used to presume negligence, the ordinance’s presumption also
presumes causation—that a parent’s negligence in controlling his or her
child is the cause of the child’s delinquency.
In Calkins, we were confronted with an analogous presumption.
259 Iowa at 248, 144 N.W.2d at 125. There, the plaintiff was injured
when his horse came in contact with a guy wire, and he was thrown from
his horse. Id. at 251, 144 N.W.2d at 127. At the time of the injury, the
applicable statute provided:
“In case of injury to any person or property by any such
transmission line, negligence will be presumed on the part of
the person or corporation operating said line in causing said
injury, but this presumption may be rebutted by proof.”
Id. at 248, 144 N.W.2d at 125 (quoting Iowa Code § 489.15 (1962)). In
construing the presumption, the court noted by inferring negligence from
the injury, the presumption not only presumed negligence but also
presumed causation. Id. at 252, 144 N.W.2d at 128. Although the
presumption of negligence was rebuttable, we held the presumption
violated the defendant’s due process rights because the presumption was
arbitrary and had no reasonable relationship to the facts of the case. Id.
at 253, 144 N.W.2d at 129.
26
Our holding in Calkins is consistent with the well-settled law that
in an ordinary negligence action the mere fact an incident occurred does
not mean a party is negligent. Armbruster v. Gray, 225 Iowa 1226, 1230,
282 N.W. 342, 344 (1938). Generally, we do not allow a fact finder to
infer negligence from an injury because injuries can happen without any
negligence. Harvey v. Borg, 218 Iowa 1228, 1232, 257 N.W. 190, 193
(1934). Thus, it is irrational to allow a fact finder to use the mere
occurrence of an incident to presume a person was negligent and the
cause of the incident. Id. (“It is universally agreed that no inference of
negligence arises from the mere fact that a collision occurred.”).
We believe the presumption contained in Davenport’s ordinance is
just as arbitrary and irrational as the presumption in an ordinary
negligence case. There can be many causes for a child to commit an
“occurrence” under the ordinance. As one authority notes:
Experts fail to agree on the causes of delinquency. Its
cause is as complex as poverty, drug abuse, or any other
social problem. . . . Even when several experts do agree on
causation, they disagree about solutions or prevention
methods.
Experts who identify a dysfunctional family as a
primary reason for delinquent behavior often cite factors
other than lack of discipline as a cause. For example,
poverty and family disruption (divorce, death in the family
etc.), both outside the reach of parenting classes, may
contribute to delinquent behavior. Though most laws
presume parents of delinquents are not “heavy handed”
enough, several studies indicate that strict discipline
increases delinquent behavior.
Michelle L. Casgrain, Parental Responsibility Laws: Cure for Crime or
Exercise in Futility?, 37 Wayne L. Rev. 161, 173–74 (1990); accord James
Herbie DiFonzo, Parental Responsibility for Juvenile Crime, 80 Or. L. Rev.
1, 45 (2001) (finding the biological and social factors that may lead a
child to commit delinquent acts are profoundly intertwined). Other
27
authorities agree that family coupled with the interrelated forces of
school, housing, recreation, community life, employment, and the
juvenile justice system itself influence a juvenile toward or away from
delinquency. Penelope D. Clute, “Parental Responsibility” Ordinances—Is
Criminalizing Parents When Children Commit Unlawful Acts a Solution to
Juvenile Delinquency?, 19 Wayne L. Rev. 1551, 1576–77 (1973); accord
Linda A. Chapin, Out of Control? The Uses and Abuses of Parental
Liability Laws to Control Juvenile Delinquency in the United States, 37
Santa Clara L. Rev. 621, 670–71 (1997) (“Most current researchers
concede that the relationship between the family and juvenile
delinquency is complex, and that a ‘bad’ parent is not the sole cause of a
‘bad’ child.”); Christine T. Greenwood, Holding Parents Criminally
Responsible for the Delinquent Acts of Their Children: Reasoned Response
or “Knee-Jerk Reaction”?, 23 J. Contemp. L. 401, 411 (1997) (stating,
although there is a dispute over the exact degree, most researchers agree
that certain functions and characteristics of the family are one of the
factors that cause juvenile delinquency); Kathryn J. Parsley,
Constitutional Limitations on State Power to Hold Parents Criminally Liable
for the Delinquent Acts of Their Children, 44 Vand. L. Rev. 441, 468 (1991)
(noting other factors contributing to juvenile delinquency include social
class, educational level, urbanization, living conditions, social instability,
drug abuse, school failure, inadequate family relationships, antisocial
values, child abuse, and association with delinquent peers).
Consequently, while the family might have an effect on juvenile
delinquency, it may not be a factor contributing to juvenile delinquency
in a specific case.
Therefore, allowing a fact finder to presume negligence and
causation based on the happening of an “occurrence,” rather than
28
finding negligence and causation based on the facts, is arbitrary and
irrational in light of the multiple factors that can cause the “occurrence,”
as defined by the statute. Long ago, we realized that things happen
absent a person’s negligence. For this reason, we do not permit a fact
finder to presume a person’s negligence merely because some incident
occurred. Accordingly, we hold the provisions of the ordinance creating
the presumption are arbitrary and irrational and violate the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.
Our holding does not mean the entire ordinance is void. Our
constitutional duty requires us to preserve as much of the ordinance as
possible within constitutional restraints. Fed. Land Bank of Omaha v.
Arnold, 426 N.W.2d 153, 157–58 (Iowa 1988). When possible, our duty
requires us to declare unconstitutional only that portion of the statute
that is found to violate the Constitution. Id. It is appropriate for us to
sever unconstitutional provisions from constitutional portions of a
statute if the severance does not substantially impair the enactment’s
legislative purpose, the enactment remains capable of fulfilling the
apparent legislative intent, and the remaining portion of the enactment
can be given effect without the invalid provision. Am. Dog Owners Ass’n,
Inc. v. City of Des Moines, 469 N.W.2d 416, 418 (Iowa 1991). The
Davenport Municipal Code also recognizes this concept of severance by
providing:
If any section, subsection, sentence, clause or phrase
of this code is for any reason held to be invalid or
unconstitutional, such decision shall not affect the validity of
the remaining portions of this code. The council hereby
declares that it would have passed this code, and each
section, subsection, sentence, clause and phrase thereof,
irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases had been
declared invalid or unconstitutional, then the original
ordinance or ordinances shall be in full force and effect.
29
Davenport Mun. Code § 1.01.100. Thus, we cannot presume the city
council intended its ordinances to be treated as a whole. Clark v. Miller,
503 N.W.2d 422, 425 (Iowa 1993).
We find the provisions of section 9.56.040 of Davenport’s parental
responsibility ordinance dealing with the presumption that a parent
failed to exercise reasonable parental control of his or her child upon a
second “occurrence” can be severed from the rest of the ordinance and
strike those provisions from the ordinance. The Iowa Code requires a
city to prove a violation of a municipal infraction by clear, satisfactory,
and convincing evidence. Iowa Code § 364.22(5)(b). Accordingly, for the
city to prove a first, second, or subsequent violation of the ordinance, it
must prove by clear, satisfactory, and convincing evidence that a parent
failed to exercise reasonable parental control of his or her minor, and the
“occurrence” was caused by the parent’s failure to exercise reasonable
parental control.
IX. Attorney Fee Award.
The district court awarded attorney fees based on its finding that
the entire ordinance was unconstitutional. On appeal, we found the
presumption of failure to exercise reasonable parental control under
section 9.56.040 of the ordinance to be unconstitutional and severed the
unconstitutional portion of the ordinance from the remainder of the
ordinance. The court, in its discretion, may award reasonable attorney
fees to a prevailing party in a civil rights action. 42 U.S.C. § 1988(b).
One of the factors to be considered when awarding attorney fees under
42 U.S.C. § 1988 is the level of the prevailing party’s success in the
litigation. Hensley v. Eckerhart, 461 U.S. 424, 430, 103 S. Ct. 1933,
1938, 76 L. Ed. 2d 40, 48 (1983). Therefore, we must vacate the award
of attorney fees and remand the case to the district court to determine
30
the proper award of attorney fees, if any, considering the level of the
prevailing party’s success in this litigation.
X. Disposition.
We hold the presumption of failure to exercise reasonable parental
control under section 9.56.040 of the Davenport Parental Responsibility
Ordinance is unconstitutional and sever the unconstitutional portion of
the ordinance from the remainder of the ordinance. Therefore, we must
affirm in part and reverse in part the judgment of the district court. We
also vacate the attorney fee award and remand the case to the district
court to reconsider its award of attorney fees, taking into consideration
the prevailing party’s level of success in the litigation as one of the
factors in making its award. Accordingly, we remand the case to the
district court to enter judgment consistent with this opinion.
APPEAL AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED; CROSS-APPEAL REVERSED AND REMANDED.