Renee Hummel v. Adam B. Smith, Adam Smith, M.D., P.C., and Tri-State Specialists, L.L.P. ( 2023 )

IN THE SUPREME COURT OF IOWA
No. 22–1572
Submitted November 15, 2023—Filed December 22, 2023
RENEE HUMMEL,
Appellee,
vs.
ADAM B. SMITH, ADAM SMITH, M.D., P.C., and TRI-STATE SPECIALISTS,
L.L.P.,
Appellants.
Appeal from the Iowa District Court for Woodbury County, Roger L. Sailer,
Judge.
The defendants in a medical malpractice case seek interlocutory review of
an order denying their motion to strike and for summary judgment because the
expert who signed the plaintiff’s certificate of merit did not have an active license
to practice medicine. REVERSED AND REMANDED.
Mansfield, J., delivered the opinion of the court, in which Christensen,
C.J., and Waterman, McDonald, and Oxley, JJ., joined, and in which McDermott
and May, JJ., joined in part. McDermott, J., filed a special concurrence, in which
May, J., joined.
Jeff W. Wright and Zack A. Martin of Heidman Law Firm, P.L.L.C., Sioux
City, for appellants.
Jon Specht of Trial Lawyers for Justice, Decorah, for appellee.
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MANSFIELD, Justice.
I. Introduction.
To establish a prima facie case of medical malpractice, the plaintiff must
ordinarily provide expert testimony that the defendant breached the relevant
standard of care. See Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990). In
such a case, the plaintiff must submit a certificate of merit affidavit signed by an
expert witness within sixty days of the defendant’s answer. Iowa Code
§ 147.140(1)(a) (2020). Failure to substantially comply with this requirement will
lead, upon motion, to dismissal of the case with prejudice. Id. § 147.140(6). Iowa
law also requires that an expert witness on standard of care or its breach be
“licensed to practice in the same or a substantially similar field as the
defendant.” Id. § 147.139(1).
In this medical malpractice case, the plaintiff submitted a certificate of
merit signed by a physician who had practiced in the same field—plastic
surgery—as the defendant. But due to his retirement, the physician’s active
practice licenses had expired and become inactive, meaning that he was no
longer able to practice medicine. The defendants moved to strike the expert and
for summary judgment on this ground. After the district court denied the
defendants’ motion, we granted their application for an interlocutory appeal.
We now conclude that the “licensed to practice” language in the statute
requires the expert to have an active license that allows the actual practice of
medicine; an inactive license does not meet this requirement. Therefore, we
reverse the district court’s ruling and remand for entry of judgment in favor of
the defendants.
II. Background Facts and Proceedings.
On March 23, 2020, Renee Hummel sued Dr. Adam Smith and entities
that employed him for injuries she sustained as a result of a 2018 breast
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reduction surgery.1 Hummel’s petition alleged negligence, breach of warranty,
and failure to obtain informed consent. On June 15, pursuant to Iowa Code
section 147.140, Hummel submitted a certificate of merit affidavit signed by
Richard Marfuggi, M.D. Dr. Marfuggi’s affidavit stated that Smith had breached
the standard of care with respect to Hummel’s surgery and follow-up care. The
affidavit also stated that Dr. Marfuggi had actively performed plastic surgery and
postsurgical care in the five years leading up to April 26, 2018, the date of
Hummel’s surgical procedure.
However, Dr. Marfuggi acknowledged in the affidavit that he had retired
from clinical practice on July 1, 2019. As it turned out, by the time Dr. Marfuggi
signed the affidavit, both his New York and New Jersey licenses had become
“inactive” or “retired,” meaning that he was no longer authorized to practice
medicine in either state.
Later, Hummel designated Dr. Marfuggi as an expert witness for purposes
of Iowa Code section 668.11. In an expert report, Dr. Marfuggi explained in
greater detail the ways in which he believed Dr. Smith had breached the
applicable standard of care.
On April 25, 2022, Dr. Smith moved to strike Dr. Marfuggi as an expert
witness and moved for summary judgment. Dr. Smith contended that the case
should be dismissed because Dr. Marfuggi had not met the expert witness
requirements of Iowa Code section 147.139(1). See Iowa Code § 147.140(1)(a)
(stating that the expert witness for a certificate of merit affidavit “must meet the
qualifying standards of section 147.139”). Section 147.139(1) requires—among
other things—that a person serving as an expert witness in a medical malpractice
1For the sake of simplicity, we will refer to the defendants collectively as “Dr. Smith.”
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case be “licensed to practice in the same or a substantially similar field as the
defendant.” Id. § 147.139(1).
Hummel resisted Dr. Smith’s motion. She later supplemented her
resistance with a sworn declaration from Dr. Marfuggi stating that he was eligible
to restore his New Jersey license to “active” status and was in the process of
doing so.
Following a hearing, the district court denied Dr. Smith’s motions. The
court reasoned that Dr. Marfuggi’s status as “licensed” in New Jersey and New
York was sufficient for purposes of Iowa Code section 147.139(1). It noted that
Iowa Code section 147.139(1) only requires the expert to be “licensed to practice,”
while in the very next subsection, the statute requires that the expert have
“actively practiced” within the five years preceding the alleged negligence. See id.
§ 147.139(2). In the district court’s view, this contrast in wording meant that a
“license to practice” need not be “active,” and it held that Dr. Marfuggi’s inactive
and retired licenses satisfied the statutory requirements for in section 147.139(1)
for an expert witness.
Dr. Smith filed a timely application for an interlocutory appeal. We granted
the application and stayed district court proceedings. We retained the appeal.
III. Standard of Review.
The issue is one of statutory interpretation. “Our review is . . . for
correction of errors at law.” State v. Ness, 907 N.W.2d 484, 487 (Iowa 2018)
(quoting State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003)).
IV. Analysis.
In 2017, the Iowa legislature amended Iowa Code section 147.139 relating
to expert witness standards. See 2017 Iowa Acts ch. 107, § 3 (codified at Iowa
Code § 147.139 (2018)). Previously, Iowa law simply required that the
standard-of-care expert’s “medical or dental qualifications relate directly to the
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medical problem or problems at issue and the type of treatment administered in
the case.” Iowa Code § 147.139 (2016). The 2017 legislation established more
elaborate standards, as follows:
If the standard of care given by a health care provider, as
defined in section 147.136A, is at issue, the court shall only allow a
person the plaintiff designates as an expert witness to qualify as an
expert witness and to testify on the issue of the appropriate standard
of care or breach of the standard of care if all of the following are
established by the evidence:
1. The person is licensed to practice in the same or a
substantially similar field as the defendant, is in good standing in
each state of licensure, and in the five years preceding the act or
omission alleged to be negligent, has not had a license in any state
revoked or suspended.
2. In the five years preceding the act or omission alleged to be
negligent, the person actively practiced in the same or a
substantially similar field as the defendant or was a qualified
instructor at an accredited university in the same field as the
defendant.
3. If the defendant is board-certified in a specialty, the person
is certified in the same or a substantially similar specialty by a board
recognized by the American board of medical specialties or the
American osteopathic association.
4. If the defendant is a licensed physician or osteopathic
physician under chapter 148, the person is a physician or
osteopathic physician licensed in this state or another state.
Id. § 147.139 (2018). With some additions that are not material to this case,
those 2017 changes remain in place for standard-of-care experts today. See id.
§ 147.139 (2023).
No one disputes that Dr. Marfuggi was “licensed” in New York and
New Jersey when he signed the certificate of merit affidavit and his expert report
for this case in 2020. Under New York law, a physician’s license “shall be valid
during the life of the holder unless revoked, annulled or suspended.” N.Y. Educ.
Law § 6502(1) (McKinney 2020). However, Dr. Marfuggi had transitioned to an
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“inactive license” in New York when he retired as of July 1, 2019. As the New
York State Education Department website explains, a medical professional—
including a physician—must have their license “registered” if they wish to
practice. General Information & Policies, N.Y. State Educ. Dep’t [hereinafter N.Y.
General Information & Policies], https://www.op.nysed.gov/about/general-
information-policies [https://perma.cc/4AVX-DEVF]. Registration requires,
among other things, the payment of a fee and completion of continuing
education. License Requirements for Physicians, N.Y. State Educ. Dep’t,
https://www.op.nysed.gov/professions/physicians/license-requirements
[https://perma.cc/5QAU-C4QJ]. A physician’s registration is good for two years
and must be renewed. N.Y. General Information & Policies. If the physician is not
practicing, they may place their registration on inactive status free of charge.
Online Registration Renewal, N.Y. State Educ. Dep’t, https://www.op.nysed.gov/
registration-renewal/online-registration-renewal [https://perma.cc/RG8S-YJR5]
(select the underlined text titled “How to Request Inactive Status Online”).
Likewise, Dr. Marfuggi had become a “retired” licensee upon his 2019
retirement in New Jersey. New Jersey recognizes the status of a “retired” licensee
who is licensed but not authorized to practice medicine. See N.J. Stat. Ann.
§ 45:9-6.1 (West 2020) (“The certificate of registration which shall be issued to a
retired physician shall state, among other things, that the holder has been
licensed to practice in New Jersey, but that during his retirement he shall not so
practice.”).
Iowa also has a category of physicians who are licensed but inactive and
ineligible to practice. Under Iowa law, “[a] physician whose license is inactive
continues to hold the privilege of licensure in Iowa but may not practice medicine
under an Iowa license until the license is reinstated to current, active status.”
Iowa Admin. Code r. 653–9.14(1)(c). “A licensee whose license is inactive or
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lapsed shall not engage in the practice of the profession until the license is
reactivated or reinstated.” Iowa Code § 147.10(2) (2020); see also Iowa Admin.
Code r. 653–9.1 (“ ‘Current, active status’ means a license that is in effect and
grants the privilege of practicing . . . medicine and surgery . . . .”).
Clearly, Dr. Marfuggi would have qualified as a standard-of-care expert if
he had signed the certificate of merit affidavit and the expert report in 2018,
before his retirement. The fighting issue in this case is whether Dr. Marfuggi was
“licensed to practice” in 2020, notwithstanding his retirement and the inactive
and retired status of his licenses.
“When interpreting the meaning of a statute, we start with the statute’s
text.” Calcaterra v. Iowa Bd. of Med., 965 N.W.2d 899, 904 (Iowa 2021). “If
statutory language in its proper context is unambiguous, we do not look past the
plain meaning of the words.” Id.As we have explained,
“A statute is ambiguous if reasonable minds could differ or be
uncertain as to the meaning of the statute.” We have said that
“[a]mbiguity may arise from specific language used in a statute or
when the provision at issue is considered in the context of the entire
statute or related statutes.” In other words, even if the meaning of
words might seem clear on their face, their context can create
ambiguity.
That is because we read statutes as a whole rather than
looking at words and phrases in isolation.
Iowa Ins. Inst. v. Core Grp. of the Iowa Ass’n for Just., 867 N.W.2d 58, 72 (Iowa
2015) (alteration in original) (quoting Mall Real Est., L.L.C. v. City of Hamburg,
818 N.W.2d 190, 198 (Iowa 2012)).
Section 147.139 imposes several requirements. The expert must be
currently “licensed to practice in the same or a substantially similar field as the
defendant.” Iowa Code § 147.139(1). The expert must have “actively practiced”
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(or have been a qualified instructor) during the five years prior to the act or
omission in question. Id. § 147.139(2). And if the defendant is a licensed
physician, the expert must also be “licensed” in a state. Id. § 147.139(4)(a).
Hummel argues that “licensed to practice” means nothing more than
“licensed.” She maintains that if the legislature wanted to impose an active
practice requirement, it would have said so. She emphasizes that the entire
phrase reads “licensed to practice in the same or a substantially similar field as
the defendant,” and that the point of the word “practice” is simply to assure that
the expert has been engaged in the same field as the defendant. Id. § 147.139(1).
Dr. Smith, on the other hand, insists that Hummel’s interpretation “effectively
reads ‘to practice’ out of the statute.”
On our first pass, we find that the term “licensed to practice” is ambiguous.
The text seems to favor Dr. Smith. It is framed in the present tense—“is licensed
to practice”—and the undisputed facts are that Dr. Marfuggi could not legally
practice medicine when he signed the certificate of merit affidavit and the expert
report. He was licensed but not licensed to practice.
Yet reasonable minds could differ. Reading the statute as a whole, it is
plausible that “to practice” should be coupled primarily with “in the same or a
substantially similar field as the defendant” and that the effect of the phrase is
to require that the expert possess a license covering the same or a substantially
similar field as the defendant, whether active or not. This is seemingly bolstered
by the separate requirement imposed by section 147.139(2) that in the five years
preceding the act or omission alleged to be negligent, the expert must have
“actively practiced in the same or a substantially similar field as the defendant
or was a qualified instructor at an accredited university in the same field as the
defendant.” Id. § 147.139(2). In Hummel’s view, section 147.139(2) addresses the
extent to which the expert must be—or must have been—active, and section
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147.139(1) addresses whether or not the expert has a license and is in good
standing. Given this ambiguity, we will also consult other tools of statutory
interpretation. See State v. Doe, 903 N.W.2d 347, 351 (Iowa 2017).
One tool is the presumption against superfluous words. See Iowa Ins. Inst.,
867 N.W.2d at 75; see also Iowa Code § 4.4(2) (setting forth the presumption that
“[t]he entire statute is intended to be effective”). Under Hummel’s proposed
interpretation, the first sentence of section 147.139(1) could omit the phrase “to
practice” and still convey the same meaning. If we want to give separate meaning
to the phrase “to practice,” we need to read that phrase as requiring the expert
to possess a license that actually authorizes practice.
Hummel argues that Dr. Smith’s interpretation also leads to extra words.
That is, it creates a redundancy between the first sentence of section 147.139(1),
which requires that the expert be presently licensed to practice in the same or a
similar field as the defendant, and section 147.139(2), which requires that the
expert have actively practiced or taught in the same or a similar field as the
defendant during the five years preceding the alleged act or omission. But that
isn’t quite so. For one thing, the timeframes are different: section 147.139(1)
focuses on the time when the expert is performing a specific role in the case;
section 147.139(2) focuses on the five years preceding the act or omission. In
addition, Hummel overlooks that an expert could have a license that authorizes
practice without actually being engaged in practice or teaching; that would still
satisfy section 147.139(1) as interpreted by Dr. Smith.
We also interpret statutes to favor reasonable results. See Iowa Ins. Inst.,
867 N.W.2d at 75; see also Iowa Code § 4.4(3) (setting forth a presumption that
“[i]n enacting a statute . . . [a] just and reasonable result is intended”); id. § 4.6(5)
(indicating that when a statute is ambiguous, we may consider “[t]he
consequences of a particular construction”). One could argue that it shouldn’t
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matter whether an expert holds a current, active license so long as the expert is
actively engaged in the same field of medicine at the time of the act or omission
and is still technically licensed and in good standing. Who cares about anything
else? Still, the legislature might have concluded that there is a benefit to
requiring experts in medical malpractice cases not to be retired or inactive. An
expert with a license authorizing the practice of medicine has an ongoing role in
the medical field and, in the legislature’s view, might be more careful in passing
judgment on another healthcare provider.
Another relevant interpretive consideration is what the phrase “license to
practice” means when used elsewhere in the Iowa Code. See State v. Richardson,
890 N.W.2d 609, 618 (Iowa 2017) (“One possible tool is to examine how the
phrase . . . is used elsewhere in the Iowa Code.”). Generally, the phrase means
that the person has the present legal ability to practice in the field. In fact,
chapter 147 frequently uses “license” and “license to practice” interchangeably,
such that the word “license” when used alone means an active license. Consider
the following instances where “license” in isolation refers to an active license:
Iowa Code section 147.2(1) provides that a person shall not practice medicine
without a “license for that purpose,” and section 147.7(1) provides that a board
“may require every person licensed by the board to display the license and
evidence of current renewal publicly in a manner prescribed by the board.”
By contrast, chapter 147 equates an “inactive license” with a “lapsed”
license that needs to be reactivated before it can be used. Iowa Code section
147.10(1) provides, “Every license to practice a profession shall expire in
multiyear intervals and be renewed as determined by the board upon application
by the licensee.” Iowa Code section 147.10(2) goes on: “Failure of a licensee to
renew a license within the grace period shall cause the license to become inactive
or lapsed. A licensee whose license is inactive or lapsed shall not engage in the
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practice of the profession until the license is reactivated or reinstated.” See also
id. § 147.11(1) (“A licensee who allows the license to become inactive or lapsed
by failing to renew the license, as provided in section 147.10, may reactivate the
license upon payment of a reactivation fee and compliance with other terms
established by board rule.”); Iowa Admin. Code r. 653–9.14(1)(a) (“ ‘Inactive
status’ may include licenses formerly known as delinquent, lapsed, or retired.”).
Someone whose license has become inactive is, in the eyes of the foregoing
provisions of Iowa law, licensed in name but not substance.
Iowa Code section 147.49 states, “A board shall, upon presentation of a
license to practice a profession issued by the duly constituted authority of
another state with which this state has established reciprocal relations . . .
license the applicant to practice in this state.” In this context, “license to
practice” clearly means an active license. Were the phrase “license to practice”
to be read to include inactive and retired licenses, the Iowa Board of Medicine
would be compelled to grant licensure to physicians from reciprocal states who
had long ceased practicing medicine and whose licenses had lapsed many years
ago.
We may also consider legislative history. Iowa law provides that in
interpreting an ambiguous statute, we may consider “[t]he circumstances under
which the statute was enacted” and “[t]he legislative history.” Id. § 4.6(2)–(3); see
also Iowa Ins. Inst., 867 N.W.2d at 76. The bill explanation for the 2017
legislation states,
The bill provides standards for an expert witness in a medical
malpractice case. The bill provides that a person is only qualified to
serve as an expert witness in a medical malpractice case if the
person is a licensed health care provider, is in good standing in each
state of licensure, and in the five years preceding the act or omission
alleged to be negligent, has not had a license in any state revoked or
suspended . . . .
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H.F. 487, 87th G.A., 1st Sess., explanation (Iowa 2017). This summary of the
legislation indicates that a person can serve as an expert if the person is “a
licensed health care provider.” It does not indicate that the license must be active
or that it must authorize practice. We have relied on bill explanations in the past
as interpretive aids, noting that the internal rules governing the general
assembly require such explanations to be accurate. See Iowa Ins. Inst.,
867 N.W.2d at 76; Star Equip., Ltd. v. State, 843 N.W.2d 446, 454 (Iowa 2014).
But we have declined to follow such explanations when they are inconsistent
with the text of the legislation. Borst Bros. Const., Inc. v. Fin. of Am. Com., LLC,
975 N.W.2d 690, 701–02 (Iowa 2022).
While the matter is not free from doubt, when we weigh all of these
considerations together, we conclude that “license to practice” as used in section
147.139(1) requires that the expert currently possess a license that authorizes
practice. That is the more logical reading of the actual text. It is not logical to say
that “to practice” modifies the language that follows it but not the language that
precedes it. Rather, we are dealing with an infinitive that connects both. The
physician has a license. What kind of license? A license to practice in the same
or substantially similar field as the defendant.
Also, Dr. Smith’s interpretation is more consistent with how terms like
“license” and “license to practice” are used elsewhere in chapter 147. And we
avoid redundancy if we conclude that the term “to practice” was included in
section 147.139(1) to avoid the implication that other forms of licensure, such
as inactive or retired status, would be enough.
While our interpretation of this 2017 statutory revision is a matter of first
impression, it is not made in a vacuum. Several of our sister states with similar
statutes concerning expert testimony have come to the same conclusion.
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Louisiana law requires that experts testifying in a medical malpractice
case must be “licensed to practice medicine” in Louisiana or any other state or
be “a graduate of a medical school accredited by the American Medical
Association’s Liaison Committee on Medical Education or the American
Osteopathic Association.” La. Stat. Ann. § 9:2794(D)(1)(d) (2020). In the case of
Benjamin v. Zeichner, the plaintiffs relied on the testimony of a doctor whose
license had become inactive. See 113 So. 3d 197, 204 (La 2013) (per curiam).
When analyzing “the legislative requirement that a physician ‘is’ licensed to
practice medicine at the time of his trial testimony,” the Louisiana Supreme
Court concluded that “[t]he clear language of the statute requires current
licensure.” Id. at 202. Because the doctor’s inactive license was not a license to
practice and there was no indication he had attended a school accredited by the
appropriate association, the Louisiana Supreme Court affirmed the district
court’s decision to grant a directed verdict for failure to establish a prima facie
case of medical malpractice. Id. at 203–04.
Similarly, Ohio law requires that physicians testifying in medical
malpractice claims be “licensed to practice medicine and surgery, osteopathic
medicine and surgery, or podiatric medicine and surgery by the state medical
board or by the licensing authority of any state.” Ohio Evid. R. 601(B)(5)(a). In
the case of May v. Donich Neurosurgery & Spine, L.L.C., the plaintiffs offered
opinions from a physician whose license had expired about four months prior to
signing an affidavit of merit for the case. No. 29215, 2019 WL 5212591, at *1
(Ohio Ct. App. Oct. 16, 2019). The defendants moved to strike the expert and
dismiss the case. Id. Despite the plaintiffs’ explanation that the expert was
attempting to renew his license at that time, the court affirmed the decision to
strike the expert’s testimony and dismiss the case because at the time of signing
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the affidavit, the physician had not been licensed to practice and therefore could
not be admitted as an expert. Id. at *5.
In Pennsylvania, an expert delivering medical testimony concerning
standard of care must “[p]ossess an unrestricted physician’s license to practice
medicine in any state or the District of Columbia.” 40 Pa. Stat. and Cons. Stat.
§ 1303.512(b)(1) (West 2020). In the case of Bethea v. Philadelphia AFL-CIO
Hospital Association, the plaintiff proposed as her expert a retired general
surgeon whose medical license had expired three years prior to the preparation
of his expert report. 871 A.2d 223, 225 (Pa. 2005). The court found that his
expired license was not a license to practice as required by statute and affirmed
the dismissal of the plaintiff’s claim. Id. at 226–27.
Thus, our conclusion that Iowa law requires medical malpractice experts
to possess active licenses would not put us on an island. For all the reasons
stated—including statutory text, rules of interpretation, and the views of other
states—we conclude that a qualified expert under Iowa Code section 147.139
must possess a current active license to practice.
We now turn to Hummel’s alternative argument that she substantially
complied with the relevant statutory requirements. See Iowa Code § 147.140(6)
(requiring dismissal on motion when the plaintiff fails to “substantially comply”
with the certificate of merit affidavit requirement); Hantsbarger v. Coffin,
501 N.W.2d 501, 504 (Iowa 1993) (en banc) (recognizing a substantial
compliance exception to the requirements of section 668.11). “Substantial
compliance means ‘compliance in respect to essential matters necessary to
assure the reasonable objectives of the statute.’ ” McHugh v. Smith, 966 N.W.2d
285, 288–89 (Iowa Ct. App. 2021) (quoting Hantsbarger, 501 N.W.2d at 504).
Having concluded that the statute requires experts to be currently licensed to
practice, we do not believe that an affidavit from a physician who retired in 2019
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and took inactive or retired status at that time amounts to substantial
compliance.
Because Dr. Marfuggi did not have a license to practice medicine when he
signed the certificate of merit affidavit or the expert report, we reverse and
remand with directions that judgment be entered in favor of the defendants.
V. Conclusion.
For the foregoing reasons, we reverse the district court’s order and remand
for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Christensen, C.J., and Waterman, McDonald, and Oxley, JJ., join this
opinion, and McDermott, and May, JJ., join in part. McDermott, J., files an
opinion concurring specially, in which May, J., joins.
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#22–1572, Hummel v. Smith
MCDERMOTT, Justice (concurring specially).
I join today’s opinion except for the part that ventures into legislative
history. The majority correctly construes the statute’s use of “license to practice”
in Iowa Code § 147.139(1) as requiring that the expert currently possess a license
that authorizes practice in the defendant’s field. But while applying valid canons
of statutory construction on its analytical path, the majority takes an ill-advised
detour to evaluate the legislative history of the statute, citing the “bill
explanation” that initially accompanied the legislation. This digression into the
legislative history is unnecessary and, in fact, undermines the majority’s
otherwise rigorous textual analysis.
“The law is what the law says . . . .” Bank One Chi., N.A. v. Midwest Bank
& Tr. Co., 516 U.S. 264, 279 (1996) (Scalia, J., concurring in part and concurring
in the judgment). The law is not the statements or beliefs or explanations of
particular legislators or legislative staff. We must apply statutes “as written, not
by what the legislature might have said or intended.” State v. Macke, 933 N.W.2d
226, 233 (Iowa 2019). The text’s meaning “is to be found not in the subjective,
multiple mind of Congress but in the understanding of the objectively reasonable
person.” Frank H. Easterbrook, The Role of Original Intent in Statutory
Construction, 11 Harv. J.L. & Pub. Pol’y 59, 65 (1988).
Reliance on legislative history is built on the flawed premise that when
construing statutes we are looking for the intent of the legislature rather than
the meaning of a statute’s text. Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 375 (2012) [hereinafter Scalia & Garner]. But
legislative bodies do not possess some freestanding “intent” that courts can
divine. For this reason, “[w]e do not inquire what the legislature meant; we ask
only what the statute means.” Schwegmann Bros. v. Calvert Distillers Corp., 341
17
U.S. 384, 396–97 (1951) (Jackson, J., concurring) (quoting Oliver Wendell
Holmes, The Theory of Legal Interpretation, in Collected Legal Papers 203, 207
(1920)).
A broad body of legal canons has formed around how courts should
interpret statutory text. See generally Scalia & Garner (detailing numerous
canons of statutory interpretation). But no similar canons exist for all the
different legislative histories one might find. “Since there are no rules as to how
much weight an element of legislative history is entitled to, it can usually be
either relied upon or dismissed with equal plausibility.” Antonin Scalia, A Matter
of Interpretation: Federal Courts and the Law 35–36 (1997). Proper constraints
on judicial decision-making that derive from the text—constraints consistent
with, if not critical to, the nature of our democratic system—come undone when
we resort to legislative history as an interpretive tool.
In Iowa, a bill must pass both the senate and house of representatives and
be signed by the Governor to become law. Iowa Const. art. III, §§ 15–16. The
preamble and bill explanation are attached at the beginning and end of a bill
when introduced, but neither part is voted on, and neither becomes part of our
codified law. See, e.g., Star Equip., Ltd. v. State, 843 N.W.2d 446, 454 n.3 (Iowa
2014) (“The legislature enacts the bill—not the accompanying explanation.”)
Ours is a system of written laws, and people can readily understand that
they will be bound by a law’s actual text. But people have no way of knowing
that they might also be bound by explanatory passages that a sponsoring
legislator includes when the bill is introduced in the legislature or bound by some
individual legislator’s statements uttered in the course of debate on a bill. And,
with any particular piece of legislative history, people “would not know any way
of anticipating what would impress enough members of the Court to be
controlling” in any event. Schwegmann Bros., 341 U.S. at 396 (Jackson, J.,
18
concurring). Our interpretation should be based on what the text says and fairly
implies without resorting to legislative history, which neither controls nor
clarifies the law’s meaning.
May, J., joins this special concurrence.