Tinker, Tailor, Soldier, Lord Chancellor
How are counselors to medieval kings connected to a recent Iowa car crash? They are both on either side of a long tradition of a flexible and adaptable power to do justice. A recent ruling of the Iowa Supreme Court stands as a reminder that “the judicial power” includes “equitable powers” and that state constitutions protect those powers.
A 76-day COVID bonus
The case itself is an intersection of very ordinary facts with a very extraordinary time that we can all remember very well. Almost exactly this time five years ago, we were all told it was our duty to “flatten the curve.” Numerous state and federal orders flew across daily life proclaiming various emergencies. In the midst of this the Iowa Supreme Court, asserting its powers as the supervisor of the Iowa state court system, entered additional orders. One included a provision suspending statutes of limitations from March 17, 2020 to June 1, 2020. This 76-day period then applied to any claims that would expire from March 17 through December 31, 2020. Thus, for example, if you had a claim—whether it be for breach of contract, or a tort, or whatever—whose statute of limitations would expire on September 1, 2020, you’d instead get another 76 days to file it, or until November 15, 2020.
This applied to the plaintiff in the case, Rivas v. Brownell. Rivas alleged she was injured in a car crash on August 4, 2018. Under Iowa’s two-year statute of limitations for tort claims, she had until August 4, 2020 to sue two other drivers who she claimed were at fault. But with the benefit of the 76-day delay she gained a bit more time. And for whatever reason she took advantage of that delay, filing her case on October 16, 2020. As the case progressed the defendants successfully moved for summary judgment. They won not because they proved they weren’t at fault, but because they argued that the 76-day delay was unlawful and therefore that Rivas’s lawsuit was time-barred. That basic question then came to the Iowa Supremes.
Courts as administrators
The defendants’ argument was, essentially, that the setting of statutes of limitations is a legislative, not judicial, function. Therefore, it would have been the role of the legislature, not the state supreme court, to allow for the 76-day extension. And even if the legislature could have delegated that power to the court, it did not—unlike the wide emergency powers that it had delegated to the governor and which were used in numerous ways in Iowa and other states (ways we can remember all too well).
A majority of the court rejected that argument and sided with Rivas, ruling the extension was permissible. It conceded that broadly speaking, setting statutes of limitations is, indeed, a legislative function. And it noted that the Iowa Constitution—unlike the U.S. Constitution—has an explicit Separation of Powers Clause, which states the government’s power is divided into three branches “and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.” (Art. III, Sec. 1.) Further, the state constitution specifically grants the legislature the power “to provide for a general system of practice in all the courts of this state.” (Art. V, Sec. 14.) But the majority also argued that this particular power was not exclusively a legislative one. The constitution vests in the state supreme court the power to “exercise a supervisory and administrative control over all inferior judicial tribunals throughout the state.” (Art. V, Sec. 4.) (Emphasis added.) And Article V, Section 1 explicitly gives the courts “the judicial power” which, the majority argued, itself includes “inherent authority” to do certain things, including crafting “protocols and procedures.”
The court went into some caselaw about what these various powers mean, but at bottom the question it thought determinative was how expansive is “supervisory and administrative control”? That could simply mean ruling on appeals and writs coming up from lower courts in individual cases. More expansively it could include rule making, such as the rules of evidence or of civil procedure. And more expansively than that it could include something like a statute of limitations, as that is a way to “administer” what happens in court.
It settled on this most expansive reading. Given the state of things in the spring of 2020, with in-person contact suspended or severely restricted, the necessary activities to get a lawsuit together were inhibited or just couldn’t happen, such as meeting with clients, talking with witnesses, or tracking down medical providers. Therefore, it was within the court’s power in supervising and administering what the lower courts do to extend the time when lawsuits could be filed.
The majority also nodded to how courts often suspend statutes of limitations in individual cases through equitable doctrines. As we’ll see, though, this would be more important to the concurrence. Also, to emphasize how it wasn’t acting alone, the court provided an appendix of what all fifty states did with emergency orders, many of which also extended statutes of limitations. (Whether they actually had constitutional or statutory authority to do so would depend on the laws of each state, of course.)
Equity expects
Justice Christopher McDonald rejected the majority’s analysis and concurred only in the judgment. He thought the statute of limitations extension was not allowed under the “court’s supervisory and administrative control.” But he did think it was allowed pursuant to the court’s equitable powers.
What are equitable powers? And where do they come from? The concurrence doesn’t go deep into this part of the story, but a bit fuller explanation would be helpful here.
Today we generally say “equitable powers” to mean a court’s power to issue injunctions and related remedies and its jurisdiction over certain matters, from land transfers to corporate ownership. But that’s just shorthand for the powers that a court of equity would possess. What’s a court of equity? That goes way way back in history to the Lord Chancellor of England.
Long ago in the days of Norman kings there was just one royal court in England, the court of the King. Think a place where foreign dignitaries, noble lords, and jesters all congregate to have an audience with the monarch. Over the centuries this “court” broke into multiple “courts”—a very early example of the separation of powers. What we now know as Parliament slowly took over legislative functions and other institutions gradually took over various judicial functions. The “common law courts,” especially the King’s Bench and Court of Common Pleas, were some of the latter.
But the law can be harsh, and the common law courts were not great at giving some kinds of relief. Thus, people would still directly petition the Crown hoping to get around the courts. And the person tasked with receiving those petitions was the Lord Chancellor.
Until quite recently the Lord Chancellor was bit of a funny position stretching across the various “branches” of government wearing multiple “hats.” In the role’s earliest beginnings its occupant was the keeper of the Crown’s seal (for marking official documents), but the role grew to include many other tasks, including presiding over the House of Lords, and, most importantly for our story, assessing petitions to the Crown. And so over time the Lord Chancellor’s office itself came to be an alternative court. This court evolved into what we now know as the Chancery, a court of equity. Hence, equitable powers.
The incongruities of the position were noted in a poem in Alan Patrick Herbert’s 1923 children’s book Tinker, Tailor*:
Poor gentleman—he has to mix
With barristers and lords;
He is in charge of lunatics,
And coroners, and wards;
And what with listening to Earls,
And looking after orphan girls,
And imbeciles of every sort,
And Judges of the County Court,
And all that kind of thing,
He gets extremely little sleep;
And then, of course, he has to keep
The Conscience of the King;
And sometimes at the close of day
He gives a Vicarage away;
My point—and I do have one—is that the origins of equitable powers were quite loose and, in fact, almost by definition it was that way because the Chancery’s purpose was to excuse the rough edges of “law” (the common law courts) in order to do justice. This doesn’t mean the Lord Chancellor himself, or courts of equity more generally, could do whatever they wanted. But they did have a lot of leeway in helping make happen what they thought was a just result.
At the time of the American Revolution the division between “law” and “equity” was still fairly sharp. But consolidation was coming. And some of that happened in the writing of the U.S. Constitution itself, which states: “The judicial Power shall extend to all Cases, in Law and Equity.” Iowa’s constitution, adopted in 1857, mentions the “judicial power,” as we saw above, and also states that district courts shall be courts “of law and equity.” Therefore, just as we see that the Iowa Constitution gives its state courts common law powers it gives them equitable powers too—and that includes the somewhat elastic powers of the Lord Chancellor to do right.
Which brings us back to Justice McDonald’s concurrence. He argued that generally speaking the Iowa Supreme Court has the authority to toll statutes of limitations under its equitable powers. He asserted that the legislature could take those powers away, but it had not. There’s nothing in his opinion about the English Chancery, but this allowance of what the legislature could do is parallel to what Parliament could do to the Lord Chancellor’s powers. Indeed, in the centuries since the American Revolution, Parliament has taken away many of that position’s powers, so that today’s Lord Chancellor, Shabana Mahmood, is a lot more like a standard cabinet member.
I would add that as the Iowa Constitution guarantees the “judicial power” there may be additional protections on the court’s equitable powers—as well as legal powers—to shield the courts from the legislature. This includes the power of courts to fashion remedies, something I’ve written about previously. These are protections that the Lord Chancellor, serving in a system with legislative supremacy, does not enjoy.
Constitutional equity
Thus, concluded Justice McDonald, the delay of statutes of limitations was in some ways a straightforward application of the traditional equitable power to do that in individual cases. The big counterargument, he admitted, is that this isn’t just one case, but all cases, indeed, all of which have yet to be filed. Given the extreme nature of events in the spring of 2020, and the flexibility of equitable powers, though, he thought the court had the power to issue its order. He did not, in contrast to the majority, think that the “supervisory and administrative control” of the courts justified what the court did. That was stretching that power too far. In other words, the power of equity could go further than the specific power of supervision and administration.
The dissent by Justice David May found both theories—that the court could extend statutes of limitations for all potential parties under its “supervisory and administrative control” or equitable powers—a bridge too far. On the equity point he argued that “because the extension didn’t involve a particular case, there were no specific litigants (not even class representatives) whose individual circumstances could be analyzed. So equitable doctrines aren’t relevant.” And he makes a good point that the extension is less like, say, an injunction—even a universal injunction that benefits parties not even before the court—than a statute that is adopted completely outside the bounds of a lawsuit. They are called “statutes of limitations” after all.
I take no position on who is right or wrong in this matter. But I’ve spent a lot of time here on the equitable powers argument because it’s a reminder of (1) the flexible and adaptable nature of a court’s equitable powers, and (2) the fact that in the American context, equitable powers are granted and protected by our constitutions. Therefore, when you see a situation where legislatures or even courts themselves are trying to cut back on those powers, especially in the case of litigation against the government, question whether they can constitutionally do that. All kinds of roadblocks that are thrown in the way of justice, such as exhaustion requirements, immunities, or other procedural pitfalls, defeat the purpose of the equitable side of our legal system. The spirit of the tireless “poor gentleman” helping Earls and orphan girls is there in our constitutions. If the harshness of our “law” means there’s no equivalent to the Lord Chancellor to petition, it’s a sign things may have taken a wrong turn.
*In case you’re wondering, that book was undoubtedly inspired by an old nursery rhyme that sometimes began “Tinker, tailor, soldier, sailor, rich man, poor man, beggarman, thief.” And it’s from the rhyme itself that John Le Carré got the title for his famous novel, and later TV series and film, Tinker, Tailor, Soldier, Spy.
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.