State of Iowa v. Fawn Victoria Johnson ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1802
Filed December 9, 2015
STATE OF IOWA,
Plaintiff-Appellant,
vs.
FAWN VICTORIA JOHNSON,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rebecca Goodgame
Ebinger, Judge.
The State seeks reversal on interlocutory appeal of the district court’s
denial of the State’s motion to amend the trial information. AFFIRMED.
Thomas J. Miller, Attorney General, Kevin Cmelik and Mary A. Triick,
Assistant Attorneys General, for appellant.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellee.
Heard by Danilson, C.J., and Mullins and McDonald, JJ.
2
MULLINS, Judge.
The Iowa Supreme Court granted the State’s application for discretionary
review and request for a stay to permit the State to seek a reversal of the district
court’s denial of its motion to amend the trial information. The State contends the
district court erred in denying its motion to amend the trial information and the
district court’s interpretation of Iowa Code section 124.201(4) (2013) should be
avoided in favor of a reasonable alternative interpretation. The State also raises
various policy and constitutional arguments against the district court’s statutory
interpretation. Upon our review, we affirm.
I. Background Facts and Proceedings
The State alleges that on multiple occasions in October 2013, the
defendant, Fawn Johnson, a store clerk, sold pouches containing a synthetic
cannabinoid, XLR11, to a confidential informant. The State also alleges that
between October 2013 and February 2014, Johnson conspired with others to
distribute XLR11.
On April 14, 2014, the State filed a trial information charging Johnson with
two counts of delivery of a controlled substance and one count of conspiracy to
deliver the same controlled substance, all of which constitute aggravated
misdemeanors, under Iowa Code section 124.401(1)(d).1 On May 19, 2014, the
State filed a motion to amend the trial information. The proposed amended trial
1
Prior to the Iowa Board of Pharmacy’s temporary designation of XLR11 as a schedule I
controlled substance, it was classified under Iowa Code section 124.204(4)(ai). Section
124.401(1)(d) provides, “[v]iolation of this subsection, with respect to any other
controlled substances, counterfeit substances, or simulated controlled substances
classified in section 124.204, subsection 4, paragraph ‘ai’ . . . is an aggravated
misdemeanor.”
3
information changed the code section under which Johnson was charged from
subsection 124.401(1)(d) to subsection 124.401(1)(c)(8),2 effectively changing
each alleged offense to a class “C” felony. The State argued that at the time of
Johnson’s alleged offenses, XLR11 had been reclassified by the Iowa Board of
Pharmacy (the board), pursuant to section 124.201(4), as a substance subject to
criminal penalties under section 124.401(1)(c)(8). The district court held a
hearing on the State’s motion, and subsequently denied the motion. The State
sought reconsideration of the district court’s ruling, which was denied. The State
sought interlocutory appellate review with an amended application for
discretionary review/stay, which our supreme court granted.
II. Analysis
Iowa Code section 124.201(4) sets forth the duty the board has to
recommend changes in controlled substance schedules to the general assembly
following a new substance’s designation as a controlled substance under federal
law.3 The board is required to either “similarly designate as controlled the new
substance” or “object[] to the new designation . . . [and] publish the reasons for
objection and afford all interested parties an opportunity to be heard. Iowa Code
§ 124.201(4). Any designation of the substance as controlled by the board is
temporary and will expire sixty days after the general assembly next convenes
2
Section 124.401(1)(c)(8) provides, “[a]ny other controlled substance, counterfeit
substance, or simulated controlled substance classified in schedule I, II, or III, except as
provided in paragraph ‘d’.”
3
The board’s duty pertains to recommendations regarding “any deletions from, or
revisions in the schedules of substances, enumerated in section 124.204, 124.206,
124.208, 124.210, or 124.212.” Iowa Code § 124.201(1). However, section 124.201
makes no reference to section 124.401, which provides for criminal penalties when a
person manufactures, delivers, or possesses a controlled substance.
4
for a regular session if the legislature fails to make corresponding changes to
chapter 124 (Controlled Substances). Id. If the self-imposed sixty-day deadline
expires before the general assembly acts, “the temporary designation of control
of the substance by the board shall be nullified.” Id.
On July 9, 2013, the board designated XLR11 a schedule I controlled
substance, recommending a new subsection be added to Iowa Code section
124.204 that would include XLR11 in the list of substances punishable under
section 124.401(1)(c)(8). See Iowa Admin. Code r. 657-10.38(1)(b). Following
this designation, the legislature was required to make corresponding changes
within sixty days of January 13, 2014, when the general assembly next
convened, if it chose to make the temporary designation permanent. The Iowa
Senate passed a bill that included the corresponding changes on February 24,
2014. The bill passed through the Iowa House on March 18, 2014, sixty-four
days after the general assembly convened. On April 3, 2014, twenty days past
the deadline, the governor signed the bill into law.
The district court ruled that because the legislation was not approved by
the general assembly and signed by the governor within sixty days of when it
convened, the temporary designation was nullified by operation of section
124.201(4). The State argues the district court erred in denying its motion to
amend the trial information and the district court’s interpretation of section
124.201 should be avoided in favor of a reasonable alternative interpretation. It
claims the nullification language in section 124.201(4) should apply only
prospectively and not retroactively.
5
We review questions of statutory interpretation for correction of errors of
law. State v. Romer, 832 N.W.2d 169, 174 (Iowa 2013). “Rules of statutory
construction are to be applied only when the explicit terms of a statute are
ambiguous.” Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). A statute is
unambiguous unless “reasonable minds could differ or be uncertain as to the
meaning of the statute.” Id. “Absent a statutory definition or an established
meaning in the law, words in the statute are given their ordinary and common
meaning by considering the context within which they are used.” Auen v.
Alcoholic Beverages Div., Iowa Dep’t of Commerce, 679 N.W.2d 586, 590 (Iowa
2004).
The word “nullified” is not defined in chapter 124. When the legislature
has not defined words used in a statute, we must determine as best we can the
meaning of the language in accordance with the legislative intent so as to
prevent absurdities and incongruities that may prevent justice. State v.
Steenhoek, 182 N.W.2d 377, 379 (Iowa 1970). In doing so, we may refer to prior
decisions of this court and others, similar statutes, dictionary definitions, and
common usage to aid our interpretation. State v. Soboroff, 798 N.W.2d 1, 6
(Iowa 2011).
“Nullify” is defined as “[t]o make void; to render invalid.” Black’s Law
Dictionary (10th ed. 2014). It is further defined as “to make of no value or
consequence” or “to cause (something) to lose its value or to have no effect.”
Nullify, Webster’s Third New International Dictionary 1549 (unabr. ed. 2002).
Prior decisions, while scarce, indicate use of the word “nullified” implies
6
retroactive voidance where the legislature fails to adopt a recommendation and
enact corresponding changes. See Fleur de Lis Motor Inns, Inc. v Bair, 301
N.W.2d 685, 686 (Iowa 1981) (finding that statutory amendments apply only
prospectively from their effective date); see also Benton County v. Wubbena, 300
N.W.2d 168, 170 (“Statutes operate prospectively only unless legislative intent
that they be given retrospective operation clearly appears from the express
language of the act or by necessary implication.”).
The district court found that by “us[ing] the word ‘nullified’ in section
124.201(4), the legislature intended to render the temporary rule ‘of no value or
consequence’ without corresponding legislative enactment within sixty days.”
The State argues the district court should have adopted the definition of “nullify”
as “to cause something to lose its value” or to negate its future effects. It claims
the board’s temporary designation had legal effect at the time Johnson allegedly
committed the offenses in question and remained the law until the sixty-day
deadline expired, at which time it “lost its value” due to the legislature’s inaction.
The plain language of the statute is unambiguous. When the legislature
fails to act and make changes corresponding to the board’s recommendation
within sixty days of its convening the next session, then the temporary
designation is nullified—of no value or consequence.
The State asserts various additional arguments against the district court’s
interpretation. Its arguments raise policy and constitutional concerns, including
protecting public safety, ensuring deterrence, producing absurd results, savings
clause issues, and ex post facto implications, as they might relate to other or
7
future prosecutions.4 Assuming without deciding that any of the State’s
arguments have merit, we need not and will not reach them because the facts of
this case do not present these issues, and the plain language of the statute
dictates the result the legislature required.
For the foregoing reasons, we agree with the district court’s interpretation
of Iowa Code section 124.201(4) and affirm its denial of the State’s motion to
amend the trial information.
AFFIRMED.
4
Neither party has briefed the issue of whether section 124.201 is an improper
delegation of legislative authority to an administrative agency. See Goodlove v. Logan,
251 N.W. 39, 43 (Iowa 1933). Because this issue was not raised in the district court or
briefed by the parties on appeal, we will not address it in this opinion and will confine our
holdings/review to the issues properly preserved and raised on appeal. Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate
review that issues must ordinarily be raised and decided by the district court before we
will decide them on appeal.”); see Aluminum Co. of Am. v. Musal, 622 N.W.2d 476, 479–
80 (Iowa 2001) (“Issues not raised in the appellate briefs cannot be considered by the
reviewing court.”) (citing Hubby v. State, 331 N.W.2d 690, 694 (Iowa 1983) (“[I]ssues are
deemed waived or abandoned when they are not stated on appeal by brief.”)).