State of Iowa v. Erin Macke ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 18–0839
Filed September 13, 2019
STATE OF IOWA,
Appellee,
vs.
ERIN MACKE,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Carol S. Egly,
District Associate Judge.
Defendant alleging State breached plea agreement seeks further
review of court of appeals decision affirming her conviction and sentence
for child endangerment. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT CONVICTION AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED FOR RESENTENCING WITH INSTRUCTIONS.
Angela L. Campbell of Dickey & Campbell Law Firm, PLC,
Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas J. Ogden, Assistant
Attorney General, John P. Sarcone, County Attorney, and Nan Horvat,
Assistant County Attorney, for appellee.
2
WATERMAN, Justice.
This case is among dozens of pending appeals presenting the
question whether amendments to Iowa Code sections 814.6 and 814.7
enacted in Senate File 589 (the Omnibus Crime Bill) govern our review of
an appeal from a final judgment and sentence entered before the new
statute’s effective date of July 1, 2019. Amended section 814.6 limits
direct appeals from guilty pleas, and amended section 814.7 requires
ineffective-assistance claims to be brought in postconviction proceedings
rather than by direct appeal.
In 2018, defendant, Erin Macke, entered an Alford plea to four counts
of child endangerment pursuant to an alleged plea agreement she
contends obligated the State to jointly recommend a deferred judgment.
At the sentencing hearing, the State instead recommended, and the court
imposed, a two-year suspended prison sentence without objection from
defense counsel. The defendant appealed with new counsel, claiming the
State had breached the plea agreement and her defense counsel was
ineffective for failing to object. On March 20, 2019, the court of appeals
affirmed her conviction and sentence while preserving her ineffective-
assistance claim for postconviction proceedings. Senate File 589
subsequently was signed into law and became effective July 1 of this year.
We granted Macke’s application for further review and directed the parties
to file supplemental briefs on whether the new law applies. The State
argues Senate File 589 forecloses relief in this direct appeal while Macke
argues the amendments are inapplicable.
On our review, we hold Iowa Code sections 814.6 and 814.7, as
amended, do not apply to a direct appeal from a judgment and sentence
entered before July 1, 2019. We have long held that “unless the legislature
clearly indicates otherwise, ‘statutes controlling appeals are those that
3
were in effect at the time the judgment or order appealed from was
rendered.’ ” James v. State, 479 N.W.2d 287, 290 (Iowa 1991) (quoting
Ontjes v. McNider, 224 Iowa 115, 118, 275 N.W. 328, 330 (1937)). Senate
File 589 lacks language indicating the legislature intended the
amendments to sections 814.6 or 814.7 to apply to appeals from
judgments entered before its effective date. We decline the State’s
invitation to overrule James or follow arguably contrary federal authority.
On the merits, we determine the State breached the plea agreement and
Macke’s original counsel was ineffective for failing to object. We vacate her
sentence and remand the case for the State’s specific performance of the
plea agreement and resentencing by a different judge.
I. Background Facts and Proceedings.
In 2017, Erin Macke, age thirty-one, lived with her four children, ages
six, seven, and twelve (twins), in their Johnston apartment. On
September 20, Macke departed for Germany. Macke had arranged for her
building’s maintenance technician to check on the children at bedtime.
The next day, Matt McQuary, Erin’s ex-husband and father of the twins,
called Johnston police from his home in Texas and requested a welfare
check, reporting to the dispatcher that the children “were left alone by
their mother with an unsecured firearm in the residence” after she left for
Germany without arranging for adult supervision. The responding police
officer found the four children alone in the apartment that evening. They
said their mother was in Germany, and when asked about guns, the oldest
boy led the officer “to his mother’s bedroom and pointed to a pink pistol
case sitting on a shelf” containing an unloaded Glock pistol next to two
magazines holding “9 mm Speer hollow point bullets.” A department of
human services child protective assessment worker placed the children in
4
temporary custody with nearby relatives and later with their respective
fathers.
On October 31, the State charged Erin Macke by trial information
with four counts of child endangerment in violation of Iowa Code section
726.6(1)(a) (2018) and one count of violating section 724.22(2) (transfer of
pistol to a minor). On February 26, 2018, Macke’s defense attorney filed
a “Petition to Plead Guilty (Alford),” which recited a plea agreement with
the State as follows: “Alford plea to Counts 1–4 of TI; joint
Recommendation of Deferred Judgment and Probation. State will dismiss
Ct. 5.” The document was signed by Macke and her counsel but lacked a
signature line for the State and was not signed by the prosecutor. The
district court conducted a plea hearing the same morning. Defense
counsel stated on the record that the plea agreement included dismissal
of “the gun charge, in this case, as well as the recommendation—joint
recommendation of a deferred judgment to the charges” of child
endangerment. The State did not object to that description of the plea
agreement or assert different terms. The court did not ask the State to
confirm the terms of the plea agreement recited by defense counsel. The
court on the record accepted Macke’s Alford plea to the four counts of child
endangerment and ordered a PSI (presentence investigation). Within
minutes, the court entered a written order accepting the Alford plea, which
set forth an inconsistent plea agreement.
Barring any new criminal activity or violation of this order, at
sentencing the parties will recommend: The Defendant will
ask for a deferred judgement and probation. The State
reserves its recommendations until it has an opportunity
to review the PSI. The State will recommend dismissal of
Count V. On any new criminal charge or violation of this
order, established by a preponderance of evidence, the State
is not bound by this agreement.
5
This order, on a form apparently provided by the Polk County Attorney’s
Office, was not read aloud in court, nor was Macke questioned about its
terms during the plea hearing. Macke’s counsel filed no objection.
The department of correctional services completed the PSI on
April 10 and included a sentencing recommendation of “supervised
probation.” The same judge who accepted Macke’s Alford plea conducted
the sentencing hearing on April 19. Macke attended with her counsel, and
the same prosecutor represented the State. Macke’s counsel requested a
deferred judgment. When the court asked for the State’s sentencing
recommendation, the prosecutor responded by criticizing Macke’s conduct
and recommending a suspended sentence and probation, not a deferred
judgment.
As you recall, this is the case where four children were
left alone for a period of time while the defendant left the
country and went to Germany. And although there was a
superintendent of the building where the children lived asked
by the defendant to check on them, at the end of the day, they
really had no supervision. They were required to make meals,
get on the school bus, get dressed, and take care of
themselves.
The hazard to the children is immense. Aside from the
fact that it’s a dangerous world, there was no adult living in
the house that could have been available should there have
been a medical emergency, a fire, or the possibility of an
injury. It’s just a dangerous situation for children.
The children have been removed from the defendant.
They have dads who are protective. Two went to live in Texas.
Two have lived in Cedar Rapids. And their dads are very
protective of them. And it’s the State’s position that those
children are in settings where their best interests will be
watched, because of how precious they are, Your Honor.
Our position is that the defendant should receive a
suspended sentence and probation, that as a condition of
probation, and in accordance with what the PSI sets out, she
should have whatever therapy and/or counseling is available
to her through the Department of Corrections, and that she’d
agree to do — at least with the children in Cedar Rapids, that
she and her ex-husband in Cedar Rapids have agreed to
counseling for these children in a setting that would be best
6
for them. But I think she needs counseling too. Her behavior
was immature and reckless.
The State has agreed to dismiss Count V.
So, Your Honor, we’re asking that she receive a
suspended sentence and probation. I’m not arguing for
consecutive sentences, Your Honor. I think it’s okay for these
counts to run concurrently. But to do something less than
place her on probation and give a suspended sentence, I
think, would diminish the nature of this crime.
Macke’s counsel asked to “take a break for a moment” to step into
the hallway before the court resumed the hearing with a victim-impact
statement. Macke’s defense counsel never objected to the State’s
sentencing recommendation. The sentencing judge stated, “I will follow
the State’s recommendation in this circumstance” and sentenced Macke
to two-year concurrent suspended sentences and two years’ probation.
The sentencing order and judgment of conviction was entered April 19,
2018, over a year before Senate File 589 was enacted.
Macke, through new counsel, filed this direct appeal on May 14,
2018. Her appellate counsel argued that the State breached the plea
agreement by recommending a suspended sentence instead of a deferred
judgment and that Macke’s prior counsel was ineffective in failing to object
to the State’s breach of the plea agreement. We transferred the case to the
court of appeals. On March 20, 2019, a three-judge panel of the court of
appeals affirmed Macke’s convictions and sentences but preserved her
ineffective-assistance claims for postconviction relief. The court of appeals
determined the record was insufficient to resolve the ineffective-assistance
claims on direct appeal. The legislature subsequently enacted Senate File
589, which the Governor signed into law on May 16, 2019. The law went
into effect on July 1, 2019. We granted Macke’s application for further
review and ordered the parties to file supplemental briefs on whether the
new legislation governed this appeal.
7
II. Standard of Review.
“We review de novo claims of ineffective assistance of counsel arising
from the failure to object to the alleged breach of a plea agreement.” State
v. Lopez, 872 N.W.2d 159, 168 (Iowa 2015).
III. Do the Amendments to Iowa Code Sections 814.6 and 814.7
in Senate File 589 Apply to This Direct Appeal from a Judgment and
Sentence Entered Before July 1, 2019?
We must decide whether the 2019 statutory amendments to Iowa
Code sections 814.6 and 814.7 enacted in Senate File 589 govern our
review of Macke’s direct appeal from her 2018 judgment and sentence.
The parties agree that the effective date of Senate File 589 is July 1, 2019, 1
but they disagree whether its amendments circumscribe our subsequent
review of Macke’s appeal pending on that date. This is a question of
statutory interpretation.
Macke, relying on James, argues that her appeal is governed by the
statutes in effect at the time of the district court judgment at issue. 479
N.W.2d at 290. The State responds that James should be overruled. The
State, relying on federal authority, argues the amendments to those Code
provisions are “jurisdiction stripping” and, therefore, govern pending
appeals decided after July 1. We begin with the statutory text.
Iowa Code section 814.6, as amended this year, limits appeals from
guilty pleas:
1“An act of the general assembly passed at a regular session of a general assembly
shall take effect on July 1 following its passage unless a different effective date is stated
in an act of the general assembly.” Iowa Const. art. III, § 26. The parties do not contend
the enactment’s effective date of July 1, 2019, means it applies to appeals from rulings
entered previously. “A statement that a statute will become effective on a certain date
does not even arguably suggest that it has any application to conduct that occurred at
an earlier date.” Landgraf v. USI Film Prods., 511 U.S. 244, 257, 114 S. Ct. 1483, 1493
(1994).
8
1. Right of appeal is granted the defendant from:
a. A final judgment of sentence, except case of in the
following cases:
....
(3) A conviction where the defendant has pled guilty.
This subparagraph does not apply to a guilty plea for a class
“A” felony or in a case where the defendant establishes good
cause.
2019 Iowa Acts ch. 140, § 28 (to be codified at Iowa Code § 814.6(1)(a)
(2020)).
Section 814.7 as amended in Senate File 589 eliminates the ability
to pursue ineffective-assistance claims on direct appeal:
An ineffective assistance of counsel claim in a criminal
case shall be determined by filing an application for
postconviction relief pursuant to chapter 822. The claim need
not be raised on direct appeal from the criminal proceedings
in order to preserve the claim for postconviction relief
purposes, and the claim shall not be decided on direct appeal
from the criminal proceedings.
Id. § 31 (to be codified at Iowa Code § 814.7).
As noted, our long-standing precedent holds that “unless the
legislature clearly indicates otherwise, ‘statutes controlling appeals are
those that were in effect at the time the judgment or order appealed from
was rendered.’ ” James, 479 N.W.2d at 290 (quoting Ontjes, 224 Iowa at
118, 275 N.W. at 330). Roger James was an inmate found guilty of
violating prison disciplinary rules. Id. at 288. He filed an application for
postconviction relief after exhausting his administrative remedies. Id. at
288–89. The district court denied his application on June 20, 1990. Id.
at 289. At that time, “a postconviction applicant had a right of direct
appeal from adverse prison disciplinary rulings.” Id. But a statutory
amendment effective July 1, 1990, abrogated the right of direct appeal
from prison disciplinary rulings and limited such a challenge to a writ of
certiorari. Id. James filed his notice of appeal on July 16, and the State
9
moved to dismiss his appeal based on the statutory amendment, which
fits the State’s description today of a jurisdiction-stripping enactment. Id.
at 289–90. James resisted, arguing his right to appeal “became fixed at
the time of the postconviction court’s final judgments.” Id. at 290. We
agreed with James and concluded that he had “the right to direct appeal
in accordance with the pre-amended version of Iowa Code section 663A.9.”
Id.
James is controlling here and dictates the same result. Macke had
a right of direct appeal of her ineffective-assistance claim at the time of her
guilty-plea based sentence from which she appeals, and her pending
appeal is governed by the preamendment versions of Iowa Code sections
814.6 and 814.7. See id. The holding of James applies to both section
814.6 and section 814.7.
The State urges us to overrule James. Stare decisis dictates that we
decline the State’s invitation to overrule our precedent. See Book v.
Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015) (“Stare
decisis alone dictates continued adherence to our precedent absent a
compelling reason to change the law.”); Ackelson v. Manley Toy Direct,
L.L.C., 832 N.W.2d 678, 688 (Iowa 2013) (“We are slow to depart from stare
decisis and only do so under the most cogent circumstances.”). The State
has not provided us with a compelling reason to overrule James.
James honors the canons of construction codified by the legislature.
“A statute is presumed to be prospective in its operation unless expressly
made retrospective.” Iowa Code § 4.5 (2018); see also Iowa Beta Chapter
of Phi Delta Theta Fraternity v. State, 763 N.W.2d 250, 266 (Iowa 2009)
(“Generally, a newly enacted statute is presumed to apply prospectively,
unless expressly made retrospective.”). The State concedes that neither
section 814.6 nor section 814.7 are expressly retroactive.
10
The State’s position on retroactivity conflicts with Iowa Code section
4.13(1), which provides, “The . . . amendment . . . of a statute does not
affect . . . [t]he prior operation of the statute or any prior action taken
under the statute . . . [or] [a]ny . . . right . . . previously acquired . . . under
the statute.” Macke held a right to a direct appeal from her judgment of
conviction and sentence in 2018, and applying Senate File 589
retroactively to her appeal would eliminate that right, contrary to Iowa
Code section 4.13(1)(a–b). See State v. Soppe, 374 N.W.2d 649, 652–53
(Iowa 1985) (applying Iowa Code section 4.13(1) to hold that statutory
amendment enhancing punishment “could not take [away a] right” a
defendant acquired earlier); see also In re Daniel H., 678 A.2d 462, 466–
68 (Conn. 1996) (holding “the removal of a right to a direct appeal [of a
juvenile transfer order] is also a substantive change in the law” that applies
only prospectively and not retroactively to cases predating statutory
amendment).
The State contends James is no longer good law after Hannan v.
State, 732 N.W.2d 45 (Iowa 2007). We disagree. These cases are easily
harmonized: the statute in James applied only prospectively because it
eliminated a right to appeal, while the statute in Hannan applied
retroactively because it created a new remedy. “[W]e do allow a statute to
apply retroactively when the statute provides an additional remedy to an
already existing remedy or provides a remedy for an already existing loss.”
Iowa Beta Chapter, 763 N.W.2d at 267. Conversely, “we have refused to
apply a statute retrospectively when the statute eliminates or limits a
remedy. In the latter situation, we have found the statute to be
substantive rather than procedural or remedial.” Id. (citation omitted).
In Hannan, the defendant’s conviction for second-degree sexual
abuse was affirmed on direct appeal in 1999. State v. Hannan,
11
Nos. 9–312, 98–0343, 1999 WL 710813, at *1 (Iowa Ct. App. July 23,
1999). He then brought a postconviction action alleging, for the first time,
ineffective assistance of trial counsel. Hannan, 732 N.W.2d at 49. The
State argued he failed to preserve error on his ineffective-assistance claim
because he failed to bring it in his direct appeal, as our law previously
required. Id. at 50. Hannan relied on a statutory amendment enacted in
2005 that “allows a defendant to raise ineffective-assistance-of-counsel
claims for the first time in [postconviction relief] PCR proceedings.” Id.
The State argued that the 2005 statutory amendment did not benefit
Hannan because the criminal judgment he challenged “occurred long
before the effective date of the statute.” Id. Hannan argued the new
statute controlled his appeal from the PCR judgment entered after the new
statute’s effective date. Id. at 51. We acknowledged the James rule that
“statutes controlling appeals are those that were in effect at the time the
judgment or order appealed from was rendered.” Id. at 50 (quoting Wal-
Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003)). We did
not retreat from the James rule but, instead, decided Hannan by applying
the new remedy enacted in 2005 retroactively.
The State argues the amendment to section 814.7 merely changes
the forum for ineffective-assistance claims, without eliminating the right
to relief altogether. This statutory change, however, results in significant
disadvantages to some defendants and can mean the difference between
freedom and incarceration while the case proceeds. A direct appeal is
typically a much faster vehicle for relief and allows for release on appeal
bond for certain offenses. See Iowa Code § 811.5 (governing appeal bonds).
By contrast, postconviction proceedings often take much longer while
defendants remain incarcerated without a right to release on bond.
Summage v. State, 579 N.W.2d 821, 823 (Iowa 1998) (per curiam) (holding
12
appeal bonds are not available in postconviction proceedings); see also
State v. Brubaker, 805 N.W.2d 164, 170–71 (Iowa 2011) (“[P]reserving
ineffective-assistance-of-counsel claims that can be resolved on direct
appeal wastes time and resources.” (quoting State v. Truesdell, 679 N.W.2d
611, 616 (Iowa 2004)).
The State also argues that applying the 2019 statutory amendments
to pending appeals furthers the legislative goals of curtailing frivolous
appeals and ensuring ineffective-assistance-of-counsel claims are heard in
a forum where the necessary record can be developed. But we must apply
the new enactment as written, not by what the legislature might have said
or intended. Missing from the amendments to Iowa Code sections 814.6
and 814.7 is any language stating the provisions apply retroactively to
cases pending on direct appeal on July 1, 2019, or to guilty pleas accepted
before that date. The clear indication of intent for retroactive application
must be found in the text of the statute; legislative history is no substitute.
See Landgraf v. USI Film Prods., 511 U.S. 244, 288, 114 S. Ct. 1522, 1522
(1994) (Scalia, J., concurring in the judgment) (“No legislative history can
[supply the clear statement required for retroactive application], only the
text of the statute.”).
We presume the legislature is aware of our cases interpreting its
statutes and the rules established within them. See Ackelson, 832 N.W.2d
at 688. We made clear in James that unless the legislature clearly provides
otherwise, an enactment restricting a right to appeal will only apply
prospectively. If the legislature wanted the amendments to Iowa Code
sections 814.6 and 814.7 to apply retroactively, it had to say so expressly.
It did not. See Brewer v. Iowa Dist. Ct., 395 N.W.2d 841, 843 (Iowa 1986)
(“If it had been the purpose of the 1984 amendment [adding a three-year
statute of limitations to the postconviction-relief statute] to abate pending
13
proceedings as well as to limit the time for commencing new proceedings,
we believe the legislature would have made that intention clear.”). Given
the absence of an express legislative directive to apply the amended
sections 814.6 and 814.7 to pending appeals, we decline to change the
rules after the game is played.
The State turns to federal law to argue we should revisit James in
light of a discussion in the subsequent United States Supreme Court
Landgraf decision, noting federal courts have “regularly applied
intervening statutes conferring or ousting jurisdiction, whether or not
jurisdiction lay when the underlying conduct occurred or when suit was
filed.” 511 U.S. 244, 274, 114 S. Ct. 1483, 1501–02 (1994) (majority
opinion) (citing cases dating back to 1870). Justice Scalia’s concurrence
elaborated, “[T]he purpose of provisions conferring or eliminating
jurisdiction is to permit or forbid the exercise of judicial power—so that
the relevant event for retroactivity purposes is the moment at which that
power is sought to be exercised.” Id. at 293, 114 S. Ct. at 1525 (Scalia, J.,
concurring in the judgment). Landgraf did not actually interpret a
jurisdiction-stripping statute. Rather, Landgraf held that a 1991
amendment adding money damage remedies and a right to a jury trial in
Title VII of the Civil Rights Act did not apply to cases arising before its
enactment. Id. at 283, 286, 114 S. Ct. at 1506, 1508 (majority opinion).
The State contends the 2019 amendments to Iowa Code sections
814.6 and 814.7 are jurisdiction-stripping and govern appellate
adjudications after July 1 of this year regardless of the date of the district
court judgment or guilty plea at issue. The State cites no Iowa precedent
following this federal jurisdiction-stripping canon, and the State’s effort to
apply it here conflicts with James and our prior precedent. See Frink v.
Clark, 226 Iowa 1012, 1017, 285 N.W. 681, 684 (1939) (“This court has
14
expressly recognized that, after the commencement of an action, the
question of jurisdiction is purely judicial and a legislative act, which
attempts to deprive the court of jurisdiction, is unconstitutional.”);
McSurely v. McGraw, 140 Iowa 163, 167, 118 N.W. 415, 418 (1908) (“When
action is once commenced the question of jurisdiction s purely a judicial
one, and the Legislature should not attempt to usurp the functions of the
judiciary by such an act as is now under consideration. These principles
are so fundamental as scarcely to need the citation of authorities in their
support.”). Under James, the relevant “event” for determining the
governing law is the entry of the district court judgment being appealed,
not the appellate court’s adjudication. 479 N.W.2d at 290. In any event,
the State exaggerates the force of the jurisdiction-stripping canon.
More recently, in Hamdan v. Rumsfeld, the Supreme Court
emphasized that jurisdiction-stripping provisions do not necessarily
“apply to cases pending at the time of their enactment.” 548 U.S. 557,
577, 126 S. Ct. 2749, 2765 (2006). “ ‘[N]ormal rules of construction,’
including a contextual reading of the statutory language, may dictate
otherwise.” Id. (alteration in original) (quoting Lindh v. Murphy, 521 U.S.
320, 326, 117 S. Ct. 2059, 2063 (1997)). Unlike Landgraf, Hamdan
actually interpreted a jurisdiction-stripping statute, the Detainee
Treatment Act (DTA). Salim Ahmed Hamdan, a Yemeni national, was
captured during hostilities with the Taliban in Afghanistan and
transported to Guantanamo Bay in 2002. Id. at 566, 126 S. Ct. at 2759.
His petition for a writ of certiorari was pending in the Supreme Court when
the DTA was signed into law in 2006, and the United States moved to
dismiss his petition on grounds the DTA deprived the Court of jurisdiction.
Id. at 572, 126 S. Ct. at 2762. The Court denied the motion, noting the
“presumption” that a jurisdiction-stripping statute applies to pending
15
appeals “is more accurately viewed as the nonapplication of another
presumption . . . against retroactivity—in certain limited circumstances”
such as when “the change in the law does not ‘impair rights a party
possessed when he acted.’ ” Id. at 576–77, 126 S. Ct. at 2764–65 (quoting
Landgraf, 511 U.S. at 280, 114 S. Ct. at 1505). As noted, the amendments
to Iowa Code sections 814.6 and 814.7, if applicable, would impair Macke’s
existing right to a direct appeal of her guilty plea and ineffective-
assistance-of-counsel claims, such that the presumption against
retroactivity applies.
The Hamdan Court rejected retroactive application of the DTA under
a different canon, the “familiar principle of statutory construction . . . that
a negative inference may be drawn from the exclusion of language from
one statutory provision that is included in other provisions of the same
statute.” Id. at 578, 126 S. Ct. at 2765. Noting other provisions of the
DTA were expressly made applicable to pending cases, the omission of
such language in the jurisdiction-stripping section meant it did not apply
to pending appeals. Id. at 579–80, 126 S. Ct. at 2766. 2
We apply the same canon here and reach the same result. We, too,
have recognized that legislative intent is expressed through selective
placement of statutory terms. Oyens Feed & Supply, Inc. v. Primebank,
808 N.W.2d 186, 193 (Iowa 2011). As such, when the legislature includes
particular language in some sections of a statute but omits it in others, we
presume the legislature acted intentionally. Id. In other sections of Senate
File 589, the legislature expressly states the section applies prospectively
2The State cites no contrary authority decided after Hamdan (and we found none)
applying the jurisdiction-stripping canon to hold that a statutory amendment governs
pending appeals when the provision at issue lacks language requiring that result while
other provisions in the same amendment do contain an express statement of retroactivity
or applicability to pending cases.
16
or retrospectively or both. Compare 2019 Iowa Acts ch. 140, § 2 (to be
codified at Iowa Code § 901C.3(7) (2020)) (“This section applies to a
misdemeanor conviction that occurred prior to, on, or after July 1, 2019.”),
id. § 8 (to be codified at Iowa Code § 902.12(2A)) (“A person serving a
sentence for a conviction for robbery in the first degree in violation of
section 711.2 for a conviction that occurs on or after July 1, 2018, shall
be denied parole or work release until the person has served between one-
half and seven-tenths of the maximum term of the person’s sentence as
determined under section 901.11, subsection 2A.”), and id. § 39 (to be
codified at Iowa Code § 902.12(4)) (“A person serving a sentence for a
conviction for arson in the first degree in violation of section 712.2 that
occurs on or after July 1, 2019, shall be denied parole or work release until
the person has served between one-half and seven-tenths of the maximum
term of the person’s sentence as determined under section 901.11,
subsection 4.”), with id. § 28 (to be codified at Iowa Code § 814.6)
(providing no specific effective date), and id. § 31 (to be codified at Iowa
Code § 814.7) (same). We conclude the absence of retroactivity language
in sections 814.6 and 814.7 means those provisions apply only
prospectively and do not apply to cases pending on July 1, 2019.
Our decision in James placed the legislature on notice that it must
clearly specify when a provision limiting a right to appeal is to apply to
pending cases. James, 479 N.W.2d at 290. As the Landgraf Court
observed,
Requiring clear intent assures that Congress itself has
affirmatively considered the potential unfairness of retroactive
application and determined that it is an acceptable price to
pay for the countervailing benefits. Such a requirement
allocates to Congress responsibility for fundamental policy
judgments concerning the temporal reach of statutes, and has
the additional virtues of giving legislators a predictable
background rule against which to legislate.
17
511 U.S. at 272–73, 114 S. Ct. at 1501. We agree.
Because we hold Senate File 589’s amendments to Iowa Code
sections 814.6 and 814.7 do not govern this appeal, we do not reach
Macke’s constitutional claim that retroactive application of those laws
would violate state and federal due process. Nor do we reach her argument
that the breach of her plea agreement constituted “good cause” allowing
an appeal of her guilty plea under section 814.6, as amended.
IV. Did the State Breach the Plea Agreement?
We now address the merits of Macke’s appeal. “[B]ecause a plea
agreement requires a defendant to waive fundamental rights, we are
compelled to hold prosecutors and courts to the most meticulous
standards of both promise and performance.” Lopez, 872 N.W.2d at 171
(quoting State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008)). We must
decide whether the State’s sentencing recommendation breached the
parties’ plea agreement. If so, Macke’s counsel was ineffective for failing
to object to the breach, we presume prejudice, and her remedy is to be
“resentence[d] by a different judge, with the prosecutor obligated to honor
the plea agreement and sentencing recommendation.” Id. at 180–81. Our
threshold question is whether the record in this direct appeal is sufficient
to resolve that question. The court of appeals concluded the record was
insufficient and preserved Macke’s ineffective-assistance-of-counsel claim
for postconviction proceedings. On our de novo review, we find the record
is sufficient under the rules governing guilty pleas. We find the parties’
plea agreement included a term to jointly recommend a deferred judgment,
and the State breached that agreement, requiring a remand for
resentencing.
18
Macke’s petition to plead guilty (Alford), signed by Macke and her
counsel, stated, “The plea agreement is Alford plea to Counts 1-4 of [Trial
Information]; joint Recommendation of Deferred Judgment and Probation.
State will dismiss Ct. 5 [the gun charge].” Macke’s counsel during the plea
hearing represented to the court on the record that the plea agreement
was for dismissal of “the gun charge in this case, as well as the
recommendation—joint recommendation of a deferred judgment to the
charges” of child endangerment. The State did not object to that
description of the plea agreement or assert different terms, nor did the
court ask the State to confirm the terms of the plea agreement in open
court. The court accepted Macke’s plea, but within minutes issued a
written order on a form apparently provided by the Polk County Attorney’s
Office reciting a plea agreement with different terms: “The Defendant will
ask for a deferred judgement and probation. The State reserves its
recommendations until it has an opportunity to review the PSI.” The
written order, however, was not read or shown to Macke during the
hearing. So what were the terms of the parties’ plea agreement, if any, as
to a sentencing recommendation?
We view the record in light of the governing rules. Iowa Rule of
Criminal Procedure 2.10(2) provides, “If a plea agreement has been
reached by the parties the court shall require the disclosure of the
agreement in open court at the time the plea is offered.” Accord Iowa R.
Crim. P. 2.8(2)(c) (“The terms of any plea agreement shall be disclosed of
record as provided in rule 2.10(2).”). The purpose of requiring disclosure
“in open court” is to allow a colloquy to ensure that the defendant’s plea is
knowing, intelligent, and voluntary. Id. r. 2.8(2)(b); State v. Loye, 670
N.W.2d 141, 150–51 (Iowa 2003). The controlling terms, therefore, are
those described on the record during the plea hearing rather than the
19
conflicting terms of the written order because the written order was never
reviewed with Macke in open court. See Loye, 670 N.W.2d at 153–54 (“A
written plea agreement is not a substitute for the in-court colloquy
required by rule 2.8(2)(b) in felony cases.”).
In Loye, the court accepted the defendant’s guilty plea to multiple
offenses and transferred her case to drug court for supervision. Id. at 144.
She was unsuccessful in drug court, and the court then imposed
consecutive prison sentences totaling sixty-four and one-half years. Id.
She appealed her sentence, and the State contended she had waived her
right to appeal in her plea agreement. Id. at 147. We rejected the State’s
waiver argument because the plea agreement was not in the record and
was not reviewed with Loye in open court during her guilty plea hearing,
as required by rule 2.8(2)(b). Id. at 153–54; see also Baker v. United States,
781 F.2d 85, 90 (6th Cir. 1986) (“It is impossible for a trial judge to properly
administer a plea agreement if it consists of secret terms known only to
the parties.”). The record of the proceedings in open court controls our
analysis, not any off-the-record side deals.
Here, we lack an affirmative statement by the prosecutor on the
record that the State agreed to jointly recommend a deferred judgment and
probation for Macke. We urge judges conducting plea hearings to ensure
that counsel for the defendant and the State orally confirm the terms of
any plea agreement in open court. In any event, on our de novo review,
we infer the State’s acceptance from the prosecutor’s silence when Macke’s
counsel recited their plea agreement with that term in open court. Macke
entered her Alford plea with the express understanding that the State
would jointly recommend a deferred judgment, and the court accepted her
plea on that record. If defense counsel misstated the terms of the plea
agreement, the prosecutor should have said so in open court. We are
20
unwilling to assume the plea agreement was later modified or waived off
the record. To be enforceable against the defendant, a change in the terms
of the plea agreement must be made in open court with a colloquy to
confirm the defendant’s guilty plea is knowing and voluntary.
The State at the sentencing hearing recommended a two-year prison
sentence, suspended. The State thereby breached the parties’ plea
agreement to jointly recommend a deferred judgment and probation.
Defense counsel “was duty-bound to object.” Lopez, 872 N.W.2d at 169.
His failure to object constitutes ineffective assistance of counsel, with
prejudice to Macke presumed. Id. at 169–70. Macke requests
resentencing. We have noted that “violations of either the terms or the
spirit of the agreement require reversal of the conviction or vacation of the
sentence.” Id. at 171 (quoting Bearse, 748 N.W.2d at 215). We remand
the case for resentencing by a different judge. See id. at 181. On remand,
the prosecutor is required to honor the plea agreement by jointly
recommending a deferred judgment. See id.
V. Disposition.
For the foregoing reasons, we vacate the decision of the court of
appeals. We affirm Macke’s conviction but vacate her sentence and
remand the case for resentencing before a different judge consistent with
this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE
REMANDED FOR RESENTENCING WITH INSTRUCTIONS.
All justices concur except Mansfield, J., who concurs in part and
dissents in part, and McDonald, J., who dissents.
21
18–0839, State v. Macke
MANSFIELD, Justice (concurring in part and dissenting in part).
I concur in Division III of the court’s opinion. I dissent from Division
IV. I believe the record is inadequate to determine what the parties’ plea
agreement was.
The parties apparently reached a plea agreement. From the record
it is unclear whether it involved a joint recommendation of a deferred
judgment, which is what defense counsel said in the petition to plead guilty
and in open court at the change of plea hearing; or whether the State had
the right to make an independent sentencing recommendation, which is
what the order entered at the plea hearing stated. I note that the plea
hearing commenced at 9:06 a.m. and concluded at 9:12 a.m. on
February 26, 2018, whereas the order was efiled at 9:11 a.m. on the 26th.
In other words, it appears the court was finalizing the order during the
change of plea hearing itself. And they contradict each other.
Defense counsel never objected to the court’s order. Moreover, a
fairly lengthy sentencing proceeding occurred nearly two months later on
April 19. The proceeding took approximately forty minutes of court time,
and there was considerable discussion and debate regarding the sentence.
Yet defense counsel—while asking for a deferred judgment on behalf of his
client—never claimed there was an agreement to jointly recommend a
deferred judgment.
Reasonable people can wonder, therefore, what the deal was.
Two possibilities exist here. One is that the parties actually had an
agreement to jointly recommend a deferred judgment. In that event, the
State breached the plea agreement and it should be enforced.
The other possibility, however, is that the parties’ plea agreement
did not include a joint sentencing recommendation. In that event, we
22
should not enforce something the parties didn’t actually agree to. Instead,
because the colloquy on February 26 was defective if that was the
agreement, the plea should be set aside.
The majority confuses what is a necessary condition of court
approval of a plea agreement (i.e., recital of the plea agreement in open
court on the record) with what constitutes the actual agreement. Whatever
the parties agree to has to be recited. However, the converse is not always
true: whatever a party says in open court is not necessarily the agreement.
Something that one party recited but that wasn’t actually agreed to should
not be controlling. Plea bargains are akin to contracts. Rhoades v. State,
880 N.W.2d 431, 449 (Iowa 2016) (“A plea bargain also may be regarded
as a contract where both sides ordinarily obtain a benefit.”). Would anyone
say it is clear on this record what the parties’ contract was?
I would reverse Macke’s conviction and sentence and remand for the
court to conduct a hearing to determine whether there was an agreement
to jointly recommend a deferred judgment. If so, the agreement should be
enforced and there should be a resentencing before a different judge on
that basis. If not, there was no valid plea and the parties should be
restored to their pre-plea positions.
For the foregoing reasons, I respectfully concur in part and dissent
in part.
23
#18–0839, State v. Macke
McDONALD, Justice (dissenting).
Effective July 1, 2019, this court lost the authority to decide a claim
of ineffective assistance of counsel on direct appeal. See 2019 Iowa Acts
ch. 140, § 31 (to be codified at Iowa Code § 814.7 (2020)) (providing “[a]n
ineffective assistance of counsel claim . . . shall not be decided on direct
appeal from the criminal proceedings”). Nonetheless, in this direct appeal,
the majority decides the defendant’s claim of ineffective assistance of
counsel after the effective date of the statute. I respectfully dissent.
I.
Whether a statute applies retrospectively, prospectively, or both is
simply a question regarding the correct temporal application of a statute.
See Landgraf v. USI Film Prods., 511 U.S. 244, 291, 114 S. Ct. 1522, 1524
(1994) (Scalia, J., concurring in the judgment) (stating this is a “mundane
question” regarding the “temporal application of a statute”). The
determination of the correct temporal application of a statute is three-part
inquiry.
First, the court must determine whether application of a statute is
in fact retrospective. Application of a statute is in fact retrospective when
the statute applies a new rule, standard, or consequence to a prior act or
omission. See Frideres v. Schiltz, 540 N.W.2d 261, 264 (Iowa 1995) (“A law
is retroactive if it affects acts or facts which occurred, or rights which
accrued, before the law came into force.”). The prior act or omission is the
event of legal consequence “that the rule regulates.” Landgraf, 511 U.S.
at 291, 114 S. Ct. at 1524. In other words, the event of legal consequence
is the specific conduct regulated in the statute.
Second, if the court determines operation of a statute is in fact
retrospective, the court must determine whether the statute should be
24
applied retrospectively. This is straight-forward inquiry. “Our legislature
has provided a statutory general rule that determines the applicability of
its laws.” Frideres, 540 N.W.2d at 264. Iowa Code section 4.5 (2018)
provides “[a] statute is presumed to be prospective in its operation unless
expressly made retrospective.” In my view, this requires an assessment of
statutory text to determine whether there is an express statement making
the statute retrospective. End of inquiry.
Third, if the court determines the text of the statute authorizes
retrospective application of the statute, the court must then determine
whether any other rule of law prohibits retrospective application of the
statute. For example, the defendant might argue the retrospective
application of a statute violated her right to due process or violates the
Ex Post Facto Clause.
II.
At issue is the temporal application of amendments to Iowa Code
sections 814.6 and 814.7 enacted in Senate File 589 (the Omnibus Crime
Bill). I address each in turn.
A.
Iowa Code section 814.6 governs the criminal defendant’s right to
appeal. At the time judgment of sentence was entered in this case, section
814.6 provided, with minor exceptions not applicable here, a defendant
was authorized to pursue a direct appeal from any final judgment of
sentence. See Iowa Code § 814.6(1)(a) (“Right of appeal is granted the
defendant from . . . [a] final judgment of sentence . . . .”). The Omnibus
Crime Bill changed this provision. The statute now provides, with
exceptions not applicable here, a criminal defendant does not have an
appeal as a matter of right from judgment of sentence if the judgment of
sentence was entered pursuant to a conviction following a guilty plea. See
25
2019 Iowa Acts ch. 140, § 28 (to be codified at Iowa Code § 814.6(1)(a)(3)
(2020)).
In determining whether this amendment governs the defendant’s
right to appeal in this case, the first inquiry is whether application of the
amendment is in fact retrospective. It seems clear to me it is. The event
of legal consequence is the entry of judgment of sentence. Judgment of
sentence was entered in April 2018. The defendant timely appealed as a
matter of right from the entry of judgment of sentence. The application of
the amendment to an event of consequence antedating the effective date
of the amendment is in fact a retrospective application of the statute.
Having concluded the application of the amendment to this case is
in fact retrospective, the second inquiry is whether the legislature
authorized retrospective application of the statute. See Iowa Code § 4.5
(2018). Here, there is no statutory language authorizing the retrospective
application of the statute. Thus, the statute operates only prospectively
and cannot change the legal consequence of the entry of judgment and
sentence. See id. Because the text of the statute does not provide for
retrospective application, there is no need to proceed to the third step of
the test. I thus concur in the majority’s holding that the defendant can
pursue this appeal as a matter of right.
B.
Iowa Code section 814.7 governs the presentation and disposition of
a claim of ineffective assistance of counsel on direct appeal. At the time
the defendant filed her notice of appeal in this case, the Code authorized
the defendant to present a claim of ineffective assistance of counsel. See
Iowa Code § 814.7(2) (“A party may, but is not required to, raise an
ineffective assistance claim on direct appeal from the criminal proceedings
. . . .”). The Code also authorized this court to “decide the claim” or
26
“preserve the claim for determination” in postconviction-relief proceedings.
Id. § 814.7(3). The Omnibus Crime Bill changed this provision. The
amendment restricted this court’s authority to decide claims of ineffective
assistance of counsel on direct appeal, providing “the claim shall not be
decided on direct appeal from the criminal proceedings.” 2019 Iowa Acts
ch. 140, § 31 (to be codified at Iowa Code § 814.7 (2020)).
In determining whether this amendment governs the defendant’s
right to bring this claim in this case, the first inquiry is whether application
of the amendment is in fact retrospective. With respect to this
amendment, the event of legal consequence is this court’s exercise of
judicial power—specifically, this court’s authority to decide a claim of
ineffective assistance of counsel on direct appeal. As Justice Scalia
explained in Landgraf, applying a statute to prevent the exercise of judicial
power after the effective date of a statute is in fact a prospective application
of a statute:
Our jurisdiction cases are explained, I think, by the fact that
the purpose of provisions conferring or eliminating
jurisdiction is to permit or forbid the exercise of judicial
power—so that the relevant event for retroactivity purposes is
the moment at which that power is sought to be exercised.
Thus, applying a jurisdiction-eliminating statute to undo past
judicial action would be applying it retroactively; but applying
it to prevent any judicial action after the statute takes effect
is applying it prospectively.
Landgraf, 511 U.S. at 293, 114 S. Ct. at 1525.
While this case does not involve the court’s jurisdiction, it does
involve the court’s authority to exercise judicial power. Thus, properly
understood, application of the amendment is not in fact a retrospective
application of the statute. Instead, it is a prospective application of the
statute to this court’s exercise of judicial power occurring after the effective
date of the amendment. See Republic Nat’l Bank of Miami v. United States,
27
506 U.S. 80, 100, 113 S. Ct. 554, 565 (1992) (Thomas, J., concurring in
part and concurring in the judgment) (“But not every application of a new
statute to a pending case will produce a ‘retroactive effect.’ ‘[W]hether a
particular application is retroactive’ will ‘depen[d] upon what one considers
to be the determinative event by which retroactivity or prospectivity is to
be calculated.’ ” (alterations in original) (quoting Kaiser Aluminum & Chem.
Corp. v. Bonjorno, 494 U.S. 827, 857–58, 857 n.3, 110 S. Ct. 1570, 1587–
88, 1588 n.3 (1990) (Scalia, J., concurring in the judgment))); State v.
Blank, 930 P.2d 1213, 1223 (Wash. 1997) (en banc) (“A statute operates
prospectively when the precipitating event for [its] application . . . occurs
after the effective date of the statute . . . .” (alterations in original) (quoting
Aetna Life Ins. v. Wash. Life & Disability Ins. Guar. Ass’n, 520 P.2d 162,
170 (Wash. 1974) (en banc))). Because this amendment does not in fact
operate retrospectively, there is no need to analyze the question under the
second and third parts of the test.
The majority opinion’s conclusion that James v. State, 479 N.W.2d
287 (Iowa 1991), precludes application of the amendment to section 814.7
is a misreading of James. At issue in James was whether the applicants
had the right to appeal from prison disciplinary rulings. See id. at 290.
“The statute controlling appeals from prison disciplinary rulings which
was in effect on that date provided for a right of direct appeal.” Id. The
court held “[b]ecause statutes controlling appeals are those that were in
effect at the time the judgment or order appealed from was rendered,” the
applicants had the right to appeal. Id. James was limited to the question
of whether the applicants had the ability to pursue an appeal as a matter
of right. The event of legal consequence in that case was the entry of the
rulings in the prison disciplinary cases. There is nothing in James that
addresses the question presented in this case—what statute controls the
28
exercise of judicial power at the time the power is exercised. James is
simply inapplicable to the question regarding the correct temporal
application of the amendment to section 814.7.
Contrary to the majority’s interpretation of James, the general rule
is that statutes eliminating or restricting the exercise of judicial power after
the date of enactment do not raise concerns regarding retroactivity. See,
e.g., St. Cyr v. INS, 229 F.3d 406, 420 (2d Cir. 2000), aff’d, 533 U.S. 289,
290–91, 121 S. Ct. 2271, 2274–75 (2001) (“It is true that a change in law
that ‘speak[s] to the power of the court rather than to the rights or
obligations of the parties’ may be applied in a case without raising
concerns that it is impermissibly retroactive.” (alteration in original)
(quoting Landgraf v. USI Film Prods., 511 U.S. 244, 274, 114 S. Ct. 1483,
1502 (1994) (majority opinion))); Turkhan v. Perryman, 188 F.3d 814, 826
(7th Cir. 1999) (stating present law applies because it “speak[s] to the
power of the court” (quoting Landgraf, 511 U.S. at 274, 114 S. Ct. at
1502)); In re Resolution Tr. Corp., 888 F.2d 57, 58 (8th Cir. 1989) (“[T]he
general rule is otherwise with respect to new enactments changing
procedural or jurisdictional rules. If a case is still pending when the new
statute is passed, new procedural or jurisdictional rules will usually be
applied to it.”); Henry v. Ashcroft, 175 F. Supp. 2d 688, 693 (S.D.N.Y. 2001)
(stating that statutes “that ‘speak to the power of the court’ . . . generally
do not raise concerns about retroactivity” (quoting Landgraf, 511 U.S. at
274, 114 S. Ct. at 1502)); DeGroot v. DeGroot, 939 A.2d 664, 670 n.5 (D.C.
2008) (stating “a court may apply new laws to pending cases when those
laws ‘speak to the power of the court’ ” (quoting Coto v. Citibank FSB, 912
A.2d 562, 566 n.4 (D.C. 2006)); State v. Barren, 279 P.3d 182, 185 (Nev.
2012) (stating present law governs and that “a retroactivity analysis is
unnecessary because [it] is a jurisdictional statute”); Univ. of Texas Sw.
29
Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez-Arancibia, 324
S.W.3d 544, 548 (Tex. 2010) (stating that statutes that speak to the power
of the court “may be applied to cases pending at the time of enactment”).
Because the presumption against the retrospective application of a
statute cannot work to bar the prospective application of a statute affecting
this court’s authority, I respectfully dissent from the majority’s decision to
resolve the defendant’s claim of ineffective assistance of counsel in this
direct appeal. The amendment to the statute clearly prohibits this exercise
of judicial authority after July 1, 2019. I would follow the plain language
of the statute and preserve the defendant’s claim of ineffective assistance
of counsel for postconviction-relief proceedings.
III.
The three-part test set forth and applied above is not explicitly set
forth in our caselaw. However, our caselaw in this area is a Rorschach
test of immaterial distinctions, unhelpful declarations, and result-oriented
decisions. The majority opinion does its best to defend the old doctrine,
but when the presumption against the retrospective application of a
statute can be used to bar the prospective application of a statute, it is
time to reconsider the doctrine.
The primary deficiency in our caselaw (and the majority opinion) is
it ignores the initial inquiry of whether a statute is in fact retrospective.
Instead of creating workable doctrine and corresponding vocabulary to
resolve the threshold question of when the operation of statute is in fact
retrospective, our caselaw has instead substituted a complex taxonomy
and corresponding rules to determine when a statute should be applied
retrospectively. Except these are wholly separate questions; substituting
one for the other merely confuses the issues. See Landgraf, 511 U.S. at
291–92, 114 S. Ct. at 1524 (Scalia, J., concurring in the judgment) (“The
30
critical issue, I think, is not whether the rule affects ‘vested rights,’ or
governs substance or procedure, but rather what is the relevant activity
that the rule regulates.”).
In addition to confusing the issues, the taxonomy and rules are
opaque and largely unworkable in any meaningful sense. Our cases have
identified at least five different categories of statutes: remedial, procedural,
substantive, curative, and emergency. See Iowa Beta Chapter of Phi Delta
Theta Fraternity v. State, 763 N.W.2d 250, 266 (Iowa 2009) (“In the absence
of a legislative declaration that the statute applies retrospectively, the
second step of the analysis is to determine whether the statute is
procedural, remedial, or substantive.”); Bd. of Trs. of Mun. Fire & Police Ret.
Sys. v. City of West Des Moines, 587 N.W.2d 227, 230 n.4 (Iowa 1998) (“We
have also determined curative legislation or emergency legislation may be
given retrospective application.”). Depending upon the categorization of
the statute, our caselaw provides different rules, exceptions, and
exceptions to exceptions that govern the temporal application of the
statute.
Take, for example, remedial statutes. “A remedial statute intends to
correct ‘existing law or redress an existing grievance.’ ” Iowa Beta Chapter,
763 N.W.2d at 266 (quoting Baldwin v. City of Waterloo, 372 N.W.2d 486,
491 (Iowa 1985)). A remedial statute is one which “regulates conduct for
the public good.” Iowa Comprehensive Petrol. Underground Storage Tank
Fund Bd. v. Shell Oil Co., 606 N.W.2d 370, 375 (Iowa 2000).
[It] affords a private remedy to a person injured by a wrongful
act, corrects an existing law or redresses an existing
grievance, gives a party a mode of remedy for a wrong where
none or a different remedy existed, or remedies defects in the
common law and in civil jurisprudence generally.
31
Bd. of Trs. of Mun. Fire & Police Ret. Sys., 587 N.W.2d at 231. Our caselaw
sets forth “a three-part test to determine” whether the legislature intended
retrospective or prospective application of a remedial statute. Anderson
Fin. Servs., LLC v. Miller, 769 N.W.2d 575, 579 (Iowa 2009); Emmet Cty.
State Bank v. Reutter, 439 N.W.2d 651, 654 (Iowa 1989).
First, we look to the language of the new legislation; second,
we consider the evil to be remedied; and third, we consider
whether there was any previously existing statute governing
or limiting the mischief which the new legislation was
intended to remedy.
Iowa Comprehensive Petrol., 606 N.W.2d at 375 (quoting Emmet Cty. State
Bank, 439 N.W.2d at 651). Depending upon how the court assesses those
three factors, our cases generally allow retrospective application of a
remedial statute. See Iowa Beta Chapter, 763 N.W.2d at 267 (“[W]e do
allow a statute to apply retrospectively when the statute provides an
additional remedy to an already existing remedy or provides a remedy for
an already existing loss . . . .”). Except if the remedial statute eliminates
a remedy. See id. (“[W]e have refused to apply a statute retrospectively
when the statute eliminates or limits a remedy.”). In that case, our caselaw
simply reclassifies as substantive what it had previously classified as
“procedural” or “remedial.” Groesbeck v. Napier, 275 N.W.2d 388, 390–91
(Iowa 1979) (en banc) (classifying a statute as substantive because it
eliminated a remedy). Why does the reclassification matter? Because
substantive statutes are not applied retrospectively. See Vinson v. Linn-
Mar Cmty. Sch. Dist., 360 N.W.2d 108, 121 (Iowa 1984) (holding a statute
was substantive because it took away a right of recovery and holding the
statute thus could not be applied retrospectively).
I need not discuss any of the other categories or corresponding rules
to flesh out the issue. The rules governing the temporal application of the
32
additional categories of statutes are equally opaque. The main point here
is the categorical scheme is subject to numerous, apparent shortcomings.
First, the categorical scheme is contrary to section 4.5 of the Code,
which provides a statute shall have prospective operation only unless the
legislature expressly provides to the contrary. Nowhere does the Code
provide for the categorical scheme set forth in our caselaw.
Second, the categorical scheme is in tension with our caselaw, which
provides legislative intent controls. See, e.g., Dindinger v. Allsteel, Inc., 860
N.W.2d 557, 563 (Iowa 2015) (“It is well established that a statute is
presumed to be prospective only unless expressly made retrospective.”
(quoting Anderson Fin. Servs., 769 N.W.2d at 578)); Iowa Comprehensive
Petrol., 606 N.W.2d at 375 (“Absent an expressed indication to the
contrary, statutes are generally presumed to apply prospectively.”); Emmet
Cty. State Bank, 439 N.W.2d at 654 (“The determination instead boils
down to whether the legislature intended to give the amendment here
retrospective or prospective application.”); Barad v. Jefferson County, 178
N.W.2d 376, 378 (Iowa 1970) (“The question of retrospectivity is one of
legislative intent. Where the legislature has clearly expressed its intent we
do not resort to rules of statutory construction.” (citation omitted)).
Third, our categorical approach is a rhetorical device to justify
results-oriented decisions rather than an analytical device to actually
decide cases. The classification of any statute as remedial, procedural,
substantive, curative, or emergency is largely guesswork. While there
might be straight-forward cases at either end of the spectrum, for the great
number of cases, the classification is likely to turn on the court’s whim.
For example, as noted above, our cases specifically state that a remedial
statute should be reclassified as a substantive statute if the statute
eliminates a remedy. That exception seems wholly arbitrary to me. We
33
have an adversarial legal system. Any statute that works a debit in the
ledger of one party puts a credit in the ledger of the adverse party. It is
thus unclear to me why the elimination of a remedy makes a remedial
statute substantive but the addition of a remedy keeps a remedial statute
remedial. “The seemingly random exceptions to the Court’s ‘vested rights’
(substance-vs.-procedure) criterion must be made, I suggest, because that
criterion is fundamentally wrong.” Landgraf, 511 U.S. at 291, 114 S. Ct.
at 1524.
Because of the deficiencies in our existing caselaw, I would move
away from the categorical distinctions and instead adopt the three-part
test set forth in this opinion.
IV.
For these reasons, I respectfully dissent.