David Michael Johnston v. Iowa Department of Transportation

IN THE SUPREME COURT OF IOWA
No. 19–0048

Submitted January 21, 2021—Filed April 16, 2021

DAVID MICHAEL JOHNSTON,

Appellant,

vs.

IOWA DEPARTMENT OF TRANSPORTATION,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Jeanie K.

Vaudt, Judge.

Driver appeals dismissal of his petition to review agency action

revoking his driver’s license as a habitual offender. DECISION OF COURT

OF APPEALS AND DISTRICT COURT ORDER AFFIRMED.

Oxley, J., delivered the opinion of the court, in which Appel,

Waterman, Mansfield, and McDonald, JJ., joined. McDermott, J., filed a

dissenting opinion, in which Christensen, C.J., joined.

Christopher Stewart of Gribble, Boles, Stewart & Witosky Law, Des

Moines, for appellant.

Thomas J. Miller, Attorney General, and Michelle E. Rabe, Assistant

Attorney General, for appellee.
 2

OXLEY, Justice.

Nearly twenty years ago we held that a deferred judgment counts as

a “final conviction” for purposes of mandatory license revocation under

Iowa Code section 321.209. Schilling v. Iowa Dep’t of Transp., 646 N.W.2d

69, 73 (Iowa 2002). Today, we reaffirm that holding with respect to

administrative license revocations under Iowa Code sections 321.555 and

321.560. Our intervening decision in State v. Tong, 805 N.W.2d 599 (Iowa

2011) did nothing to erode Schilling v. Iowa Department of Transportation.

I.
Context matters. Criminal convictions have collateral consequences

in a variety of contexts. Convictions are used, as here, to administratively

suspend a person’s privilege to drive. They are also used to criminalize

otherwise lawful activity, such as possession of a firearm by a person with

a felony conviction.

We have long recognized that “our interpretation of the term

‘conviction’ depend[s] upon the statutory context.” Daughenbaugh v.

State, 805 N.W.2d 591, 598 (Iowa 2011). This is not a new concept; nor is

it limited to the statutes at issue in this case. See, e.g., State v. Brodene,

493 N.W.2d 793, 796 (Iowa 1992) (en banc) (addressing whether a guilty

plea without judgment and sentencing constitutes a conviction for

purposes of impeachment under Iowa Rule of Evidence 5.609(a) and

explaining that “[w]hen used in a statute or rule, the word ‘conviction’ may

have various meanings, depending on its purpose”); State v. Kluesner, 389

N.W.2d 370, 372 (Iowa 1986) (addressing “conviction” for purposes of

restitution under Iowa Code section 910.2). Where a conviction is used to

enhance a criminal penalty, we construe the term “conviction” with a
relatively narrow and technical meaning. Schilling, 646 N.W.2d at 71. But

where a conviction is used primarily to protect the public rather than as a
 3

criminal punishment, we give the term a broader meaning. See id.

(discussing cases). Thus, a conviction “may be final for one purpose and

not for another.” Id. (quoting Maguire v. Fulton, 179 N.W.2d 508, 511 (Iowa

1970)).1

The question of whether a person has a “final conviction” often arises

when they receive a deferred judgment for a criminal offense. When a

district court grants a deferred judgment, it places the defendant on

probation and imposes civil penalties. Iowa Code § 907.3(1)(a) (2018).

Once the defendant fulfills all the conditions of probation and pays all
required fees, “the defendant shall be discharged without entry of

judgment.” Id. § 907.3(1)(c). The criminal record related to the deferred

judgment is then expunged. Id. § 907.9(4)(b).

This case involves the use of a deferred judgment as one of the three

underlying convictions counted by the Iowa Department of Transportation

(IDOT) to revoke David Johnston’s driver’s license as a habitual offender.

Johnston was arrested for operating while intoxicated (OWI) on December

23, 2011, and was convicted on March 8, 2012. Not quite six years later,

Johnston was again arrested on November 12, 2017, and charged both

with OWI and with eluding a police officer under Iowa Code section

1The dissent would not only overrule Schilling, but its entire line of well-

established cases. “[I]nterpretation of a statute . . . [is an] area[] where historically we
have been most reluctant to disturb precedent.” Youngblut v. Youngblut, 945 N.W.2d 25,
39 (Iowa 2020) (citing cases). Further, despite what others say about legislative
acquiescence and stare decision, we, on numerous occasions, have said: “The rule of
stare decisis ‘is especially applicable where the construction placed on a statute by
previous decisions has been long acquiesced in by the legislature . . . .’ ” Bd. of Water
Works Trs. v. Sac Cnty. Bd. of Supervisors, 890 N.W.2d 50, 61 (Iowa 2017) (omission in
original) (quoting In re Est. of Vajgrt, 801 N.W.2d 570, 574 (Iowa 2011)); see also
Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 585 (Iowa 2017) (“We are
adhering to our consistent prior interpretations of the Act since 1992—interpretations
that have not been disturbed by the legislature—and the doctrine of stare decisis.”).
 4

321.279(1)(a). Johnston was convicted of both offenses on April 19, 2018,

and received a deferred judgment on the eluding charge.

Four days after Johnson was convicted of the two new charges, the

IDOT notified Johnston it was revoking his driver’s license under Iowa

Code section 321.560 for garnering three enumerated convictions in a six-

year period, making him a habitual offender under Iowa Code section

321.555(1) (defining “habitual offender” as “any person who has

accumulated convictions for separate and distinct offenses . . . for which

final convictions have been rendered”). Johnston requested a hearing on
the revocation. Throughout the agency proceedings, which included the

initial hearing and two agency appeals, Johnston argued that the deferred

judgment he received on the eluding charge was not a “final conviction”

and could not be counted as one of the three predicate convictions under

the habitual offender statute. And throughout the agency proceedings,

the IDOT rejected Johnston’s argument based on our holding in Schilling.

Undeterred, Johnston filed a petition for judicial review of the IDOT’s

final agency decision on September 28, 2018. The district court upheld

the agency action, and Johnston continued his challenge by appealing to

this court. We transferred the appeal to the court of appeals. Up to this

point, Johnston had challenged Schilling as being eroded by our

subsequent decision in Tong, a challenge that was uniformly rejected. The

court of appeals likewise “decline[d] to depart from Schilling,” concluding

“section 321.555(1) has the purpose of protecting the public.”

Johnston added a twist to his argument in his brief on appeal. He

had successfully discharged the deferred judgment on May 6, 2019, just

before his proof appellate brief was due. So in that brief, he also seized on
language in Tong, where we noted that “[w]e have on occasion adopted the

compromise view that a deferred judgment remains a conviction until the
 5

defendant successfully completes his or her term of probation.” 805

N.W.2d at 603. Thus, Johnston argued he was entitled to relief since he

has now successfully completed the terms of his probation.

We granted further review and now clarify that our holding in

Schilling is alive and well.2

II.

The Iowa Administrative Procedure Act provides a mechanism for

judicial review of agency actions, the procedure Johnston utilized here.

Iowa Code § 17A.19. In exercising judicial review of the agency’s action,
the district court acts as an appellate court, and its review is

circumscribed by Iowa Code chapter 17A. See Christiansen v. Iowa Bd. of

Educ. Exam’rs, 831 N.W.2d 179, 186 (Iowa 2013). To the extent Johnston

challenges the legal effect of his deferred judgment, our review, as was the

district court’s, is for correction of errors at law. See McMahon v. Iowa

Dep’t of Transp., 522 N.W.2d 51, 54 (Iowa 1994); see also Iowa Code

§ 17A.19(10)(c). In a contested case such as this, “the law limits court

review to the agency’s record.” McMahon, 522 N.W.2d at 54. The court’s

role is to review the specific action taken by the agency, in this case, the

IDOT’s revocation of Johnston’s driver’s license as a habitual offender.

III.

In Schilling, Schilling’s driver’s license was revoked under Iowa Code

section 321.209 shortly after he received a deferred judgment for eluding

the police. 646 N.W.2d at 70–71. Section 321.209 requires the IDOT to

revoke the driver’s license “upon receiving a record of the operator’s

2Johnston raised two other arguments on appeal: (1) whether there was sufficient
evidence to support the underlying eluding charge, and (2) whether the six-year period
applies to the dates of offense or the dates of conviction. We choose not to address those
issues, and “the court of appeals decision stands as final” as to both. State v. Putman,
848 N.W.2d 1, 7 (Iowa 2014).
 6

conviction for [enumerated offenses, including eluding under Iowa Code

section 321.279], when such conviction has become final.” Id. at 70

(quoting Iowa Code § 321.209 (1999)). We concluded that statutory

scheme “is designed for the protection of the public, not for punishment”

and established a broad definition to determine whether the deferred

judgment would be considered a “conviction [that] has become final” for

purposes of section 321.209. Id. at 73. A defendant has a final conviction

under the broad sense of the term if four elements are met:

(1) A judge or jury has found the defendant guilty, or the
defendant has entered a plea of guilty; (2) the court has
ordered some form of punishment, penalty, or restraint on the
person’s liberty to be imposed; (3) a judgment of guilty may be
entered if the person violates the terms of probation or fails to
comply with the requirements of the court’s order; and (4) the
conviction has become final.

Id. Under the last element, “[a] conviction is final if the defendant has

exhausted or waived any postorder challenge.” Id.

Here, Johnston argued throughout the agency proceedings, and now

on judicial review of those proceedings, that we limited Schilling in Tong.

Tong involved the very different context of Iowa Code section 724.26, part

of our criminal code, which prohibits possession of a firearm by “[a] person
who is convicted of a felony.” Iowa Code § 724.26(1). Tong had pleaded

guilty to burglary, a felony, and received a deferred judgment. Tong, 805

N.W.2d at 600–01. In rejecting Tong’s argument that he had not been

“convicted of a felony” because he received a deferred judgment, we noted

that our distinction between punitive and protective purposes from

Schilling and earlier cases “may be of limited usefulness” where section

724.26 served both to protect the public and to punish the defendant,

something of a hybrid. Id. at 602. We found it more salient that the statute
applied both to convicted felons and to juveniles “adjudicated delinquent
 7

on the basis of conduct that would constitute a felony if committed by an

adult.” Id. (emphasis added) (quoting Iowa Code § 724.26(1) (2009)). We

concluded the general assembly intended “convicted of a felony” to apply

more broadly where the statute focused on conduct rather than

“convictions” in the strict sense of the word. Id.

We reinforced our conclusion with the fact that Tong had not

completed the terms of his deferred judgment and was still on probation.

Id. at 603. We noted that “[w]e have on occasion adopted the compromise

view that a deferred judgment remains a conviction until the defendant
successfully completes his or her term of probation.” Id. (citing State v.

Birth, 604 N.W.2d 664, 665 (Iowa 2000)). Ultimately, we held “a deferred

judgment constitutes a conviction for purposes of section 724.26 where

the defendant (as here) has not completed his term of probation.” Id.

Johnston jumps on this language from Tong to argue for a different

outcome here, pointing out in his appellate brief that he has now

completed the requirements of his deferred judgment.

The court of appeals, as did both the agency and the district court

before it, rightly rejected Johnston’s argument that Tong limited Schilling.

The court of appeals “decline[d] to depart from Schilling,” concluding

section 321.555(1), like section 321.209, “has the purpose of protecting

the public.” It nonetheless considered Johnston’s new argument,

concluding that even under the Tong holding, Johnston could not prevail

because he was still on probation for the deferred judgment at the time of

the agency proceedings.

We took this case to clarify two points. First, lest there be any

confusion, Tong did nothing to weaken Schilling’s application to statutes
meant to protect the public. As we said at the beginning, context matters.

Section 321.555 is not the hybrid type of statute we addressed in Tong,
 8

which arose under our criminal code. Johnston’s license was revoked

administratively under authority granted to the IDOT in chapter 321,

governing motor vehicles and laws of the road. The purpose of the habitual

offender statute contained in section 321.555, similar to the revocation

statute in section 321.209 at issue in Schilling, is to protect the public

from drivers who garner three convictions for any of the serious offenses

identified by the general assembly over a six-year period. That section

321.555(1) allows for a lengthier suspension of driving privileges than

allowed in section 321.209 reflects nothing more than the general
assembly’s determination that a longer period of protection is needed from

an offender who repeatedly commits the prohibited offenses. The district

court, as did the court of appeals, properly applied the Schilling four-factor

test to conclude Johnston’s deferred judgment for eluding police was a

“final conviction” for purposes of section 321.555(1) and supported the

IDOT’s revocation of Johnston’s license.

Second, there is no basis in the record for addressing Johnston’s

separate Tong argument that his subsequent completion of probation

changes things. That Johnston later successfully completed the terms of

the deferred judgment in May 2019 makes it no less a final conviction at

the time IDOT revoked his license, which is the agency action Johnston

challenges and all we are reviewing in this chapter 17A judicial review

proceeding. Given the state of the agency record, which did not and could

not have included evidence that Johnston’s deferred judgment was

subsequently expunged in May 2019, there was no reason to consider

Johnston’s newfound Tong argument. Cf. TLC Home Health Care, L.L.C. v.

Iowa Dep’t of Hum. Servs., 638 N.W.2d 708, 710 (Iowa 2002) (“Our review
is limited ‘to determining whether the district court correctly applied the

law in exercising its section 17A.19(8) judicial review function.’ ” (quoting
 9

Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Hum. Servs., 613 N.W.2d 674,

676 (Iowa 2000) (en banc))).

As to our continued adherence to Schilling, unlike the dissent, we

resist the temptation to interpret “conviction” under a different framework

than we established in Schilling. At its core, the dissent’s justification for

overruling Schilling is simply a disagreement with the statutory

interpretation made in that case. This is not the type of “manifest” error

or “compelling reason” that supports overruling our precedent. Bd. of

Water Works Trs. v. Sac Cnty. Bd. of Supervisors, 890 N.W.2d 50, 61–62
(Iowa 2017) (describing McElroy v. State, 703 N.W.2d 385, 395 (Iowa 2005),

as involving the type of manifest error that supports overriding stare

decisis, where McElroy overruled Smith v. ADM Feed Corp., 456 N.W.2d

378 (Iowa 1990) (en banc) because experience putting the Smith majority’s

interpretation into practice, coupled with changes in federal law, revealed

the problems with the interpretation).

The dissent claims we must read convictions to exclude deferred

judgments in section 321.555 because the general assembly distinguished

convictions from deferred judgments in section 321J.2(8) by placing them

in different subsections. What the dissent fails to recognize, however, is

that even though the general assembly placed deferred judgments and

convictions in different subsections, it still treated a deferred judgment the

same as a conviction for purposes of counting as a second or successive

offense for sentencing and license revocation purposes under our OWI

laws. See Iowa Code § 321J.2(8). Thus, the dissent is incorrect to

characterize the separate subsections as an effort to distinguish

convictions from deferred judgments. It may well be that the general
assembly included separate subsections in 321J.2(8) as a belt-and-

suspenders method of ensuring both are counted as second or subsequent
 10

offenses. See, e.g., Atl. Richfield Co. v. Christian, ___ U.S. ___, ___, 140

S. Ct. 1335, 1350 n.5 (2020) (“ ‘[S]ometimes the better overall reading of

the statute contains some redundancy.’ We find it much more likely that

Congress employed a belt and suspenders approach to make sure that all

[Comprehensive Environmental Response, Compensation, and Liability

Act of 1980 (CERCLA)] lawsuits are routed to federal court than that

Congress intended the reference to federal courts in § 113(h) to affect state

courts.” (emphasis omitted) (citation omitted) (quoting Rimini St., Inc. v.

Oracle USA, Inc., 586 U. S. ___, ___, 139 S. Ct. 873, 881 (2019))); King v.
Burwell, 576 U.S. 473, 502, 135 S. Ct. 2480, 2498 (2015) (Scalia, J.,

dissenting) (“Lawmakers sometimes repeat themselves—whether out of a

desire to add emphasis, a sense of belt-and-suspenders caution, or a

lawyerly penchant for doublets (aid and abet, cease and desist, null and

void).”); Yates v. United States, 574 U.S. 528, 562, 135 S. Ct. 1074, 1096

(Kagan, J., dissenting) (“The presence of both § 1519 and § 1512(c)(1) in

the final Act may have reflected belt-and-suspenders caution: If § 1519

contained some flaw, § 1512(c)(1) would serve as a backstop.”).3

Schilling’s interpretation of section 321.209 made the administrative

revocation rules consistent with the sentencing and revocation rules in

section 321J.2(8)—both count deferred judgments toward revocation.

3Even the dissent’s go-to authority cautions that the surplusage canon “must be
applied with judgment and discretion,” because “[s]ometimes drafters do repeat
themselves and do include words that add nothing of substance, either out of a flawed
sense of style or to engage in the ill-conceived but lamentably common belt-and-
suspenders approach.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 176–77 (2012) [hereinafter Scalia & Garner]; see also State v.
Thompson, 954 N.W.2d 402, 417, (Iowa 2021) (explaining that “the ‘shall not consider’
language” in Iowa Code section 814.6A was “merely tautological surplusage”); Ethan J.
Leib & James J. Brudney, The Belt-and-Suspenders Canon, 105 Iowa L. Rev. 735, 741–
43 (2020) (explaining it is not uncommon for legislators to engage in redundant drafting
out of an abundance of caution to ensure a subject is fully covered).
 11

Given this consistency, we see no principled reason, and the dissent offers

none, for revisiting our precedent. That the general assembly made it

doubly clear that both convictions and deferred judgments count under

section 321J.2(8) provides little, if any, indication that the general

assembly intended the opposite result for license revocations under

sections 321.209 or 321.555 merely because the general assembly did not

mirror that language. It certainly does not reflect manifest error or a

compelling need to ignore stare decisis.4

The district court’s order dismissing Johnston’s petition for judicial
review is affirmed.

DECISION OF COURT OF APPEALS AND DISTRICT COURT

ORDER AFFIRMED.

4To the extent the dissent claims that our refusal to overrule Schilling is itself
unconstitutional as a violation of the separation of powers, we are aware of no court or
commentator to even suggest that a court’s adherence to stare decisis in cases involving
statutory interpretation violates the separation of powers. Now-Justice Amy Coney
Barrett’s analogy to judges operating under a civil law system certainly does not. See
Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 1069–70
(2003). “It is well-known that civil-law systems do not [even] observe the rule of stare
decisis.” Id. at 1067 & n.221. We, of course, do not operate under a civil-law system.
Thus, that civil-law judges who rely “on a long line of precedent rather than thinking
independently through an issue of textual interpretation . . . might offend separation of
powers,” id. at 1069–70, says nothing of our doing the same. Nor does the dissent’s
reliance on Scalia and Garner’s discussion of the differences between originalism and
dynamic textual construction. Scalia and Garner explained that under the latter, “[w]hen
government-adopted texts are given a new meaning, the law is changed; and changing
written law, like adopting written law in the first place, is the function of the first two
branches of government.” Scalia & Garner, at 82. This was a comment on dynamic
statutory construction, not adherence to stare decisis. Undeniably, interpreting written
law, as we did in Schilling, is a judicial function. By applying our precedent, we have not
“given a new meaning” to the same statutory language; we have done the exact opposite
by giving effect to the same interpretation we gave to the same statutory language twenty
years ago. If anyone is giving new meaning to the statute, it is the dissent.
The dissent’s real disagreement with our adherence to Schilling is whether
legislative acquiescence provides a strong or a weak basis for adhering to our prior
statutory interpretations. This is a difference in judicial philosophy about canons of
statutory construction, not a violation of the separation of powers.
 12

Appel, Waterman, Mansfield, and McDonald, JJ., join this opinion.

McDermott, J., files a dissenting opinion, in which Christensen, C.J.,

joins.
 13

#19–0048, Johnston v. Iowa DOT

McDERMOTT, Justice (dissenting).

My dissent arises not from any disagreement with the majority’s

analysis of our precedent, but with the precedent itself. The text of Iowa’s

motor vehicle statutes, in my view, doesn’t support the conclusion that

Johnston’s deferred judgment is a “final conviction” to count toward a

habitual offender calculation, and I thus would reverse the district court’s

ruling.

What does “conviction” mean? It’s a simple question without a
simple answer. Our court over the years has often answered the question

with a hedge: it depends. “Conviction,” we’ve said, “has an ‘equivocal

meaning’ that depends upon the context in which it is used.”

Daughenbaugh v. State, 805 N.W.2d 591, 597 (Iowa 2011) (quoting State

v. Hanna, 179 N.W.2d 503, 507 (Iowa 1970)). We’ve distinguished between

the use of the term “in its general and popular sense,” with conviction

meaning “the establishment of guilt independent of judgment and

sentence,” and alternatively “in its technical legal sense,” with conviction

referring to “a formal adjudication by the court and the formal entry of a

judgment of conviction.” Id. And how do we discern the difference in

context? Well, it depends.

It depends on whether we think the word as used in a statute

advances either a punishment purpose or a public safety purpose. State

v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986). We’ve said it gets “a

relatively narrow and technical meaning where it appears in statutes used

to enhance punishment,” yet it gets “a broader definition when protection

of the public has been at stake.” Id. And what if we can’t make out a clear
winner in the contest between punishment and public protection? Well,

“[w]e have on occasion adopted the compromise view that a deferred
 14

judgment remains a conviction until the defendant successfully completes

his or her term of probation.” State v. Tong, 805 N.W.2d 599, 603 (Iowa

2011) (citing State v. Birth, 604 N.W.2d 664, 665 (Iowa 2000)). So in cases

of jump balls, a deferred judgment is considered a conviction—until it isn’t.

And in this case, we have to answer not just what does “conviction”

mean, but what does “final conviction” mean? In Maguire v. Fulton, we

said the term “final conviction” doesn’t have “a hard and fast definition.”

179 N.W.2d 508, 511 (Iowa 1970). Hedging our bets once again, we said

that it could be “final for one purpose and not for another,” and that its
meaning “depends upon the intention of the legislature.” Id. In McKeever

v. Gerard, we held that a person who received a deferred judgment had no

right of appeal either as a direct appeal or as a petition for certiorari

because there were no “conviction” in the district court. 368 N.W.2d 116,

119 (Iowa 1985) (“A defendant who elects to have the case eventually

treated as if there was no conviction cannot simultaneously attack the

case as if there had been one.”) One can hardly fault the defendant in this

case for bringing an appeal wondering what “final conviction” means as

applied to this particular statute.

The court’s pulling and stretching of the word “conviction” over the

years is enough to make taffy makers pay homage. But it’s unmoored, in

my view, from the statutory text when read in its full context in this case.

We’re dealing in this case with the interpretation of words in Iowa’s motor

vehicle statutes. A reader will find nothing in these statutes that say the

word “conviction” experiences a metamorphosis depending on whether

judges think the word advances a punishment purpose or a public safety

purpose.
Because we’re interpreting words in a statute, our analysis in this

case begins—and I would argue, ends—with what the text of the statute
 15

says and fairly implies. See Doe v. State, 943 N.W.2d 608, 610 (Iowa 2020)

(stating that when interpreting a law, the words of the text are of

paramount importance); Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 16, 33 (2012) [hereinafter Scalia & Garner,

Reading Law]. Here’s the first statute requiring our interpretation in this

case, the motor vehicle habitual offender law:

As used in this section and sections 321.556 through
321.562, “habitual offender” means any person who has
accumulated convictions for separate and distinct offenses
described in subsection 1, 2, or 3, committed after July 1,
1974, for which final convictions have been rendered, as
follows:
1. Three or more of the following offenses, either
singularly or in combination, within a six-year period:
....
2. Six or more of any separate and distinct offenses
within a two-year period in the operation of a motor vehicle
....
Iowa Code § 321.555 (2018). Johnston challenges that deferred

judgments shouldn’t count as “final convictions [that] have been

rendered,” and thus that he shouldn’t have been deemed a habitual

offender.

Deferred judgments are covered in Iowa Code section 907.3. With a

deferred judgment, “a plea of guilty, a verdict of guilty, or a special verdict

upon which a judgment of conviction may be rendered” are put off

(deferred) by the court during a probationary period. Iowa Code § 907.3.

If at the conclusion of the probationary period the defendant has complied

with the terms of probation and paid any fines, “the defendant shall be

discharged without entry of judgment.” Id. § 907.3(1)(c). The legislature

has limited the situations in which courts can enter deferred judgments.
See id. § 907.3(1)(a)(1)–(14). The legislature has also limited the number
 16

of times a defendant can receive a deferred judgment in the course of a

lifetime; like eyeballs, you only get two. See id. § 907.3(1)(a)(2).

A judge’s workbench is stocked with time-forged interpretive tools.

We construe the text of a statute as a whole. Doe, 943 N.W.2d at 610;

Scalia & Garner, Reading Law, at 167. Words and phrases are presumed

to bear the same meaning throughout a text. State v. Richardson, 890

N.W.2d 609, 619 (Iowa 2017); Scalia & Garner, Reading Law, at 170. A

material change in terms suggests a change in meaning. Id. We interpret

every word and every provision of a statute to give it effect, if possible.
Maguire, 179 N.W.2d at 510; Scalia & Garner, Reading Law, at 174.

Applying these principles of interpretation, we see that in our motor

vehicle laws the legislature treats deferred judgments separate and distinct

from convictions. In Iowa’s operating while intoxicated statute, Iowa Code

chapter 321J, the legislature separately addressed convictions and

deferred judgments in explaining how the calculation of prior violations

works:
8. In determining if a violation charged is a second or
subsequent offense for purposes of criminal sentencing or
license revocation under this chapter:
a. Any conviction or revocation deleted from motor
vehicle operating records pursuant to section 321.12 [i.e., that
were deleted because the offenses happened more than twelve
years ago] shall not be considered as a previous offense.
b. Deferred judgments entered pursuant to section
907.3 for violations of this section shall be counted as
previous offenses.
c. Convictions or the equivalent of deferred judgments
for violations in any other states under statutes substantially
corresponding to this section shall be counted as previous
offenses. . . . Each previous violation on which conviction or
deferral of judgment was entered prior to the date of the
violation charged shall be considered and counted as a
separate previous offense.
 17

Iowa Code § 321J.2(8)(a)–(c).5 If the legislature intended the word

“conviction” to include deferred judgments, it would have been pointless

for the legislature to have written a subsection b stating that deferred

judgments count as prior offenses since subsection a already stated that

convictions count as prior offenses. Similarly, in subsection c, it would

have been pointless for the legislature to state that “[e]ach previous

violation on which conviction or deferral of judgment was entered prior to

the date of the violation charged shall be considered and counted as a

separate previous offense” if deferred judgments were already included in
the meaning of conviction. Id. § 321J.2(8)(c) (emphasis added).

The legislature made this distinction between “conviction” and

“deferred judgment” equally clear in the deferred judgment statute itself

when it repeated otherwise identical subsections to differentiate prior

convictions from prior deferred judgments:

(b) If the defendant has previously been convicted of a
violation of section 321J.2, subsection 1, or a violation of a
statute in another state substantially corresponding to section
321J.2, subsection 1.

(c) If the defendant has previously received a deferred
judgment or sentence for a violation of section 321J.2,

5Iowa’s operating while intoxicated provisions previously resided in chapter 321
until given their own chapter (321J) in 1986. Compare Iowa Code § 321J.2 (1987), with
Iowa Code § 321.281 (1985); see also 1986 Iowa Acts ch. 1220, § 37 (“Section 321.555,
subsection 1, paragraph b, Code 1985, is amended to read as follows: b. Operating a
motor vehicle in violation of section 321.281 321J.2.”). The distinction between deferred
judgments and convictions in section 321J.2 was likewise found in the operating while
intoxicated provisions when they resided in chapter 321:
No conviction for, deferred judgment for, or plea of guilty to, a
violation of this section which occurred more than six years prior to the
date of the violation charged shall be considered in determining that the
violation charged is a second, third or subsequent offense. For the
purpose of determining if a violation charged is a second, third, or
subsequence offense, a deferred judgment pursuant to section 907.3 for
an offense under this section shall be counted as a previous violation.
Iowa Code § 321.281(2)(c) (1985).
 18
subsection 1, or for a violation of a statute in another state
substantially corresponding to section 321J.2, subsection 1.

Iowa Code § 907.3(1)(a)(6)(b)–(c). We must conclude the legislature

referred to “conviction” and “deferred judgment” as distinct concepts

because these subsections contain the exact same wording except the

words “has previously been convicted of a violation” in subsection (b) were

changed to “has previously received a deferred judgment or sentence for a

violation” in subsection (c). Id. (emphasis added). Again, if “conviction”

included deferred judgments, it would have been a pointless exercise for

the legislature to have written subsection (c) stating that prior deferred
judgments count as violations since subsection (b) already stated that prior

convictions count as violations.

We don’t read statutes to imply that the legislature wasted its time

and ink by including redundant provisions. Canons of statutory

interpretation require that every word and every provision in a statute is

to be given effect, if possible, and not deemed mere surplusage. Bribriesco-

Ledger v. Klipsch, ___ N.W.2d ___, ___ (Iowa 2021). No word should be

ignored, and no provision should needlessly be given an interpretation that

causes it to duplicate another provision or to have no consequence. Scalia

& Garner, Reading Law, at 174; accord United States v. Butler, 297 U.S. 1,
65, 56 S. Ct. 312, 319 (1936) (“These words cannot be meaningless, else

they would not have been used.”). Our court has relied on this principle—

that we do not interpret the legislature’s language in statutes as

meaningless or redundant—throughout our jurisprudence. See, e.g., In re

Chapman, 890 N.W.2d 853, 857 (Iowa 2017); Iowa Auto Dealers Ass’n v.

Iowa Dep’t of Revenue, 301 N.W.2d 760, 765 (Iowa 1981).

I recognize this analysis clashes with our interpretation in Schilling
v. Iowa Department of Transportation, which dealt with a prior-offense
 19

calculation in another motor vehicle statute where that statute, like

section 321.555 referred to “conviction” but not “deferred judgment.” 646

N.W.2d 69, 71–73 (holding that the term “conviction” included the

unexpressed “deferred judgment” in calculating prior offenses for license

revocation under section 321.209). But our court’s interpretation of

“conviction” in Schilling as including deferred judgments clashes with our

interpretative canons. Viewing “conviction” to include “deferred judgment”

makes superfluous the legislature’s discrete treatment of these terms. If

the legislature meant the same thing, we expect it would have said the
same thing. The variation in terms suggests a variation in meaning, and

thus “conviction” as used in section 321.555 shouldn’t be read to include

a deferred judgment. State v. Paye, 865 N.W.2d 1, 7 (Iowa 2015) (“When

the same term appears multiple times in the same statute, it should have

the same meaning each time.”) Unlike other sections of our motor vehicle

statutes that speak directly of both convictions and deferred judgments,

section 321.555 speaks only of convictions. “The principle that a matter

not covered is not covered is so obvious that it seems absurd to recite it.”

Scalia & Garner, Reading Law, at 93.

Why would we assume the legislature meant to differentiate

convictions and deferred judgments for prior offense calculations in other

motor vehicle statutes but not in section 321.555? We construe the text

of a statute as a whole, with words and phrases presumed to bear the

same meaning throughout a text. Richardson, 890 N.W.2d at 619; Scalia

& Garner, Reading Law, at 167–70. The legislature’s failure to add the

phrase “deferred judgment” to section 321.555 doesn’t mean judges

should reach for pens and start adding words to the statute that we know
the legislature is perfectly capable of adding itself. As Justice Brandeis
 20

put the point: “To supply omissions transcends the judicial function.”

Iselin v. United States, 270 U.S. 245, 251, 46 S. Ct. 248, 250 (1926).

The majority bows to Schilling’s erroneous interpretation based on

stare decisis. But we have said stare decisis doesn’t prevent the court

“from reconsidering, repairing, correcting or abandoning past judicial

announcements when error is manifest, including error in the

interpretation of statutory enactments.” Miller v. Westfield Ins., 606

N.W.2d 301, 306 (Iowa 2000) (en banc). Our interpretive error is manifest;

it’s difficult to imagine how the legislature could draft a clearer separation
between “conviction” and “deferred judgment” than the parallel

construction provided in section 321J.2(8). Instead of plying our holding

in Schilling with smelling salts and declaring it “alive and well,” we should

acknowledge its fatal flaws and administer last rites.

Our adherence to an erroneous interpretation of “conviction” in the

name of upholding our own precedent over the text of the statute violates

the separation of powers. Under the separation of powers, the judicial

branch holds “the ‘province and duty . . . to say what the law is’ in

particular cases and controversies.” Plaut v. Spendthrift Farm, Inc., 514

U.S. 211, 218, 115 S. Ct. 1447, 1453 (1995) (omission in original) (quoting

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Where the

legislature has spoken in its statutes, the court’s role is interpretation of

what the text of those statutes provides. The legislature’s text must serve

as our higher guide when it conflicts with one of our precedents. “When

government-adopted texts are given a new meaning, the law is changed;

and changing written law, like adopting written law in the first place, is

the function of the first two branches of government”—elected legislators
and elected executive officials. Scalia & Garner, Reading Law, at 82–83.
 21

Legislative statutes outrank judicial precedents when the two are in

conflict, and a court may not prefer its own erroneous interpretation of a

statute over the statute itself. “[I]f the Court encounters a decision that is

demonstrably erroneous—i.e., one that is not a permissible interpretation

of the text—the Court should correct the error, regardless of whether other

factors support overruling the precedent.” Gamble v. United States, 587

U.S. ____, ____, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring).

Adhering to a demonstrably erroneous precedent “is tantamount to

making law” and “both disregards the supremacy of the Constitution and
perpetuates a usurpation of the legislative power.” Id. When the judiciary

usurps legislative power in this manner, it violates the constitutional

separation of powers. See Garg v. Macomb Cnty. Cmty. Mental Health

Servs., 696 N.W.2d 646, 659 n.10 (Mich. 2005) (reciting principles

supporting stare decisis but nonetheless overruling an earlier case’s

interpretation of statutory text since “so also are these values promoted by

the separation of powers doctrine, which holds that it is the responsibility

of the judiciary to respect the intentions of the Legislature by giving faithful

meaning to the words of the law”); see also Amy Coney Barrett, Stare

Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 1069–70 (2003)

(discussing circumstances where “reliance on the precedent might offend

separation of powers if the judge might have come out a different way

based on independent analysis of the text”).

The majority’s claim that we should assume our prior interpretation

was correct because no Iowa legislatures since our decision in Schilling

have amended the statute to reject our construction of “conviction” in

Schilling offers a hollow reason to continue to follow an erroneous
construction. “The court is always free to correct its own mistakes, and

legislative inaction is not a bar to doing so.” State ex rel. Iowa Dep’t of
 22

Health v. Van Wyk, 320 N.W.2d 599, 607 (Iowa 1982) (McCormick, J.,

dissenting) (citing 2A Norman J. Singer, Statutes and Statutory

Construction § 49.10 (4th ed. C. Sands 1973)). “Legislative inaction has

been called a ‘weak reed upon which to lean’ and a ‘poor beacon to follow’

in construing a statute.” 2B Norman J. Singer, Statutes and Statutory

Construction § 49:10, at 112–115 (6th ed. 2000).

Justice Scalia excoriated the so-called “legislative acquiescence”

justification our majority relies on today. Johnson v. Transp. Agency,

Santa Clara Cnty., Cal., 480 U.S. 616, 671, 107 S. Ct. 1442, 1472 (1987)
(Scalia, J., dissenting). He maintained that a legislative-inaction-confirms-

we-got-it-right assumption “haunts” judicial opinions and urged it “should

be put to rest.” Id. “It is based, to begin with, on the patently false premise

that the correctness of statutory construction is to be measured by what

the current Congress desires, rather than by what the law as enacted

meant.” Id. “To make matters worse, it assays the current Congress’

desires with respect to the particular provision in isolation,” thus ignoring

the legislative process’s give-and-take required to create the “total

legislative package” in which the isolated provision happens to reside. Id.

The Constitution “creates an inertia” through its “complicated check on

legislation” that, according to Scalia, “makes it impossible to assert with

any degree of assurance” that inaction represents approval of the status

quo. Id. at 672, 107 S. Ct. at 1472 (quoting The Federalist No. 62, at 378

(Clinton Rossiter ed., 1961)). “[O]ne must ignore rudimentary principles

of political science to draw any conclusions regarding [a current

legislature’s] intent from the failure to enact legislation.” Id. at 671–72, 107

S. Ct. at 1472.
 23

Judge Easterbrook describes potentially antidemocratic

consequences when courts base holdings on lawmakers’ failure to act in

response to a court’s interpretation of a statute:

For a long time judges have said that statutes are different
from common law and constitutional law. Courts should
attach a meaning to a statute, then let Congress act or not; a
court could only confuse Congress and increase uncertainty
by revisiting the subject; Congress can correct mistakes. I
doubt that this is so. . . . It assumes, in other words, that as
soon as the judges have spoken, the decision of the past
ceases to matter, and the only question is what the sitting
Congress wishes. This simply denies the purpose of the
enterprise: to enforce the decisions of a prior Congress.

. . . Today’s Congress may leave in place an
interpretation of a law simply because today’s coalitions are
different. The failure of a different body to act hardly shows
that the interpretation of what an earlier one did is ‘right.’

Frank H. Easterbrook, Stability and Reliability in Judicial Decisions,

73 Cornell L. Rev. 422, 426–27 (1988) (footnote omitted). The mere fact

that a legislature could take action “is no excuse for failing to overrule a

statutory precedent of ours that is clearly wrong, for the realities of the

legislative process often preclude readopting the original meaning of a

statute that we have upset.” Clark v. Martinez, 543 U.S. 371, 402, 125

S. Ct. 716, 736 (2005) (Thomas, J., dissenting). Our interpretation should

be based on what the text says and fairly implies, not on our suppositions
about what a legislature’s inaction might mean.6

6Even if legislative acquiescence really did provide a grounding for a particular
interpretation of “conviction,” there seems to be plenty of “acquiescence” to go around in
this case. In 1897, in Hackett v. Freeman, 103 Iowa 296, 298–300, 72 N.W. 528, 529
(1897), we analyzed the definition of “conviction” in a precursor statute to what’s now
Iowa Rule of Evidence 5.609. We defined “conviction” to include “both the ascertaining
of the guilt of the accused and judgment thereon by the court.” Id. at 299–300, 72 N.W. at
529 (emphasis added). Over eighty years later, in discussing the very subject of legislative
acquiescence to our definition of “conviction” in Hackett, we said: “Considering the long
ascendency of that pronouncement without legislative dissent, it is fair to presume that
the court there accurately discerned the legislature’s intent.” State v. Ege, 274 N.W.2d
350, 356 (Iowa 1979) (en banc). The definition of “conviction” we deemed cemented by
 24

Other infirmities exist in Schilling’s foundation. In Schilling we cited

a definition of conviction from a 1965 Ohio Supreme Court case, which in

turn cited a definition of conviction from a law dictionary from 1940,

defining conviction as “that legal proceeding which ascertains the guilt of

the party upon which the sentence or judgment is founded.” Schilling, 646

N.W.2d at 71 (quoting State v. Brantley, 205 N.E.2d 391, 393 (Ohio 1965)

(quoting Bouvier’s Law Dictionary (Baldwin’s Century ed. 1940))). We

quoted the Ohio Supreme Court’s summary of that definition to say that a

conviction is “a legal ascertainment that an offense has been committed.”
Id. (quoting Brantley, 205 N.E.2d at 393). But that summary omitted the

dictionary definition’s concluding phrase: “upon which the sentence or

judgment is founded.” Id. (emphasis added) (quoting Brantley, 205 N.E.2d

at 393). If there’s a “sentence or judgment” that must be found in the legal

proceeding—and with a deferred judgment, there’s neither a sentence nor

a judgment—then a deferred judgment wouldn’t constitute a conviction

even under the particular definition we cited in Schilling.

Where standard interpretive tools provide a simple path for

interpreting “conviction” in section 321.555, we’ve installed unnecessary

complexity. Setting aside that it’s untethered from the text, the punitive-

vs.-public safety examination adopted in Schilling depends too much, in

my view, on the location one chooses to stand in observing the object.

Most criminal penalties both punish harmful conduct and protect the

public from harmful conduct simultaneously. The textual approach

required in this case comes with the added benefit of avoiding such an

exercise.

legislative acquiescence some forty years ago required the court’s entry of a judgment—
the key feature absent with a deferred judgment.
 25

Our court has long recognized that “the principles of stare decisis

and legislative acquiescence in combination ‘are not absolute.’ ” Bd. of

Water Works Trs. v. Sac Cnty. Bd. of Supervisors, 890 N.W.2d 50, 61 (Iowa

2017) (quoting McElroy v. State, 703 N.W.2d 385, 395 (Iowa 2005)). Our

holding in Schilling—upon which the holding in this case relies

completely—was in error. And we possess “not only the right but the duty

to change a past decision if it is erroneous.” State v. Johnson, 257 Iowa

1052, 1056, 135 N.W.2d 518, 521 (1965). The text of section 321.555

receives its correct interpretation by differentiating a deferred judgment
from a conviction. I thus respectfully dissent from the majority’s opinion

that relies on our erroneous decision in Schilling that held otherwise, and

would reverse the district court’s order on judicial review and vacate the

revocation of Johnston’s driving privileges.

Christensen, C.J., joins this dissent.