State v. Robinson

SNELL, Justice

(dissenting).

I respectfully dissent.

The majority has reached its result by invading the domain of the legislature which, under our structure of government, is given the sole responsibility to create the law. In so doing, it has violated the separation of powers doctrine and concomitantly inverted our cardinal rule of statutory construction. See State v. Wagner, 596 N.W.2d 83, 89 (Iowa 1999). That rule directs us to look first to the words of the statute to determine if its meaning is ambiguous. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 363 (Iowa 2000). If it is, only then may the court resort, for help in finding its meaning, to legislative history. State v. Rodgers, 560 N.W.2d 585, 586 (Iowa 1997).

Instead of following this procedure of ageless acceptance, the majority has begun its analysis by charting the legislative history of the obscenity statutes. See, e.g., Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 379-80; State v. Burke, 368 N.W.2d 182, 185 (Iowa 1985); Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 241 Iowa 358, 361-62, 41 N.W.2d 1, 3-4 (1950); Smith v. Sioux City Stock Yards Co., 219 Iowa 1142, 1148, 260 N.W. 531, 534 (1935); Slaats v. Chicago, Milwaukee & St. Paul Ry., 149 Iowa 735, 743, 129 N.W. 63, 66 (1910). From this it concludes that, although there are no statutory words that say so, the legislature must have intended to eliminate all exemptions for the use of appropriate material for educational purposes that have child pornography as its subject matter. This con-*320elusion forms the predicate for the majority’s deduction that the exemption statute, Iowa Code section 728.7, is not ambiguous and as such presents no constitutional problem based on vagueness. The majority also decides that the exemption statute is a nullity and cannot apply to any case involving child pornography because the history of obscenity statutes passed by the legislature shows legislative intent to so act.

I dissent because the majority has strayed from our charge as a separate branch of government and from our traditional track of analysis in statutory construction cases. In following its course of analysis, the majority has backed into its result. Its conclusion that the exemption statute is not ambiguous and a nullity because of the legislative history of other statutes left nothing to construe. The statutory construction doctrine was left in its wake.

I believe the plain meaning of the words in the exemption statute, rather than legislative history, dictates the result in this case. If a statute is not ambiguous, this court need not look any further. It is improper to use legislative history of other statutes to come to a conclusion that a statute is not ambiguous. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 865; State v. McSorley, 549 N.W.2d 807, 809 (Iowa 1996).

I. Nothing Means Nothing

The language of the exemption is very clear. Iowa Code § 728.7 (1999). The exemption reads:

Nothing in this chapter prohibits the use of appropriate material for educational purposes in any accredited school, or any public library, or in any educational program in which the minor is participating. Nothing in this chapter prohibits the attendance of minors at an exhibition or display of art works or the use of any materials in any public library.

Id. “Nothing in this chapter” states an absolute. See id. (emphasis added). The legislature did not say that some things applied or that only specific sections would fall under the exemption. The language evidences an intent to apply every listed crime in chapter 728 to the exemption for educational purposes.

The legislature added the crime of child pornography to chapter 728 in the same year the final version of the exemption became effective. 1978 Iowa Acts ch. 1188, § 1 (codifying the prohibition of child pornography at Iowa Code section 728.12); 1976 Iowa Acts ch. 1245, § 2806 (effective Jan. 1, 1978) (amending the exemption at Iowa Code section 728.7, originally enacted at Iowa Code section 725.5 (1974)). The version of the exemption, as it still reads today, linked its application to the entire chapter by adding the word “chapter” to its language. 1976 Iowa Acts ch. 1245 § 2806. The closeness in time between the final amendment of the exemption extending its reach to the entire chapter and the child pornography statute suggests that the legislature did not inadvertently commingle the two in the same chapter. The exemption continued to be applicable to all legislation within the chapter.

The legislature had every opportunity to (1) create a new chapter for child pornography so that it would not fall under the exemption, (2) place language in section 728.12 stating the exemption did not apply to it, or (3) amend the exemption to preclude its application to section 728.12. The legislature did none of these things. In fact, the two sections have coexisted together in the same chapter for twenty-two years and neither has been amended to exclude the other. Moreover, it is clear that the legislature knew how to limit its exemptions under this chapter. The obscenity provisions used to be located within chapter 592. See Iowa Code §§ 13183-13197 (1939). An exemption for druggists and doctors was contained in chapter 592 during this period. Id. § 13195. This ex*321emption specifically limited its scope to certain sections within the chapter. See id. No such exclusive language exists in section 728.7. Further, when the legislature enacted the predecessor to section 728.7 in 1974, it specifically applied the exemption for educational purposes to section 725.10 titled “Lascivious acts with persons under the age of sixteen years.” Iowa Code § 725.5 (1975). This suggests the legislature recognized that even this prohibited act with a minor could be exempted in an educational setting.

While I recognize that child pornography is the most deleterious of all obscenity, I cannot ignore the plain meaning of the exemption. The court cannot do the job of the legislature and impose restrictions on the scope of a statute which do not exist. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 879 (“We determine the intent from what the legislature said, not from what it might or should have said.”). As it is written, child pornography is included in the exemption. If child pornography was not meant to fall within the exemption, that is for the legislature to decide by amending the statutory exemption. Moulton v. Iowa Employment Sec. Comm’n, 239 Iowa 1161, 1172, 34 N.W.2d 211, 216 (1948) (“The court is not at liberty to read into the statute provisions which the legislature did not see fit to incorporate, nor may it enlarge the scope of its provisions by an unwarranted interpretation of the language used.” (quotations and citation omitted)).

Such judicial legislating is expressly prohibited by the separation of powers doctrine. Webster County Bd. of Supervisors v. Flattery, 268 N.W.2d 869, 872-74 (Iowa 1978); Jahnke v. Inc. City of Des Moines, 191 N.W.2d 780, 797 (Iowa 1971) (Reynold-son, J., dissenting). “To subject [a] clearly worded statute to interpretation would usurp the prerogatives of the legislature. ... This would effectively deprive the legislature of its power to create and declare [the law].” Burke, 368 N.W.2d at 185. One legal authority has noted: “[T]he enumeration of exceptions from the operation of a statute indicates that it should apply to all cases not specifically excepted.” 2 Jabez Gridley Sutherland, Statutes & Statutory Construction § 4916 (3d ed. 1943 & Supp.1971). In other words:

We are not justified in erecting a bar where the legislature did not so provide. The express mention of the one thing implies the exclusion of the other. This rule is expressed in the often quoted Latin phrase “expressio unius est exclu-sio alterius.” We have said: The legislative intent is expressed by omission as well as by inclusion.

North Iowa Steel Co. v. Staley, 253 Iowa 355, 357, 112 N.W.2d 364, 365 (1961).

The court cannot impose restrictions on a statute which do not exist. “For us to fashion such a rule would simply constitute judicial legislation.” Bruns v. State, 503 N.W.2d 607, 612 (Iowa 1993). “A contrary holding would simply be judicial legislation in the guise of judicial interpretation.” Slager v. HWA Corp., 435 N.W.2d 349, 357 (Iowa 1989). To exclude child pornography from the exemption, as the majority has done, evidenced “more than a modest amount of judicial legislation.” See Shell Oil Co. v. Bair, 417 N.W.2d 425, 429 (Iowa 1987). The majority effectively rewrote the statute.

In another statutory interpretation case, the appellant sought to limit the statute in question to apply only to particular areas. Klaes v. Scholl, 412 N.W.2d 178, 179 (Iowa 1987) (interpreting Iowa Code § 686.15 (1987)). That is what the State is asking us to do here. In Klaes, we appropriately held: “In view of the clear language of the statute, however, interpreting [the section] to limit [what it applies to] would be tantamount to judicial legislation, and we decline to do so.” Id.

In response to an attempt to expand a statute to include certain areas not listed, this court held:

*322It may be conceded that the legislature, if it saw fit to do so, might make such a provision. As the law stands, however, no such provision has been made by the legislature, and it is not the province of the court to enact such a provision by what is sometimes referred to as judicial legislation.

Graves v. Eagle Iron Works, 331 N.W.2d 116, 118 (Iowa 1983). That same analysis applies here where the majority limits the exemption statute to what it thinks the statute ought to be limited to. To create an exception to the exemption effectively usurps “the prerogative of the legislature to declare what the law shall be.” State ex rel. Lankford v. Mundie, 508 N.W.2d 462, 463 (Iowa 1993).

The Iowa Constitution expressly separates the judiciary from the other two branches of government. “The powers of the government of Iowa shall be divided into three separate departments- — the legislative, executive, and the judicial: 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....” Iowa Const, art. Ill, § 1. We have previously recognized that “[e]ach department must remain independent if the constitutional safeguards are to be maintained. For the judiciary to play an undiminished role as an independent and equal coordinate branch” it must not encroach upon the authority of the other departments. Flattery, 268 N.W.2d at 873.

It is not within the power of the judiciary to create exceptions to an unambiguous statute which do not exist in the plain language. The province of the judiciary is to construe statutory law, not to make law not passed by the legislature. “[W]hat is desirable or advisable or ought to be is a question of policy, not a question of fact. What is necessary or what is in the best interest is not a fact and its determination by the judiciary is an exercise of legislative power.” Warren County v. Judges of the Fifth Judicial Dist., 243 N.W.2d 894, 903 (Iowa 1976) (quotations and citation omitted); see Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 379.

II. The Only Material in Need of the Exemption Is Child Pornography

“Nothing in this chapter prohibits the use of appropriate material for educational purposes in any accredited school....” Iowa Code § 728.7 (emphasis added). Section 728.12(3) states that it is illegal for a person to knowingly possess child pornography. By contrast, the use of obscene materials is not similarly prohibited. A person is only guilty of a criminal act in regard to obscene materials when he has the intent to “knowingly rent[ ], sell[ ], or offer for rental or sale material depicting patently offensive representations.... ” Id. § 728.4.

In State v. Schrup, we held that a defendant could not be charged with the mere possession of obscene materials without also having the intent to distribute them. State v. Schrup, 229 Iowa 909, 911, 295 N.W. 427, 428 (1940). The court determined:

The legislature was not concerned by the mere possession of obscene pictures. The purpose of the act is to guard the public morals, to discourage the dissemination of the pictures which tend to corrupt and debauch the morals of those minds [that] are susceptible to such lecherous influences. Hence, the requirement that to constitute a crime, the possession must be with the intent to sell, loan or give away the obscene pictures.

Id. at 910-11, 295 N.W. at 428 (discussing Iowa Code section 13190 which was an earlier counterpart of section 728.4).

Use of obscene materials by a student in a college class for a report is not consistent with the intent to sell, rent, or loan the material. As such, this student could not be guilty for merely possessing obscene materials without the required in*323tent. For this reason, the student would not need the protection of the first sentence of the exemption in section ,728.7 which exempts from the commission of a criminal act, “the use of appropriate material for educational purposes.” Similarly, a professor using the material to teach the class does not have the intent to sell, rent, or loan the material and this teacher would also not need the aid of the exemption.

If the first sentence of the exemption is not necessary for obscene materials, what other purpose could it have under chapter 728? The obvious reason behind the first sentence of the exemption, “[n]othing in this chapter prohibits the use of appropriate material for educational purposes in any accredited school,” is to exempt child pornography in this limited area. Under the majority’s conclusion that all child pornography is never appropriate what is the point of this first sentence? The majority opinion gives the first sentence of section 728.7 absolutely no meaning because it would not exempt anything under chapter 728.

III. The Meaning of “Appropriate”

This court has recognized that “we ... seek a reasonable interpretation and construction which will best effect the purpose of the statute, seeking to avoid absurd results.” State v. Link, 341 N.W.2d 738, 740 (Iowa 1983) (citations omitted). I find that applying child pornography to the exemption does not create an absurd result for the following reasons.

The majority concludes that because child pornography is always inappropriate, “appropriate material” is not an ambiguous term. The majority looks at “appropriate material” by viewing the nature of the material itself. The exemption should actually be read to define appropriate by its use rather than its nature. The conclusion should follow then that any material used for actual educational purposes will be appropriate. In other words, any material in chapter 728 will be appropriate if it is used for a bona fide educational purpose. The nature of the material is irrelevant because the exemption states that no provision will prohibit the use of such materials in an educational setting.

The majority’s opinion is wrong because it interprets the exemption in direct opposition to its plain meaning. Effectively the majority rewrites the exemption to state: “Nothing in this chapter, excluding child pornography .... ” There is no basis for this radical departure from the plain words of the exemption. The court merely states it knows the exemption does not apply to child pornography. Further, section 728.12(3) makes it a crime to depict child pornography with any visual medium. A depiction is not just a picture, it includes the written word as well. The American Heritage Dictionary defines depict as: “1. To represent in a picture or sculpture. 2. To represent in words; describe.” The American Heritage Dictionary 383 (2d ed.1985). As such, this holding is expansively broad, possibly making criminal a professor’s use of any materials, the printed word or pictures, to discuss child pornography and studies done about it. Likewise, because section 728.12(3) applies to a “book, magazine, or other print or visual medium,” the majority’s holding will criminalize a student’s use of any material to write a research paper which explores the effect child pornography has on society.

The majority’s decision has broken the barrier between judging and legislating. This is ill advised, contrary to established law and a hauntingly bad precedent.

I would vacate Robinson’s guilty plea,„ reverse Robinson’s conviction, and remand for dismissal of the charges.