State v. Sylvester , 1994 Iowa Sup. LEXIS 114 ( 1994 )

SNELL, Justice

(dissenting).

I respectfully dissent.

The trial court was right in applying the law as decided by our court one hundred and one years ago and reaffirmed by our court as recently as forty years ago. It is for the legislature to enact the substantive criminal law. The theft statute, Iowa Code section 714.1, has not been changed by the legislature in all these years since our interpretation that the statute does not criminalize the misappropriation of partnership assets by a partner. The majority’s newly found crime is an unwarranted excursion into the legislative domain. In so doing it also violates the due process rights of the defendant. I would affirm the trial court’s dismissal of the second-degree theft charges.

To justify its finding that defendant’s acts are now included in our theft statute, although we have said they were not, the majority reaches outside the definition of theft in section 714.1 to analyze the Uniform Partnership Act in chapter 486. Nothing in the theft statute definition now is different in substance from that interpreted by us in Gary v. Northwestern Masonic Aid Association, 87 Iowa 25, 53 N.W. 1086, 1087-88 (1893), and in State v. Quinn, 245 Iowa 846, 849, 64 N.W.2d 323, 324 (1954). There is nothing in the theft statute that refers to the Uniform Partnership Act, enacted in 1973, or to suggest that it has become a part of the criminal code. Nevertheless, it is grafted onto the theft definition by the majority as a vehicle for changing the substantive law, without benefit of a change in the theft definition itself.

Other state courts have refused to adopt the reasoning that the Uniform Partnership Act changes the meaning of theft statutes. For example, the appellate court in Washington, in State v. Birch, 36 Wash.App. 405, 675 P.2d 246, 249 (1984), considered the same issues as we now decide, and concluded that the entity approach or tenancy in partnership theory was too nebulous a concept to reduce by judicial opinion to a criminal rule. I agree with the Washington court. See also People v. Zinke, 76 N.Y.2d 8, 556 N.Y.S.2d 11, 12-15, 555 N.E.2d 263, 264-67 (N.Y.1990).

The majority’s decision not only changes the law but applies it retroactively without notice. Bouie v. City of Columbia, 378 U.S. 347, 352-54, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894, 899-900 (1964) speaks directly on this issue.

There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language. As the Court recognized in Pierce v. United States, 314 U.S. 306, 311 [62 S.Ct. 237, 240, 86 L.Ed. 226], “judicial enlargement of a criminal Act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness.” Even where vague statutes are concerned, it has been pointed out that the vice in such an enactment cannot “be cured in a given case by a construction in that very case placing valid limits on the statute,” for the objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss.... Freund, The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 541 (1951).

(Citation omitted.) If this view is valid in the case of a judicial construction which adds a “clarifying gloss” to a vague statute, making it narrower or more definite than its language indicates, it must be a fortioñ so where the construction unexpectedly broadens a statute which on its face had been definite and precise. [Citation omitted.] Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one “that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,” or “that aggravates a crime, or makes it greater that it was, when committed.” Calder v. Bull, 3 Dall. 386, 390 [1 L.Ed. 648]. If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Calhoon [Cahoon] 283 U.S. 553, 565 [51 S.Ct. 582, 586, 75 L.Ed. 1264], The fundamental principle that “the required criminal law must have existed when the conduct in issue occurred,” Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect. Id., at 61.

(Footnote omitted).

I believe the result in the instant case, as in Bouie, violates defendant’s due process rights under the Fourteenth Amendment because of vagueness. I also believe it is unwise as a matter of public policy to transfer to the criminal courts the frequent disputes between partners about whether an act by one partner is authorized as partnership business. Those questions more properly belong in the civil court arena where they have been adequately resolved for a hundred years.

LAYORATO, J., joins this dissent.