IN THE SUPREME COURT OF IOWA
No. 13–1438
Filed June 26, 2015
ROSELENE SANON and NEMI SANON, Individually and as
Administrators of the ESTATE OF NEHMSON D. SANON, and
PAULETTE CEZIL POGUE, Individually and as Administrator of the
ESTATE OF GAEL CEZIL HRISPIN,
Appellants,
vs.
CITY OF PELLA,
Appellee.
Appeal from the Iowa District Court for Polk County, Robert B.
Hanson, Judge.
Plaintiffs appeal and the city cross-appeals from a district court’s
grant of partial summary judgment on claims arising out of the drowning
deaths of two boys at the city’s swimming pool. AFFIRMED IN PART,
REVERSED IN PART, AND CASE REMANDED WITH INSTRUCTIONS.
Thomas J. Duff of Duff Law Firm, P.L.C., Des Moines, and
Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C.,
Des Moines, for appellants.
Jason C. Palmer, Mark L. Tripp, and Thomas M. Boes of
Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.
2
WIGGINS, Justice.
The parents of two children filed a claim for negligence against a
city following a drowning in the municipal pool. The parents also filed a
constitutional due process claim against the city for the drowning
incident under the state-created danger doctrine. The city filed a motion
for summary judgment claiming it had statutory immunity under Iowa
Code section 670.4(12) (2009) as to the negligence claims. 1 Section
670.4(12) grants the city immunity from liability, unless the parents’
claim is based upon an act or omission of an officer or employee of the
city that constitutes a criminal offense. The city also alleged there was
not a genuine issue of material fact to allow the claim under the state-
created danger doctrine to proceed.
The district court granted summary judgment on all of the parents’
negligence claims except that part of the claim in which the parents
allege the city employee’s acts constituted the criminal offense of
involuntary manslaughter. The district court also found there was no
genuine issue of material fact as to the due process claim. Both parties
filed applications for interlocutory appeal, which we granted. After
submission of this case to our court, the parents withdrew their
argument concerning the due process claim. Thus, we will not reach
that issue in this appeal and affirm the district court’s dismissal of the
due process claim.
In this appeal, we conclude the parents have alleged the city
violated administrative rules constituting criminal offenses under the
Iowa Code. Thus, if the city violated these rules, the city is not entitled
to immunity under Iowa Code section 670.4(12). We also hold the
1All Iowa Code references are to the 2009 Code, unless otherwise indicated.
3
parents must prove by a preponderance of the evidence that the city’s
acts or omissions constitute involuntary manslaughter to remove it from
the immunity granted by section 670.4(12). Thus, we remand the case to
the district court for further proceedings.
I. Background Facts and Proceedings.
The City of Pella began construction of the Pella Aquatics Center in
2003 and completed the aquatics center by 2004. The deep end of the
outdoor pool is thirteen feet deep. The pool features diving boards and
slides. The City constructed the pool with underwater lighting to
illuminate the pool at night. By late 2004, rust appeared on the back of
the light sockets of the underwater lights in the pool. In early 2005, Jan
Bensink, the City’s aquatics manager, and Kevin Vos, the community
services director, decided the aquatics center should no longer use the
underwater lights, even though the lights still worked.
Bensink and Vos did not consult anyone within the City’s electrical
department, the architect, or the engineer responsible for the lighting
system before making the decision to discontinue using the underwater
lights. State regulations require lighting sufficient “so that all portions of
the swimming pool, including the bottom and main drain, may be clearly
seen.” Iowa Admin. Code r. 641—15.4(4)(m)(2)(1) (2009). The rules also
provide
[a] swimming pool that is less than 8 ft deep shall be closed
if the grate openings on the main drain are not clearly visible
from the deck. A swimming pool that is 8 ft deep or deeper
shall be closed if the main drain is not clearly visible from
the deck.
Id. r. 641—15.4(2)(c).
The City did not arrange for additional overhead lighting to
compensate for the lack of underwater lighting or hire additional
4
lifeguards. The City rented the aquatics center’s facilities for nighttime
pool parties twenty to thirty times a year. The City did not turn on the
underwater lights for any of these events.
In January 2006, the City removed a portion of the pool deck to
inspect the electrical system and discovered numerous construction
defects. Central Electric Company (CEC) was responsible for the
electrical work on the pool, including the underwater lighting system.
The City filed suit against CEC, alleging breach of contract, breach of
express and implied warranties, negligence, and fraud. At trial on these
claims in July 2010, two expert witnesses testified for the City about the
lighting. Michael Fisher, an architectural engineer, opined the overhead
lighting did not meet the requirements of the Iowa Department of Public
Health. Fisher also testified that to enhance the overhead lighting to
meet safety standards would require four new light poles, at an
estimated cost of $97,500. Kurt Ewert, the electrical design engineer for
the pool project, testified “using the overhead lighting only right now [did]
not meet the Iowa regulations.” He testified underwater lighting is safer
than overhead lighting, which creates glare off the water surface. Neither
Fisher nor Ewert actually visited the pool or measured the lighting
themselves; instead, they based their conclusions on information
provided to them by the City.
Vos testified he was ultimately in charge of the pool. He stated he
had concerns about letting his own children swim in the pool at night
without underwater lights:
Q. Now, you mentioned that you had—you had
personal concerns about the underwater lights, correct?
A. Correct.
Q. And you were concerned about allowing your
children to swim at the pool, is that correct? A. Correct,
during the nighttime.
5
Q. But you allowed everyone else’s children to swim at
the pool and took their money, correct? A. It was according
to the city. They allowed that or whatever. I as a family
member or as a parent or whatever, that was just my
concern for my kids or whatever. But that—that’s the way I
made that decision.
On July 14, 2010, Gael Chrispin, age fourteen, and Nehmson
Sanon, age fifteen, drowned at the Pella Aquatics Center. The boys, both
from Kansas City, Missouri, were participants in a sports camp operated
by the Fellowship of Christian Athletes (FCA). The camp began on
July 12 at the campus of Central College in Pella. On the evening of
July 14, the FCA rented the aquatics center for a private pool party after
the normal pool closing time. The City, for a fee of $604, allowed the
FCA exclusive use of the indoor and outdoor pool facilities between 8:30
p.m. and 9:30 p.m. Approximately 175 campers and 21 FCA counselors
attended the pool party. The City provided lifeguards. The boys’ parents
had completed and signed a “student Participant Permission/Waiver
Form” for the FCA and indicated their sons were nonswimmers. The FCA
did not provide those waivers to the City. No one told the City or its
lifeguards that the campers included nonswimmers.
The water in the pool became murky that night to the point the
lifeguards on the pool deck could not see the drain at the bottom of the
deep end. 2 The underwater lighting system was not in use that night,
although it was operable. During the party, the boys used the drop slide
in the deep end of the large outdoor pool, and the lifeguards on duty did
not notice the boys failed to surface and exit the pool. At the end of the
2The record does not indicate how often the water became murky to the point
the drain in the deep end was no longer visible, but the City admitted the water was
murky on the evening in question.
6
party, the FCA discovered the boys’ absence. At that time, the lifeguards
found the boys’ bodies in the deep end of the pool near the main drain.
On March 21, 2012, the decedents’ parents, individually and as
administrators of the decedents’ estates, filed a civil action against the
City and the FCA. 3 The petition alleged negligence, conduct constituting
a criminal offense, premises liability, a constitutional due process
violation, and loss of consortium. On May 21, the City filed an answer
and a motion for summary judgment based on the immunity in Iowa
Code section 670.4(12). The City alternatively argued the parents could
not meet the elements of the due process claim. The parents filed a
resistance and amended their petition on August 31, adding a claim for
nuisance and alleging that the acts or omissions of the City constituted
involuntary manslaughter, a criminal offense avoiding the immunity.
The parents also claimed the deficiencies in water clarity and lighting of
the pool constituted a criminal offense as a violation of the rules
promulgated by the department. The FCA joined in the parents’
resistance to the City’s motion for summary judgment.
The district court granted partial summary judgment based on
immunity, dismissing the remaining tort theories “to the extent those
claims are premised on alleged violations of applicable administrative
regulations.” The court, however, denied the City’s motion for summary
judgment to the extent that the undisputed acts or omissions of the City
could constitute involuntary manslaughter as defined in Iowa Code
section 707.5(1).
3For the sake of brevity, we will refer to the appellants collectively as the
parents.
7
Both the parents and the City filed motions to amend or enlarge
the summary judgment ruling, asking the court to clarify the immunity
on the claim of negligent supervision. The City also asked the court to
determine the burden of proof for the criminal offense of involuntary
manslaughter, arguing the court should require the parents to prove
their claims beyond a reasonable doubt. On August 12, the district court
issued a ruling clarifying that the claims of negligence and premises
liability, including negligent supervision, survived to the extent they
could constitute the criminal offense of manslaughter. The court
declined to set the burden of proof for the offense of manslaughter at trial
because to do so would be to “render an advisory opinion.” The parents
voluntarily dismissed their claim for nuisance after the court’s ruling on
the motion for summary judgment.
The City and the parents filed unresisted applications for
interlocutory appeal. We granted both applications.
II. Issues.
We must decide whether a violation of an administrative rule
promulgated by the Iowa Department of Public Health constitutes a
crime and removes the immunity provided under Iowa Code section
670.4(12). In regards to the application for interlocutory appeal filed by
the City, we must determine if the district court is correct in finding
manslaughter is a criminal offense removing the immunity provided
under section 670.4(12) and what level of proof is needed to remove this
claim from the immunity.
III. Standard of Review.
We review cases resolved “on summary judgment for correction of
errors at law.” Ne. Cmty. Sch. Dist. v. Easton Valley Cmty. Sch. Dist., 857
N.W.2d 488, 491 (Iowa 2014). Summary judgment is proper “where
8
there are ‘no disputed issues of material fact and the moving party is
entitled to judgment as a matter of law.’ ” Id. at 491–92 (quoting City of
Cedar Rapids v. James Props., Inc., 701 N.W.2d 673, 675 (Iowa 2005)).
Additionally, this case requires us to construe the Iowa Code and the
Iowa Administrative Code. We review issues of statutory construction for
corrections of errors at law. Estate of Ryan v. Heritage Trails Assocs.,
Inc., 745 N.W.2d 724, 728 (Iowa 2008).
IV. Whether a Violation of a Rule Promulgated by the Iowa
Department of Public Health Constitutes a Crime to Remove the
Immunity Provided Under Iowa Code Section 670.4(12).
A. Statutory Interpretation—General Principles. When we
interpret a statute, our goal is to determine the legislative intent of the
statute. Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa
2004). In determining legislative intent, we look at the words used by the
legislature when it enacted the statute. Id. When interpreting a statute,
we are required to assess a statute in its entirety, not just isolated words
or phrases. State v. Young, 686 N.W.2d 182, 184–85 (Iowa 2004). We
also look at the entire chapter when the legislature enacted the statute,
so we may give the statute its proper meaning in context. Cf. City of
Okoboji v. Okoboji Barz, Inc., 717 N.W.2d 310, 314 (Iowa 2006) (“The
assessment of an ordinance requires consideration in its entirety so that
the ordinance may be given its natural and intended meaning.”); Kordick
Plumbing & Heating Co. v. Sarcone, 190 N.W.2d 115, 117 (Iowa 1971)
(“Generally speaking, ordinances promulgated pursuant to authority
delegated to a local governing body are extensions of state statutes and
are to be construed as statutes . . . .”). We also find the legislative
history of a statute is instructive of intent. State v. Dohlman, 725 N.W.2d
428, 431 (Iowa 2006).
9
B. The District Court’s Decision. The district court determined
the outcome of this issue rested with the interpretation of three statutes.
The first statute provides:
The liability imposed by section 670.2 shall have no
application to any claim enumerated in this section. As to
any such claim, a municipality shall be liable only to the
extent liability may be imposed by the express statute
dealing with such claims and, in the absence of such express
statute, the municipality shall be immune from liability.
....
12. A claim relating to a swimming pool or spa as
defined in section 135I.1 which has been inspected by a
municipality or the state in accordance with chapter 135I, or
a swimming pool or spa inspection program which has been
certified by the state in accordance with that chapter,
whether or not owned or operated by a municipality, unless
the claim is based upon an act or omission of an officer or
employee of the municipality and the act or omission
constitutes actual malice or a criminal offense.
Iowa Code § 670.4(12). This section immunizes the City from the tort
liability alleged by the parents unless “the act or omission constitutes
actual malice or a criminal offense.” Id.
The next statute relevant to the district court’s decision states:
Any person who knowingly violates any provision of
this chapter, or of the rules of the department, or any lawful
order, written or oral, of the department or of its officers, or
authorized agents, shall be guilty of a simple misdemeanor.
Id. § 135.38.
The final statute used by the district court states, “A person who
violates a provision of this chapter commits a simple misdemeanor.
Each day upon which a violation occurs constitutes a separate violation.”
Id. § 135I.5.
The district court relied on an unpublished court of appeals
opinion Larsen v. City of Reinbeck, No. 09–0163, 2009 WL 3064658 (Iowa
10
Ct. App. Sept. 17, 2009). In that opinion, the court of appeals found a
violation of a rule relating to swimming pools is not a criminal violation
for two reasons. Id. at *2. First, Iowa Code section 135I.5 only
criminalizes violations of the chapter and the administrative rules in
question are not part of chapter 135I. Id. at *1, *3. Second, the court of
appeals found section 135.38 only applied to the department’s programs
specifically administered under chapter 135 and was inapplicable to
swimming pool regulations promulgated under chapter 135I. Id. Relying
on Larsen, the district court found the City did not waive immunity
under the criminal offense exception contained in section 670.4(12).
C. Analysis. We begin our analysis by tracing the history of
present day chapter 135. In 1923, at an extraordinary session, the
legislature passed a bill forming the state department of health. 4 1923
Iowa Acts Extraordinary Sess. (unpublished) ch. 164, §§ 1–24, 26
(codified at Iowa Code ch. 105 (1924)). The legislature codified the laws
relating to the department in chapter 105 of the Code. See Iowa Code
ch. 105 (1924).
In 1923, when the legislature formed the department, there was no
administrative procedure act in place. In chapter 105, the legislature
gave the department certain powers including the power to establish,
publish, and enforce rules. Id. § 2191(17). Specifically, the legislature
stated:
The commissioner of public health shall be the head of the
“State Department of Health”, which shall:
4In 1986, under a legislative reorganization of state government, the legislature
renamed the state department of health to the Iowa Department of Public Health. 1986
Iowa Acts ch. 1245, § 1104 (codified at Iowa Code § 135.11 (1987)). In this opinion, we
will refer to the department of health and the department of public health as the
department.
11
....
17. Establish, publish, and enforce rules not
inconsistent with law for the enforcement of the provisions of
this title and for the enforcement of the various laws, the
administration and supervision of which are imposed upon
the department.
Id. The legislature granted the department the authority to establish
rules not only for chapter 105, but also for the other chapters of the
Code contained in the same title. See id. In 1923, the laws governing
the department were contained in title VII of the Code. Id. at xv, Analysis
of the Code by Titles and Chapters, title VII. Other laws contained in title
VII were laws regarding the state board of health, local boards of health,
contagious and infectious diseases, venereal diseases, disposal of dead
bodies, dead bodies for scientific purposes, public health nurses,
maternity hospitals, and registration of vital statistics. Id. From this
language, it is clear the statutory scheme developed by the legislature
was to give the department the power to establish, publish, and enforce
administrative rules for all the chapters contained in title VII of the Code.
This means the authorization for establishing, publishing, and enforcing
the rules governing the subject matter contained in the chapters in title
VII came from chapter 105.
In addition to the authorization portion of chapter 105, the
legislature enacted a penalty provision. Id. § 2217. It provided:
Any person who knowingly violates any provision of this
chapter, or of the rules of the department, or any lawful
order, written or oral, of the department or of its officers, or
authorized agents, shall be guilty of a misdemeanor.
Id. Because the rules of the department covered all the chapters
contained in title VII, a violation of any rule established by the
12
department concerning any matter contained in any chapter found under
title VII was a misdemeanor.
A 1933 amendment to section 2217 supports our conclusion. As
background to discussing this amendment, we must first discuss the
state of the law prior to the amendment. In 1923, when the legislature
formed the department, it also gave the department the power to
“[e]nforce the law relative to the ‘Practice of Certain Professions Affecting
the Public Health’, title 8.” Id. § 2191(15). The authority of the
department to adopt rules concerning the “Practice of Certain Professions
Affecting the Public Health,” was not found in chapter 105 or in title VII.
The legislature gave the department the authority to adopt the rules
concerning the “Practice of Certain Professions Affecting the Public
Health,” in section 2525, chapter 115, title VIII. See id. § 2525.
The 1933 amendment to section 2217 added the following sentence
to the penalty provision: “If said rules relate to the practice of
cosmetology said misdemeanors shall be punished by a fine of not to
exceed one hundred dollars or by imprisonment not to exceed thirty
days.” 1933 Iowa Acts Extraordinary Sess. ch. 30, § 8 (codified at Iowa
Code § 2217 (1935)). In other words, the legislature evidenced a clear
intent to have a violation of a department rule enacted under the
authority of a Code provision not contained in the same chapter as
section 2217 to be enforced under section 2217.
This leads us to examine the Code in effect on the day of the
drownings. The 2009 Code contained the following provision regarding
the department’s authority to establish, publish, and enforce rules:
The director of public health shall be the head of the
“Iowa Department of Public Health,” which shall:
....
13
13. Establish, publish, and enforce rules not
inconsistent with law for the enforcement of the provisions of
chapters 125 and 155, and Title IV, subtitle 2, excluding
chapter 146 and for the enforcement of the various laws, the
administration and supervision of which are imposed upon
the department.
Iowa Code § 135.11(13) (emphasis added). 5 Except for the italicized
words, section 135.11(13) contains the same language as the original
version found in section 2191(17) of the 1924 Code. The reason the
italicized language changed is that the legislature has given the
department authority over laws contained in additional chapters of the
Code.
In 2009 the language in section 135.11(13) gave the department
the authority to establish, publish, and enforce rules for all the
provisions of title IV, subtitle 2, excluding chapter 146 of the Code. Id. A
review of the Code reveals title IV, subtitle 2 includes chapter 135I. Id. at
xi–xii, Analysis of the Code by Titles, Subtitles, and Chapters, Vol. II.
Accordingly, we find the legislature gave the department the authority to
establish, publish, and enforce rules regarding swimming pools and spas
under section 135.11(13).
The penalty provision found in section 135.38 of the 2009 Code is
the same as the penalty provision found in section 2217 of the 1924
Code. Compare Iowa Code § 135.38 (2009), with id. § 2217 (1924). A
violation of a department rule in 1924 was a misdemeanor. Therefore, a
violation of the department rules relied upon by the parents is a
misdemeanor under section 135.38.
5At some point the general assembly reorganized the Iowa Code, moving Public
Health from title VII to title IV where it is currently found.
14
Before moving on to other issues, we think it is important to
address the arguments the district court used and the City urges us to
adopt. The City claims section 135I.4(5) is the authority for the
department to adopt the rules relied on by the parents; thus, the penalty
provisions of section 135.38 do not apply. We disagree.
First, we have found the rules relied upon by the parents are
authorized by section 135.11(13). The language of section 135I.4(5)
states the department may “[a]dopt rules in accordance with chapter 17A
for the implementation and enforcement of this chapter and the
establishment of fees.” Id. § 135I.4(5). We do not think the language of
section 135I.4(5) either authorizes the adoption of the rules or conflicts
with section 135.11(13).
We have found section 135.11(13) authorizes the adoption of the
rules. Section 135I.4(5) merely requires that any adoption of a rule must
be done under the laws established by chapter 17A, the Iowa
Administrative Procedure Act (IAPA). See Iowa Code ch. 17A. At the time
section 2191(17), now section 135.11(13), was enacted in 1923, we did
not have an IAPA. Reading section 135.11(13) in tandem with section
135I.4(5) gives the department the authority and means to adopt rules.
Second, even if we were to find the legislature gave the department
the authority to enact the rules relied upon by the parents solely under
section 135I.4(5), the outcome would not change. As seen by the 1933
amendments concerning cosmetologists, the legislature’s intent was that
the penalty provisions in section 135.38 apply to department rules
adopted under other sections of the Code within the control of the
department.
Lastly, the City argues a violation of any rule promulgated by the
department regarding swimming pools does not constitute a crime
15
because section 135I.5 states, “A person who violates a provision of this
chapter commits a simple misdemeanor.” Id. § 135I.5. It argues
because section 135I.5 does not reference the word “rule,” the legislature
did not criminalize a violation of a rule. It reinforces this argument by
claiming the chapters of the Code discussing the other functions under
the control of the department refer to rules in the penalty provision and
section 135I.5 does not. See, e.g., Iowa Code § 136C.4(1) (“It is unlawful
to operate or use radiation machines or radioactive material in violation
of this chapter or of any rule adopted pursuant to this chapter.”). We
once more disagree.
We are required to read statutes in their entirety. See State v.
Kostman, 585 N.W.2d 209, 212 (Iowa 1998) (“We will consider the
challenged statute in its entirety and in para materia, or together, with
other pertinent statutes.”). Our rules of statutory construction provide
“[a]mendments by implication are not favored, and if possible statutes
will be construed so as to be consistent with each other.” Caterpillar
Davenport Emps. Credit Union v. Huston, 292 N.W.2d 393, 396 (Iowa
1980). Additionally, “[s]ubsequent legislation does not retroactively
amend legislation or declare the intent of a prior General Assembly.” 1A
Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory
Construction § 22:13, at 294 (7th ed. 2009) (emphasis added).
Applying these principles, we first note there is nothing in the
legislative history to indicate the legislature considered Iowa Code section
135.38 when it enacted the penalty provisions of section 135I.5. Thus,
there is no basis for us to say the legislature’s enactment of section
135I.5 amended or modified the effect of section 135.38. In addition, the
enactment of section 135I.5 cannot in and of itself amend or declare the
statutory intent of section 135.38. Thus, the enactment of section 135I.5
16
did not change or amend the original legislative intent of 135.38
criminalizing a violation of a department rule.
Moreover, section 135.38 and section 135I.5 are not inconsistent
with each other. Just the opposite is true. When we read these sections
in tandem, section 135.38 criminalizes a violation of the department
rules, while section 135I.5 criminalizes a violation of a statute contained
in chapter 135I.
Although other chapters of the Code may have different
criminalization schemes, we need to focus on sections 135.38 and 135I.5
and their effect on each other at the time when the legislature enacted
section 135I.5. We reach this conclusion because the legislature did not
pass the other chapters cited by the City criminalizing violations of the
rules contemporaneously with section 135I.5. Therefore, we find when
the legislature enacted section 135I.5, it did not intend to modify section
135.38, but rather created a comprehensive regulatory scheme
criminalizing a violation of the rules and the Code provisions of chapter
135I.
A misdemeanor is a “criminal offense.” In re Prop. Seized from
Kaster, 454 N.W.2d 876, 878 (Iowa 1990) (“[I]t appears well settled that
[criminal offense] refers to conduct subjecting the offender to
imprisonment or fine and includes misdemeanors as well as felonies.”).
Section 670.4(12) exempts criminal offenses from the immunity it
provides to the City. See Iowa Code § 670.4(12). Accordingly, the district
court erred in granting summary judgment because a violation of the
rules relied upon by the parents is a criminal offense under Iowa Code
section 135.38.
17
V. Whether the District Court Was Correct in Finding
Manslaughter Is a Criminal Offense Removing the Immunity
Provided Under Iowa Code Section 670.4(12).
The City cross-appeals the district court’s ruling that the parents’
claims survive summary judgment to the extent that the acts and
omissions of a city employee or officer could constitute involuntary
manslaughter. Under Iowa Code section 707.5(2), “[a] person commits
an aggravated misdemeanor when the person unintentionally causes the
death of another person by the commission of an act in a manner likely
to cause death or serious injury.” The district court found the
undisputed acts and omissions of City employees or officers, viewed in
the light most favorable to parents, could fall under that definition. 6 The
City argues that no employee or officer’s actions can constitute
manslaughter as a matter of law because there has not been a criminal
conviction or even a criminal prosecution. The City alternatively argues
the parents must prove manslaughter beyond a reasonable doubt.
The City focuses on the word “constitutes” from section 670.4(12),
selectively citing dictionary definitions to emphasize that something is
“constituted” when it is formally established. The City argues the only
way a party can formally establish a criminal offense is by a conviction.
We disagree.
“By reference to similar statutes, prior judicial determinations, and
the dictionary, we are satisfied the term ‘criminal offense’ refers to that
conduct which is prohibited by statute and is punishable by fine or
imprisonment.” In re Kaster, 454 N.W.2d at 878 (emphasis added).
6The City did not move for summary judgment on grounds that the evidence as a
matter of law is insufficient to prove manslaughter and does not attempt to raise that
argument on appeal. We express no opinion whether the facts viewed in the light most
favorable to the parents are sufficient to support findings required to establish the
offense of manslaughter.
18
Conduct need not be punished or result in a conviction to be punishable.
We conclude no conviction is required to avoid the immunity defense.
We also note that the immunity in section 670.4(12) can be avoided
through a finding of actual malice, which requires no criminal
prosecution or conviction. This indicates the legislature did want to
immunize heightened misconduct, but stopped short of requiring a
criminal conviction.
We recently declined to require a criminal prosecution or
conviction to establish the violation of an attorney disciplinary rule that
required a finding the lawyer committed a “criminal act.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Stowers, 823 N.W.2d 1, 13 (Iowa 2012)
(holding an attorney’s acts of extortion violated Iowa Rule of Professional
Conduct 32:8.4(b)). We concluded “the absence of criminal charges, or
even acquittal of criminal charges, is not a defense.” Id. (citing Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Lustgraaf, 792 N.W.2d 295, 299
(Iowa 2010) (holding respondent’s failure to file tax returns in accordance
with federal law was a violation of rule 32:8.4(b), even though he was
never criminally charged)); see also State Grp. Indus. (USA) Ltd. v. Murphy
& Assocs. Indus. Servs., Inc., 878 N.E.2d 475, 479 (Ind. Ct. App. 2007)
(“Neither a criminal conviction nor proof beyond a reasonable doubt is
required to trigger the Crime Victims Statute.”). If the legislature had
intended to require a criminal conviction to avoid the immunity defense,
it would have said so in section 670.4(12). See Iowa Code § 137C.10(3)
(authorizing suspension of a license if “[t]he person conducts an activity
constituting a criminal offense in the hotel and is convicted of a serious
misdemeanor or a more serious offense as a result”). We will not amend
the statute to broaden the immunity in the guise of interpretation.
19
Alternatively, the City argues the parents must prove the criminal
offense exception to immunity beyond a reasonable doubt. The City
contends a civil finding that an employee or officer’s acts and omissions
constitute a criminal offense will subject individuals who are not parties
in the lawsuit to criminal liability without due process protections. That
is untrue. The state may only impose criminal sanctions through a
criminal prosecution and conviction with attendant heightened due
process protections. Given the differing burden of proof, the state could
not use a judgment on a jury finding in this civil action to establish guilt
in a criminal prosecution. Cf. Emp’rs Mut. Cas. Co. v. Van Haaften, 815
N.W.2d 17, 27 (Iowa 2012) (reviewing circumstances under which an
adjudication is not given preclusive effect in subsequent proceedings,
including procedural opportunities available only in the second action).
The City is correct that the parents must prove a City employee
committed manslaughter. The plain language of section 670.4(12) limits
the exception to the immunity to an “act or omission of an officer or
employee of the municipality [that] constitutes . . . a criminal offense.”
Iowa Code § 670.4(12) (emphasis added).
Nevertheless, to avoid the immunity defense, the parents need only
prove by a preponderance of the evidence that a City employee or officer
committed the criminal act causing injury. This is a civil action for
money damages. The civil burden of proof applies. The City cites no
case from any jurisdiction holding that a criminal-act exception to civil
immunity must be proven beyond a reasonable doubt. The higher
standard applies in criminal cases because the stakes are higher upon a
conviction—the loss of liberty through imprisonment, the numerous
collateral consequences, and the stigma of a criminal record.
20
Iowa law allows civil and criminal remedies to be pursued
independently. See id. § 611.21 (“The right of civil remedy is not merged
in a public offense and is not restricted for other violation of law, but
may in all cases be enforced independently of and in addition to the
punishment of the former.”); id. § 701.10 (“The fact that one may be
subjected to a criminal prosecution in no way limits the right which
anyone may have to a civil remedy.”). Our tort law routinely allows proof
of criminal offenses by a preponderance of the evidence to recover
damages in civil cases. See, e.g., Jones v. Blair, 387 N.W.2d 349, 352
(Iowa 1986) (“A violation of statutory rules of the road constitutes
negligence per se . . . .”). The reason to require proof beyond a
reasonable doubt does not apply in a civil action:
The requirement of proof beyond a reasonable doubt
has this vital role in our criminal procedure for cogent
reasons. The accused during a criminal prosecution has at
stake interest of immense importance, both because of the
possibility that he may lose his liberty upon conviction and
because of the certainty that he would be stigmatized by the
conviction. Accordingly, a society that values the good name
and freedom of every individual should not condemn a man
for commission of a crime when there is reasonable doubt
about his guilt.
In re Winship, 397 U.S. 358, 363–64, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d
368, 375 (1970). We reiterate the timeless principles underlying the
differing burdens of proof in civil and criminal proceedings:
“The rule of evidence requiring proof beyond a
reasonable doubt is generally applicable only in strictly
criminal proceedings. It is founded upon the reason that a
greater degree of probability should be required as a ground
of judgment in criminal cases, which affect life or liberty,
than may safely be adopted in cases where civil rights only
are ascertained. It often happens that civil suits involve the
proof of acts which expose the party to a criminal
prosecution. Such are proceedings under the statute for the
maintenance of bastard children, proceedings to obtain a
divorce for adultery, actions for assaults, actions for criminal
conversation or for seduction, and others which might be
named. And in such actions, which are brought for the
21
determination of civil rights, the general rule applicable to
civil suits prevails, that proof by a reasonable preponderance
of the evidence is sufficient.”
United States v. Regan, 232 U.S. 37, 49, 34 S. Ct. 213, 217, 58 L. Ed.
494, 499 (1914) (citation omitted) (quoting Roberge v. Burnham, 124
Mass. 277, 278 (1878)).
Accordingly, on remand, the district court shall instruct the jury
using the civil preponderance-of-the-evidence standard to determine
whether the acts or omissions of a City employee or officer constitute
manslaughter, a criminal offense avoiding the immunity defense in Iowa
Code section 670.4(12).
VII. Disposition.
We reverse the district court’s granting of summary judgment
because a violation of the administrative rules and the crime of
manslaughter relied upon by the parents are criminal offensives
exempting them from the immunity provided by Iowa Code section
640.12(4). We affirm the district court’s dismissal of the due process
claim because after submission of this case to our court the parents
withdrew their argument concerning the claim. Therefore, we affirm in
part and reverse in part the decision of the district court granting
summary judgment to the City. We remand the case back to the district
for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND CASE
REMANDED WITH INSTRUCTIONS.
All justices concur except Waterman, J., Cady, C.J., and
Mansfield, J., who concur in part and dissent in part.
22
#13–1438, Sanon v. City of Pella
WATERMAN, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part. I join the majority
opinion except for division IV. I disagree with the majority’s conclusion
that a violation of pool regulations promulgated by the Iowa Department
of Public Health (department) constitutes a “criminal offense” defeating
the statutory immunity provided under Iowa Code section 670.4(12)
(2009). 7 The majority reaches the wrong conclusion by relying on the
wrong statute, Iowa Code section 135.38, and a tortured analysis of
ancient legislative history. I would instead affirm the district court’s
summary judgment ruling based on the operative statutory text and our
rules of interpretation, as the court of appeals did in Larsen v. City of
Reinbeck, No. 09–0613, 2009 WL 3064658, at *2 (Iowa Ct. App. Sept. 17,
2009) (affirming summary judgment dismissing claims arising out of
accidental drowning at city pool). The legislature provided separate
remedies in separate chapters, and Iowa Code chapter 135I governs
swimming pools. The legislature enacted chapter 135I in the same bill as
the corresponding immunity provision, section 670.4(12), and restricted
liability claims in order to promote aquatic recreational opportunities for
Iowans. See 1989 Iowa Acts ch. 291 (codified at Iowa Code §§ 135I.1–.6,
§ 25A.14(13), § 613A.4(12) (1991)). As the district court and Larsen
court concluded, the legislature chose to criminalize only statutory
violations, not violations of the department’s regulations. See Larsen,
2009 WL 3064658, at *2.
7Thisprovision is now located in Iowa Code section 670.4(1)(l) (2015). Unless
otherwise noted statutory citations, like in the majority opinion, will be to the 2009
Code.
23
Our court should not rewrite statutes to alter policy choices made
by our elected legislators. The majority opinion will allow unelected
bureaucrats to expand criminal and civil liability for lifeguards and pool
operators and will make it costlier for cities and schools to keep
swimming pools open. Some pools may close as liability insurance costs
climb. I invite the legislature to take a fresh look at the scope of tort
immunity for municipal swimming pools in light of today’s decision.
I. Additional Facts.
Before these tragic drownings, the City had rented its pool for
nighttime events twenty to thirty times a year with the underwater lights
left off, without incident. The summary judgment record is silent as to
why these teenage boys who could not swim went down the waterslide
into the deep end, or why the sports camp operator, the Fellowship of
Christian Athletes, failed to inform the City that it was bringing
nonswimmers to the pool party.
The immunity provided under section 670.4(12) applies to
swimming pools subject to inspection programs. The record establishes
the department annually inspected the City’s pool before and after the
accidental drownings on July 14, 2010. The inspection the year before
the drownings noted eight deficiencies: misplaced signs for the lazy river
and slide, inadequate records for operations and equipment, an
improperly placed water inlet, a gap in a fabric fence, an improperly
placed grate under the slides, unfinished floor grading under fenced
areas, and unregistered lazy river and waterslides. The City addressed
all of these deficiencies within thirty days. The department inspected the
pool again that August and noted two deficiencies: a missing slide pad
and improperly spaced boundary buoy lines. The department approved a
plan to address those deficiencies. The last inspection before the
24
drowning deaths was August 18, 2009, and noted only a single
deficiency: the boundary line buoys were again improperly spaced. None
of these inspections raised a concern about water clarity or the
underwater lighting.
The department next inspected the pool on July 22, 2010, eight
days after the drownings. The inspection revealed six deficiencies:
incomplete records on pool chemistry, incomplete records on drain
covers, fading paint, insecure ladders, deficient labeling of chemical
containers, and a gap near the gate by the lazy river. None of the
department’s inspections addressed the adequacy of the overhead
lighting or water clarity, or the use of underwater lighting. The City
never received a citation for murky water or insufficient lighting.
II. Violations of the Department’s Swimming Pool Regulations
Are Not Criminal Offenses that Defeat the Statutory Immunity.
The majority opinion rests on a false assumption that the
department’s swimming pool regulations were promulgated under
chapter 135 rather than chapter 135I. The pool regulations at issue, 8
however, indicate they are promulgated under chapter 135I, entitled
“Swimming Pools and Spas.” So, the majority starts out on the wrong
8The regulations state:
Water clarity. A swimming pool that is less than 8 ft deep shall be closed
if the grate openings on the main drain are not clearly visible from the
deck. A swimming pool that is 8 ft deep or deeper shall be closed if the
main drain is not clearly visible from the deck.
Iowa Admin. Code r. 641—15.4(2)(c) (135I).
Artificial lighting shall be provided at a swimming pool which is to be
used at night or which does not have adequate natural lighting so that
all portions of the swimming pool, including the bottom and main drain,
may be clearly seen.
Iowa Admin. Code r. 641—15.4(4)(m)(2)(1) (135I).
25
foot. This matters because chapter 135 includes a provision that
criminalizes violations of “rules of the department,” see Iowa Code
§ 135.38, while chapter 135I does not. To the contrary, chapter 135I
criminalizes violations of the statute alone, not the implementing
regulations promulgated by the department. Id. § 135I.5. To get to its
desired result, the majority concludes that the “rules” referenced in
section 135.38 include any rules the department issues, not only under
chapter 135 but also any other chapter administered by the department.
The problem is that each relevant, subsequent chapter contains its own
penalty provision, and the majority’s interpretation of section 135.38
results in redundancies and conflicts between the statutes. By contrast,
the interpretation used by the Larsen court and district court harmonizes
the statutes without any redundancy or conflict.
Larsen is directly on point. See Larsen, 2009 WL 3064658, at *1.
In Larsen, a minor child drowned at a swimming pool owned and
operated by a municipality. Id. The parents of the child argued, as
plaintiffs do here, that under section 135.38, violations of the rules of the
department are “generally punishable as simple misdemeanors in its
area of authority, including that involving public swimming pools under
Chapter 135I.” Id. at *2. The Larsen court disagreed, holding that
section 135.38 only criminalizes violations of “this chapter” and “rules of
the department,” that is, the rules implementing chapter 135, 9 not rules
promulgated under separate chapters such as 135I. Id. The Larsen
court noted the other chapters administered by the department contain
separate penalty provisions. Id.; see, e.g., Iowa Code § 136B.5 (“A person
9Chapter135 contains a number of specific programs administered by the
department, such as lead abatement, newborn hearing screening, and treatment of
problem gamblers.
26
who violates a provision of this chapter is guilty of a serious
misdemeanor.”); id. § 136C.4(1) (“It is unlawful to operate or use
radiation machines or radioactive material in violation of this chapter or
of any rule adopted pursuant to this chapter. Persons convicted of
violating a provision of this chapter are guilty of a serious
misdemeanor.”). The Larsen court concluded that section 135.38 was
inapplicable to swimming pool regulations promulgated under chapter
135I. Larsen, 2009 WL 3064658, at *2. I reach the same conclusion.
The majority fails to address the conflicts between statutory
provisions resulting from its interpretation. For example, Iowa Code
chapter 136C governs radiation machines and radioactive materials and
is administered by the department. Section 136C.4 provides that a
violation of a department rule is a serious misdemeanor, while under
section 135.38 it would merely be a simple misdemeanor. Chapter 136D
governs tanning facilities and authorizes the department to adopt rules.
Iowa Code § 136D.7. The penalty provision, section 136D.9, 10 allows
only a civil penalty for violating the department’s rules, while the
majority’s interpretation of section 135.38 adds a criminal misdemeanor
penalty. We could avoid these conflicts between the statutes by
construing the penalty provision in each chapter to apply to rules
promulgated by the department under that chapter. We are to favor
interpretations that avoid conflicts between statutes. See K & W Elec.,
Inc. v. State, 712 N.W.2d 107, 114–15 (Iowa 2006).
The majority also fails to address the redundancies that result
from its interpretation of section 135.38. For example, chapter 138,
administered by the department, governs health inspections of migrant
10Added by 2012 Iowa Acts ch. 1113, § 30.
27
labor camps. Section 138.19 expressly provides that a violation of the
department’s rules issued under the chapter is a simple misdemeanor.
Iowa Code § 138.19. Chapter 139A, also administered by the
department, governs reporting requirements for communicable diseases.
The penalty provision similarly provides that a violation of the
department’s rules is a simple misdemeanor. See id. § 139A.25(1).
Those provisions become surplusage under the majority’s interpretation
of section 135.38. We are to avoid interpretations that render statutory
language superfluous. See Thomas v. Gavin, 838 N.W.2d 518, 524 (Iowa
2013) (“Normally we do not interpret statutes so they contain
surplusage.”); see also Iowa Code § 4.4(2) (“The entire statute is intended
to be effective.”).
No such problems accompany the statutory interpretation of the
Larsen court and district court, which applied the plain language of the
operative provisions, sections 135I.5 and section 670.4(12). The
legislature enacted chapter 135I in the same bill that enacted the
swimming pool immunity provision in section 670.4(12). 1989 Iowa Acts
ch. 291, §§ 1–6, 8. The fact that the legislature created the immunity
provision in section 670.4(12) at the same time as the penalty provision
in section 135I.5 strengthens my conclusion that those statutes control
over section 135.38.
Chapter 135I of the Iowa Code specifically governs the
department’s regulation of swimming pools and spas. The pool
regulations at issue were promulgated under chapter 135I. The penalty
provision in this chapter states, “A person who violates a provision of this
chapter commits a simple misdemeanor. Each day upon which a
violation occurs constitutes a separate violation.” Iowa Code § 135I.5.
As the Larsen court observed, “this provision unambiguously
28
criminalizes violations of the statute alone. Unlike section 135.38, the
provision makes no mention of the implementing rules.” Larsen, 2009
WL 3064658, at *3 (citation omitted). I agree. The plain language of
section 135I.5 does not criminalize violations of the department’s rules
promulgated under that chapter.
“ ‘[L]egislative intent is expressed by omission as well as by
inclusion of statutory terms.’ ” Oyens Feed & Supply, Inc. v. Primebank,
808 N.W.2d 186, 193 (Iowa 2011) (alteration in original) (quoting
Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d 802, 812 (Iowa
2011)). When the legislature selectively places language in one section
and avoids it in another, we presume it did so intentionally. Id. Here,
section 135.38 includes language criminalizing violations of rules, but
section 135I.5 does not. The legislature knows how to criminalize
violations of the department’s rules. It did so for rules promulgated
under chapter 135, but not under chapter 135I.11 I conclude section
11Additional chapters of the Iowa Code administered by the department contain
penalty provisions specific to each chapter. See, e.g., Iowa Code § 142.11 (providing
that a statutory violation is an aggravated misdemeanor), id. § 142D.9 (providing civil
penalties and injunctive relief for statutory violations), id. § 144A.10 (providing that a
statutory violation is a serious misdemeanor). These examples reinforce our conclusion
that by 2009 the legislature had enacted separate penalty provisions for each chapter
administered by the department, which, like section 135I.5, are interpreted
independently of the penalty provision in section 135.38.
Other statutes governing public health and safety standards administered by a
different agency, the Iowa Department of Inspections and Appeals, further illustrate the
legislature’s contemporary practice of making separate policy choices for penalties
under each chapter. These include chapters 137C (Hotel Sanitation Code), 137D (Home
Food Establishments), and 137F (Food Establishments and Food Processing Plants).
Each chapter has its own unique penalty provision. Section 137C.28 provides that a
statutory violation is a simple misdemeanor, without criminalizing a violation of a rule
promulgated under that chapter. Id. § 137C.28 (“A person who violates a provision of
the Iowa hotel sanitation code shall be guilty of a simple misdemeanor. Each day upon
which a violation occurs constitutes a separate violation.”). By contrast, section 137D.3
criminalizes both violations of the statute and the department rules. Id. § 137D.3 (“A
person who violates a provision of this chapter, including a standard adopted by
departmental rule, . . . is guilty of a simple misdemeanor.”). Yet, another permutation
29
135I.5 is the more specific penalty provision and governs this case. See
Iowa Code § 4.7 (stating a specific provision controls over a conflicting
general provision); see also Christiansen v. Iowa Bd. of Educ. Exam’rs,
831 N.W.2d 179, 189 (Iowa 2013) (“[T]he more specific provision controls
over the general provision.”). If the legislature wanted to criminalize
violations of pool regulations, it would have said so in section 135I.5. It
did not.
We recently interpreted related statutes in Shumate v. Drake
University, 846 N.W.2d 503, 516 (Iowa 2014). In Shumate, the plaintiff
urged us to recognize an implied private right of action for service dog
trainers to sue for money damages under Iowa Code chapter 216C. Id. at
505. We declined to do so, noting the legislature expressly provided for a
private right to sue under chapters 216 and 216E, but not in chapter
216C. Id. at 512. We stated, “These closely related chapters
demonstrate that when the legislature ‘wished to provide a private
damage remedy, it knew how to do so and did so expressly.’ ” Id.
(quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 572, 99 S. Ct.
2479, 2487, 61 L. Ed. 2d 82, 93 (1979)). In those chapters, as here, the
legislature chose to set forth differing and specific remedy provisions for
each chapter. Specifically, the legislature expressly provided that under
chapter 135, violations of department rules are simple misdemeanors,
while under chapter 135I, it expressly criminalized only violations of the
statute, not the department’s rules. Cf. Iowa Code § 135.38, with id.
§ 135I.5. The majority fails to confront the foregoing statutory analysis.
is found in section 137F.17, which provides only a civil penalty for a violation of the
statute or a rule issued under that statute, without a criminal penalty. Id. § 137F.17
(“A person who violates this chapter or rules adopted pursuant to this chapter shall be
subject to a civil penalty of one hundred dollars for each violation.”).
30
The majority’s interpretation also undermines the purpose of the
immunity in section 670.4(12), which is to reduce the litigation risk
inherent in aquatic recreation and thereby encourage cities, counties,
and schools to open and operate swimming pools. See Baker v. City of
Ottumwa, 560 N.W.2d 578, 582 (Iowa 1997) (noting that “the legislature
enacted the swimming pool exemption ‘to foster community recreational
activities’ ”). We are to interpret statutes to effectuate, not undermine,
the legislative objective.
In determining legislative intent and reaching a reasonable
construction that will give effect to, rather than defeat, that
intent, we consider the statutory objective the legislature
desired to accomplish as well as the evils and mischiefs it
sought to remedy.
McCracken v. Iowa Dep’t of Human Servs., 595 N.W.2d 779, 784 (Iowa
1999). We have “characterized statutory immunities as having a broad
scope and we have given words used in such immunity statutes a broad
meaning.” Cubit v. Mahaska County, 677 N.W.2d 777, 784 (Iowa 2004)
(collecting cases broadly applying immunity provisions of section 670.4);
see also Walker v. Mlakar, 489 N.W.2d 401, 405 (Iowa 1992) (interpreting
narrowly statutory exception to common law immunity). “Immunity is
based upon the desire to ‘prevent judicial “second-guessing” of legislative
and administrative decisions grounded in social, economic, and political
policy through the medium of an action in tort.’ ” Graber v. City of
Ankeny, 656 N.W.2d 157, 160 (Iowa 2003) (quoting Goodman v. City of
LeClaire, 587 N.W.2d 232, 237 (Iowa 1998)). The majority’s
interpretation effectively second-guesses the legislative policy choice to
limit recovery rights in order to encourage aquatic recreational
opportunities. That is not our court’s role. The legislature’s policy
choice was reasonable—the immunity in section 670.4(12) is conditioned
31
upon submission to pool safety inspections with the inspectors
empowered to shut down pools operating in violation of the department’s
rules. See Iowa Code § 135I.6.
I share the City’s concern that criminalizing the department’s rules
regulating swimming pools undermines the liability protection in section
670.4(12). Liability risk has already led to the disappearance of three-
meter diving boards from most public swimming pools. See Greg Sobo,
Note, Look Before You Leap: Can the Emergence of the Open and Obvious
Danger Defense Save Diving from Troubled Waters?, 49 Syracuse L. Rev.
175, 176 (1998) (noting “the solemn reality that diving, both as a
recreational activity and as an amateur sport, is becoming extinct
because [of] tort law”). The department’s pool regulations are broad in
scope and extremely detailed, and a rule violation could be found in
many tort claims. 12
12The majority’s interpretation criminalizes a large number of technical
violations of a detailed regulatory scheme. For example, one rule provides, “Soap shall
be available at each lavatory and at each indoor shower fixture.” Iowa Admin. Code r.
641—15.4(5)(e) (135I). Should pool administrators face criminal charges and lose tort
immunity for failure to provide soap? The regulations also specify measurements for
various safety measures. Floats marking float lines need to be no more than five feet
apart, within twelve inches of the boundary between shallow and deep water. Id. r.
641—15.4(4)(i)(3) (135I). If float lines become slightly spread out from each other or the
line drifts an inch too far in the course of ordinary use, have the pool operators
committed a crime and lost statutory immunity? Likewise, depth markers must be
within three feet of the edge of a pool, no more than twenty-five feet from each other,
and at least four inches in height. Id. r. 641—15.4(4)(j) (135I). Should a number
misplaced by a half inch be a criminal offense?
The majority’s interpretation also leads to a strange inconsistency in the
enforcement of pH levels in a swimming pool. The regulations state, “The pH of
swimming pool water shall be 7.2 to 7.8. An inspection agency may require that a
swimming pool be closed if the pH is less than 6.8 or greater than 8.2.” Id. r. 641—
15.4(2)(b) (135I). If we follow the majority, it is a misdemeanor if the pH level is below
7.2 or above 7.8. Yet, an inspector may not close the pool for the health and safety of
swimmers unless the pH strays to less than 6.8 or greater than 8.2. Why should pool
administrators be subject to criminal penalties and tort liability for a pool with a pH
that temporarily reaches 7.1 or 7.9 while the pool is allowed to remain open?
32
Section 670.4 provides fifteen specific immunity provisions,
including the one at issue for state-inspected swimming pools:
The liability imposed by section 670.2 shall have no
application to any claim enumerated in this section. As to
any such claim, a municipality shall be liable only to the
extent liability may be imposed by the express statute
dealing with such claims and, in the absence of such express
statute, the municipality shall be immune from liability.
....
12. A claim related to a swimming pool or spa as
defined in section 135I.1 which has been inspected by a
municipality or the state in accordance with chapter 135I, or
a swimming pool or spa inspection program which has been
certified by the state in accordance with that chapter,
whether or not owned or operated by a municipality, unless
the claim is based upon an act or omission of an officer or
employee of the municipality and the act or omission
constitutes actual malice or a criminal offense.
Iowa Code § 670.4(12) (emphasis added). Plaintiffs do not allege the acts
or omissions of the City’s employees constituted actual malice. The
majority broadly interprets the criminal-offense exception, contrary to
our rule of interpretation that exceptions to statutory immunity
provisions are narrowly construed. See Cubit, 677 N.W.2d at 784;
Walker, 489 N.W.2d at 405.
We addressed the scope of the immunity for state-inspected
swimming pools in Baker, 560 N.W.2d at 581–83, a case the majority
fails to cite, much less analyze. In Baker, the City of Ottumwa owned
and operated a municipal water park that had featured a “200’ Speed
Slide” with an eighty-foot, near-vertical plunge. Id. at 581. Joe Baker,
age nineteen, rapidly descended the slide just as Aaron Dannull, age
twelve, stuck his foot onto the bottom of the flume to test the water
temperature. Id. Dannull was standing in an unauthorized area; “the
lifeguard stationed at the bottom of the slide evidently was not paying
attention.” Id. Dannull’s heel struck Baker’s eye, fracturing his orbital
33
bone. Id. Baker sued the City, which moved for summary judgment
based on section 670.4(12). Id. The district court granted the City’s
motion, and Baker proceeded to trial against Dannull. Id. The jury
found Dannull at fault, Baker free of fault, and rejected Dannull’s
defense that the City’s fault was the sole proximate cause of Baker’s
damages. Id. Baker appealed, and Dannull cross-appealed, both
contending the jury should have been allowed to assign a percentage of
fault to the City. Id.
We relied on the broad language of section 12 to hold the City’s
immunity applied to negligent lifeguards:
Baker’s first argument—that the exemption relates to
health standards, not negligent lifeguards—is defeated by
the broad language of section 670.4(12). By its very terms,
the exemption applies to any “act or omission” that falls
short of actual malice or crime. This language precludes
Baker’s attempt to narrow the statute’s focus. Nothing in
the statute immunizes negligence in the performance of pool
inspections while preserving claims against negligent
lifeguards. Clearly the suit before us fits the broad
classification of “claim relating to a swimming pool,” and the
district court was correct in so ruling.
Id. at 582 (citations omitted) (quoting Iowa Code § 670.4(12)). We
rejected Baker’s constitutional challenge, concluding the legislature had
a rational basis to deny recovery to victims of swimming pool accidents,
but not those injured in other forms of recreation. Id. We affirmed the
district court’s summary judgment for the City. Id. at 582–83. The
broad liability protection our court recognized in Baker is now
eviscerated by the majority’s holding that violations of pool regulations
defeat the statutory immunity.
Another problem with the majority’s interpretation is that it
exposes municipal lifeguards and pool managers to criminal charges for
a violation of the department’s regulations. See Iowa Code § 903.1(1)(a)
34
(allowing incarceration up to thirty days upon conviction of a simple
misdemeanor). We recently reiterated that we must consider the
consequences of different interpretations when construing a statute.
State v. Hoyman, 863 N.W.2d 1, 13 (Iowa 2015); see also Iowa Code
§ 4.6(5) (allowing the court to consider “[t]he consequences of a particular
construction”). To impose criminal sanctions based on the ambiguous
language of section 135.38 would violate the rule of lenity, “which directs
that criminal statutes are to be strictly construed in favor of the
accused.” State v. Hearn, 797 N.W.2d 577, 585 (Iowa 2011).
Instead of employing our usual methods of statutory
interpretation, the majority relies on the legislative history of chapter 135
in 1923 and 1933. It is true that “[w]e also consider the legislative
history of a statute, including prior enactments, when ascertaining
legislative intent.” Doe v. Iowa Dep’t of Human Servs., 786 N.W.2d 853,
858 (Iowa 2010). However, our starting place is the text of the statute.
In re Marriage of Thatcher, ___ N.W.2d ___, ___ (Iowa 2015). We next
apply our rules of interpretation, particularly those codified by the
legislature to guide the interpretation of its enactments. See Iowa Code
§ 4.4. Only then should we turn to legislative history. The majority pays
lip service to these general rules of statutory interpretation, yet relies
solely on that legislative history of chapter 135 from over eight decades
ago.
In my opinion, that legislative history fails to support the majority’s
interpretation. The legislature amended the statute into its current form
in the 1923–1924 extraordinary session. In the 1924 Iowa Code, what is
now section 135.38 was located in chapter 105 of Title VII and read in
full:
35
Any person who knowingly violates any provision of this
chapter, or of the rules of the department, or any lawful
order, written or oral, of the department or of its officers, or
authorized agents, shall be guilty of a misdemeanor.
Iowa Code § 2217 (1924). Notably, each of the subsequent chapters
within Title VII had its own penalty provision. 13 For example, section
2279 specifically provided that a violation of the rules of the department
was a misdemeanor. That language would be surplusage if section 2217
applied to all rules promulgated by the department. The majority
overlooks that flaw in its historical analysis.
There are other flaws in its theory being ignored by the majority.
Specifically, in Title VIII of the 1924 Iowa Code regulating particular
professions, chapter 115 contained a penalty provision stating, “Any
person violating any provision of this or the following chapters of this title
shall be fined . . . or be imprisoned in the county jail.” Id. § 2522. None
of the subsequent chapters in Title VIII contained its own penalty
provision, unlike Title VII. Thus, the legislature in 1924 knew how to
13See Iowa Code § 2279 (ch. 108, Contagious and Infectious Diseases, “Penalty.
Any person who knowingly violates any provision of this chapter, or of the rules of the
state department or the local board, or any lawful order, written or oral, of said
department or board, or of their officers or authorized agents, shall be guilty of a
misdemeanor.”); id. § 2316 (ch. 109, Venereal Diseases, “Penalty. Any person violating
any of the provisions of this chapter shall be punished by a fine of not more than five
hundred dollars, or by imprisonment in the county jail for a period not to exceed six
months, or by both such fine and imprisonment.”); id. § 2350 (ch. 110, Disposal of
Dead Bodies, “Penalty. Any person who shall violate any provision of this chapter shall
be fined not less than five dollars nor more than one hundred dollars, or be imprisoned
not more than thirty days in the county jail, or be punished by both such fine and
imprisonment.”); id. § 2361 (ch. 111, Dead Bodies for Scientific Purposes, “Penalties.
Any person who shall receive or deliver any dead body of a human being knowing that
any of the provisions of this chapter have been violated, shall be imprisoned in the
penitentiary not more than two years, or fined not exceeding twenty-five hundred
dollars, or both.”); id. § 2383 (ch. 113, Maternity Hospitals, “Penalty. Any person
violating any of the provisions of this chapter or making any false entry on the register
required to be kept by this chapter shall be punished by a fine of not more than two
hundred fifty dollars, or by imprisonment in the county jail not more than six months,
or by both such fine and imprisonment.”).
36
enact specific penalty provisions for each chapter when it chose to or
alternatively provide that the penalty provision in the first applied to
subsequent chapters within the same title. I conclude from this
comparative analysis of Title VII and Title VIII that the 1924 version of
section 135.38, section 2217, criminalized violations of rules
promulgated under that chapter alone. See Shumate, 846 N.W.2d at
512–13 (using comparative analysis of related statutes to determine
legislative intent based on selective placement of operative language).
If the legislature wanted section 135.38 to criminalize violations of
all department rules, including those promulgated under other chapters,
it could have added the phrase, “or the following chapters,” as it did in
section 2522 in 1924. The omission of that phrase in section 135.38
tells us that provision criminalizes only the violation of “the rules of the
department” promulgated under chapter 135, not other chapters.
The majority next relies on an amendment the legislature made to
the statute in 1933 regarding rules for cosmetology. Iowa Code § 2217
(1935). Cosmetology was covered in a separate chapter of the Code, so
the majority draws an inference that section 2217 was meant to apply
across multiple chapters. Whatever force that inference might have had
then was eliminated when the legislature amended the statute to its
current form in 1976 to remove the reference to cosmetology and
barbering as part of a general overhaul of Iowa’s criminal code. 1976
Iowa Acts ch. 1245, ch. 4, § 137. The more telling legislative history,
ignored by the majority, is the simultaneous enactment in 1989 of the
controlling statutory provisions specifically governing swimming pools
and immunity for their operation, sections 135I.5 and 670.4(12). 1989
Iowa Acts ch. 291, §§ 5, 8. Reading those provisions together with
section 135.38 and applying the rule of section 4.7 (the specific controls
37
over the general), in my view, trumps the conflicting inferences to be
drawn from the evolving and murky legislative history of the general
language in section 135.38.
Finally, the majority relies on the history of the provision in
chapter 135 that authorizes the department to establish rules:
[T]he “Iowa Department of Public Health” . . . shall:
....
13. Establish, publish, and enforce rules not
inconsistent with law for the enforcement of the provisions of
chapters 125 and 155, and Title IV, subtitle 2, excluding
chapter 146 and for the enforcement of the various laws, the
administration and supervision of which are imposed upon
the department.
Iowa Code § 135.11(13) (2009) (emphasis added). 14
Plaintiffs never cited or relied on this provision in district court or
in this appeal. The majority draws inferences from the timing of its
enactment that preceded the enactment of chapter 17A, the Iowa
Administrative Procedure Act. Notably, however, the majority overlooks
the limiting principle built into this enabling provision: the rules enacted
by the department must not be “inconsistent with law.” Id. Nothing in
the provision itself authorizes the department to expand criminal liability
without legislative authorization. Certainly, the provision does not
authorize the department to issue a rule in conflict with a statute the
department administers. 15 Here, the controlling statute, section 135I.5,
14This provision is now codified at section 135.11(12) (2015).
15We have said:
Agency rules are ordinarily given the force and effect of law, provided
they are reasonable and consistent with legislative enactments.
However, agencies have no inherent power and [have] only such
authority as [they are] conferred by statute or is necessarily inferred from
the power expressly granted. To be valid, a rule adopted by an agency
must be within the scope of powers delegated to it by statute. When
38
imposes criminal liability solely for statutory violations, not rule
violations. The majority’s interpretation allows the department to expand
criminal liability by rule beyond what the legislature authorized and
thereby defeat the immunity protection the legislature intended.
III. Negligent Supervision Claim.
The majority fails to address another issue in plaintiffs’ appeal:
whether the statutory immunity applies to negligent supervision claims.
The district court correctly ruled that such claims are subject to the
immunity in section 670.4(12), and I would affirm that ruling.
rules adopted by an administrative agency exceed the agency’s statutory
authority, the rules are void and invalid.
Wallace v. Iowa State Bd. of Educ., 770 N.W.2d 344, 348 (Iowa 2009) (alterations in
original) (citations omitted) (internal quotation marks omitted); see also Jasper v.
H. Nizam, Inc., 764 N.W.2d 751, 764 (Iowa 2009) (“[R]egulations are required to be
consistent with the underlying broader statutory enactment.”); Dunlap Care Ctr. v. Iowa
Dep’t of Soc. Servs., 353 N.W.2d 389, 397 (Iowa 1984) (“Rules which contravene
statutory provisions or exceed an agency’s statutory authority are invalid.”); Sorg v.
Iowa Dep’t of Revenue, 269 N.W.2d 129, 131 (Iowa 1978) (“Adoption of administrative
rules which are at variance with statutory provisions or which amend or nullify
legislative intent exceeds the Department’s authority.”); Iowa Dep’t of Revenue v. Iowa
Merit Emp’t Comm’n, 243 N.W.2d 610, 615 (Iowa 1976) (“[T]he plain provisions of the
statute cannot be altered by an administrative rule or regulation . . . .”). The plaintiffs
point to the general authorization the legislature gives agencies in section 17A.22, as
well as the department’s authority to promulgate rules to implement chapter 135I found
in section 135I.4(5). We have said that a general authorization of power “does not grant
to an administrative agency unlimited power to regulate matters within the agency’s
expertise.” Wallace, 770 N.W.2d at 348. These general grants of authority do not allow
the department to create new crimes not authorized by the general assembly.
In Gartner v. Iowa Department of Public Health, we held the department lacked
interpretive authority as to the vital records statute, noting the “legislature did not
expressly authorize the Department to interpret section 144.13(2).” 830 N.W.2d 335,
343 (Iowa 2013); but see Birchansky Real Estate, L.C., v. Iowa Dep’t of Pub. Health, 737
N.W.2d 134, 138 (Iowa 2007) (holding department had interpretive authority as to
certificate-of-need statute, Iowa Code § 135.62(2)(d), based on rulemaking authority in
section 135.72(1) to enable the department to implement that provision). I conclude,
based on the more recent precedent, that the legislature did not vest the department
with authority to interpret section 135I.5. Accordingly, we owe no deference to the
department’s interpretation. See Gartner, 830 N.W.2d at 343–44.
39
Plaintiffs rely solely on the dissenting opinion in Dang ex rel. Dang
v. Des Moines Cmty. Sch. Dist., No. 08–1578, 2009 WL 1708827, at *2–3
(Iowa Ct. App. June 17, 2009) (Sackett, C.J., dissenting). In Dang, an
eleven-year-old child suffered permanent brain damage after nearly
drowning at a pool party for sixth graders held in Hoover High School’s
swimming pool. Id. at *1 (majority opinion). The child’s parents sued,
alleging that the school district was grossly negligent in supervising the
children, and the district court granted the district’s motion for summary
judgment based on section 670.4(12). Id. The dissent concluded that
Baker was distinguishable because the claim in Dang was not about the
safety of the pool itself, but turned on the negligence of the school in
allowing the child to enter the pool without adequate swimming skills.
Id. at *3 (Sackett, C.J., dissenting). The majority, however, concluded:
Clearly the suit before us, like that in Baker, fits the
broad classification of a “claim relating to a swimming pool.”
The plaintiffs’ attempts to distinguish Baker from the facts
presented here are unavailing. The district court was
therefore correct in concluding the defendants were
immunized from the liability imposed by section 670.2 under
the exemption contained in section 670.4(12).
Id. at *2 (majority opinion) (footnote omitted) (citations omitted). I agree
with the Dang majority that Baker is dispositive. Section 670.4 is a
broad grant of immunity for claims relating to swimming pools intended
to encourage community recreation and safety. Baker, 560 N.W.2d at
582. In Baker, we rejected the plaintiff’s attempt to distinguish health
standards for swimming pools from the negligence of lifeguards. Id.
For all these reasons, I dissent from division IV of the majority
opinion.
Cady, C.J., and Mansfield, J., join this concurrence in part and
dissent in part.