Iowa Ass'n of Business & Industry v. City of Waterloo, The Waterloo Commission on Human Rights, and Martin M. Peterson, in His Official Capacity

IN THE SUPREME COURT OF IOWA

No. 20–0575

Submitted April 14, 2021—Filed June 18, 2021

Amended August 31, 2021

IOWA ASSOCIATION OF BUSINESS AND INDUSTRY,

Appellant,

vs.

CITY OF WATERLOO, THE WATERLOO COMMISSION ON HUMAN

RIGHTS, and MARTIN M. PETERSON, in His Official Capacity,

Appellees.

Appeal from the Iowa District Court for Black Hawk County,

John Bauercamper, Senior Judge.

A trade association appeals a declaratory judgment that a city “ban

the box” ordinance is not preempted by state law. AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.

Mansfield, J., delivered the opinion of the court, in which

Christensen, C.J., and Appel, Waterman, and Oxley, JJ., joined.

McDonald, J., filed an opinion concurring in part and dissenting in part.

McDermott, J., took no part in the consideration or decision of the case.

Ryan G. Koopmans (argued) of Belin McCormick, P.C., Des Moines,

for appellant.

Timothy C. Boller (argued) of Weilein & Boller, P.C., Cedar Falls, for

appellees.

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David S. Walker, Windsor Heights, and Russell E. Lovell II, Des

Moines, for amicus curiae NAACP.

Shefali Aurora and Rita Bettis Austen, Des Moines, for amicus

curiae ACLU of Iowa; Leonard Bates of Newkirk Zwagerman, Des Moines,

and Melissa C. Hasso of Sherinian & Hasso Law Firm, Des Moines, for

amicus curiae Iowa Chapter of the National Employment Lawyers

Association; and Elizabeth L. Avery, Berkeley, California, for amicus

curiae National Employment Law Project.

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MANSFIELD, Justice.

Suppose a park had a sign posted at the entrance: “No motorized

vehicles allowed, including cars, motorcycles, scooters, and other

motorized vehicles.” Would we conclude that this sign prohibited a child

from pushing her old-fashioned, nonmotorized scooter around the park?

We think not.

This case, in our view, presents a similar interpretive problem. In

2017, the legislature adopted a statute that prohibits cities from

adopt[ing], enforce[ing], or otherwise administer[ing] an

ordinance, motion, resolution, or amendment providing for

any terms or conditions of employment that exceed or conflict

with the requirements of federal or state law relating to a

minimum or living wage rate, any form of employment leave,

hiring practices, employment benefits, scheduling practices,

or other terms or conditions of employment.

2017 Iowa Acts ch. 20, § 4 (codified at Iowa Code § 364.3(12)(a) (2018)).

Does this statute prohibit cities from independently regulating all hiring

practices, or only from regulating those hiring practices that amount to

terms and conditions of employment?

The difference matters here because we are asked to decide the

impact of the 2017 law on a 2019 Waterloo “ban the box” ordinance. The

ordinance regulates the time when an employer can inquire into a

prospective employee’s criminal history. It also regulates whether an

employer can consider the employee’s criminal history at all in making a

hiring decision. The district court found that no part of the ordinance was

preempted. For the reasons discussed herein in more detail, we conclude

that the ordinance is preempted to the extent it purports to regulate

whether an employer can consider an employee’s criminal history at all—

i.e., to the extent it regulates a term and condition of employment.

However, it is not preempted where it only regulates timing, because that

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is not a term or condition of employment. Accordingly, we affirm in part,

reverse in part, and remand for further proceedings.

I. Facts and Procedural Background.

On November 4, 2019, the City of Waterloo (the City) voted to enact

Ordinance 5522. This ordinance covers two topics: (1) when an employer

can inquire into an applicant’s criminal history, and (2) whether the

employer can consider that criminal history in making its hiring

decisions.1

Abraham Funchess, the director of the Waterloo Commission on

Human Rights (WCHR), submitted an affidavit that provided background

information on Waterloo’s ordinance. Shortly after taking office in 2010,

Funchess began looking at “ban the box” as a way to reduce discrimination

within Waterloo. “Ban the box” is the colloquial term for a measure that

limits employer inquiries into the criminal histories of prospective

employees.

Waterloo has the highest African-American population, at sixteen

percent, of any city in the state. African-Americans and other persons of

color are disproportionately represented in the criminal justice system, not

only in the United States generally but more specifically in Waterloo.

Funchess was “concerned that this disparity could lead to discriminatory

employment practices when an applicant’s criminal history was

considered.” Funchess had also heard personal anecdotes from persons

of color about the difficulty they were encountering in obtaining

employment if they had a criminal record.

1“[B]an-the-box laws differ widely from one jurisdiction to the next.” Dallan F.

Flake, Do Ban-the-Box Laws Really Work? 104 Iowa L. Rev. 1079, 1089 (2019). “In

addition to delaying the criminal record inquiry, many ban-the-box laws go further by

limiting what an employer can do with criminal background information once it is

obtained.” Id. Waterloo’s ordinance is of this nature.

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The WCHR decided to present a proposed ordinance to the Waterloo

city council for consideration. An outside attorney was commissioned to

draft the ordinance. He surveyed “ban the box” ordinances that had been

adopted in other cities and also received assistance from a national

organization.

The proposed Waterloo ordinance was initially presented and

discussed at the August 26, 2019 Waterloo city council meeting. It was

later amended and received its third reading and final approval by a 4–3

vote on November 4.

As enacted, Ordinance 5522 prohibits all employers in Waterloo

from asking about criminal history on a job application. Waterloo, Iowa,

Code of Ordinances § 5-3-15(B) (current through June 1, 2020). It also

bars employers with fifteen or more employees from making any inquiry

into an applicant’s criminal history until a conditional offer of employment

has been made. Id. § 5-3-15(B)(1). Additionally, Ordinance 5522 prohibits

employers with fifteen or more employees from making an adverse hiring

decision based solely on arrests or pending criminal charges that have not

resulted in a conviction, criminal records that have been expunged or are

the subject of a pardon, or criminal records without a “legitimate business

reason.” Id. § 5-3-15(B)(2)–(4).

The term “legitimate business reason” is defined in detail elsewhere

in the ordinance. Id. § 5-3-15(A). It includes: (1) “[s]ituations where the

nature of the criminal conduct has a direct and substantial bearing on the

fitness or ability to perform the duties or responsibilities of the intended

employment,” (2) “[s]ituations where the granting of employment would

involve unreasonable risk of substantial harm to property or to safety of

individuals or the public, or to business reputation or business assets,”

(3) “[p]ositions working with children, developmentally disabled persons

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and vulnerable adults where the applicant has a conviction record of a

crime against children or disabled or vulnerable adults,” and

(4) “[s]ituations where an employer must comply with any federal or state

law or regulation pertaining to background checks and the criminal

conduct is relevant to the applicant’s fitness for the job.” Id. Other than

in these four situations, an employer cannot refuse to hire an employee

based on the employee’s criminal record. Id. § 5-3-15(B)(4).

While Ordinance 5522 was under consideration, but before it had

been adopted, the Iowa Association of Business and Industry (ABI) wrote

the entire Waterloo city council in October 2019. ABI is the largest

statewide business organization with more than 1500 member businesses

employing 330,000 Iowans, including thousands in Waterloo. ABI’s

correspondence maintained that Ordinance 5522 violated Iowa Code

section 364.3(12)(a) (2020), which limits the ability of cities to regulate

employment terms and conditions.

After the ordinance received its final approval from the city council

on November 4, ABI immediately filed suit in the Black Hawk County

District Court against the City, the WCHR, and the city attorney in his

official capacity. ABI’s petition sought injunctive and declaratory relief on

the ground that the ordinance violated the aforementioned state law.

The parties submitted cross-motions for summary judgment. On

March 27, with the COVID pandemic having descended on our state, the

district court conducted a telephonic oral argument on the motions. On

April 4, the district court entered its summary judgment ruling.

Preliminarily, the court determined that ABI had associational

standing to assert the rights of its members. However, on the merits, the

court ruled that the ordinance did not violate Iowa Code section

364.3(12)(a). The district court concluded that ABI’s preemption argument

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required it to reconcile section 364.3(12)(a) with another provision of state

law—namely, section 216.19(1)(c) of the Iowa Civil Rights Act (ICRA). The

court then found that Ordinance 5522 was “consistent with the authority

given to cities” by section 216.19(1)(c) to prohibit a broader range of

discriminatory practices under local civil rights ordinances. Thus, the

court granted the defendants’ motion, denied ABI’s motion, and upheld

the legality of the ordinance.

ABI appealed, and we retained the appeal.

II. Standard of Review.

Generally, we review a district court’s ruling on summary judgment

on for correction of errors at law. Weizberg v. City of Des Moines, 923

N.W.2d 200, 211 (Iowa 2018). “Summary judgment is appropriate when

the record shows no genuine issues of material fact and the moving party

is entitled to judgment as a matter of law.” Petro v. Palmer Coll. of

Chiropractic, 945 N.W.2d 763, 769 (Iowa 2020) (quoting Munger,

Reinschmidt & Denne, L.L.P. v. Lienhard Plante, 940 N.W.2d 361, 365 (Iowa

2020)).

III. Legal Analysis.

A. Ordinance 5522 and Iowa Code Section 364.3(12)(a).

Waterloo Ordinance 5522 provides in part,

B. Prohibited Use Of Criminal Record Information: In

connection with the employment of any person, it shall be an

unlawful discriminatory practice for an employer to include a

criminal record inquiry on any application. It shall further be

an unlawful discriminatory practice for an employer who

employs fifteen (15) or more persons, but not private schools

providing a regular course of instruction for any part of

kindergarten through high school education, to engage in any

of the following activity:

1. To make any inquiry regarding, or to require any

person to disclose or reveal, any convictions, arrests, or

pending criminal charges during the application process,

including but not limited to any interview. The application

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process shall begin when the applicant inquires about the

employment being sought and shall end when an employer

has extended a conditional offer of employment to the

applicant. If the applicant voluntarily discloses any

information regarding his or her criminal record at the

interview, the employer may discuss the criminal record

disclosed by the applicant.

2. To make an adverse hiring decision based solely on the

applicant’s record of arrests or pending criminal charges that

have not yet resulted in a conviction.

3. To make an adverse hiring decision based on any

criminal records which have been lawfully erased or

expunged, which are the subject of an executive pardon, or

which were otherwise legally nullified.

4. To make an adverse hiring decision based on an

applicant’s criminal record without a legitimate business

reason.

Waterloo, Iowa, Code of Ordinances § 5-3-15(B).

Thus, the ordinance contains two types of restrictions. In the first

sentence of section (B) and in subsection (1), the ordinance imposes

procedural limits on employers. That is, it defers the employer’s ability to

make certain types of “inquiry” until after the employer extends a

conditional offer of employment. See id. at § 5-3-15(B), (B)(1). In

subsections (2), (3), and (4), the ordinance sets forth substantive

restrictions. These paragraphs forbid the employer from making an actual

“adverse hiring decision” for certain reasons. See id. at § 5-3-15(B)(2)–(4).

Under the Iowa Constitution and laws, cities are generally granted

home rule authority to enact ordinances “not inconsistent with the laws of

the general assembly.” Iowa Const. art. III, § 38A; Iowa Code § 364.1.

However, Iowa Code section 364.3 sets forth a number of limitations on

the powers of cities.

ABI insists that Ordinance 5522 is preempted by one such

limitation—Iowa Code section 364.3(12)(a). This particular subsection

became law in 2017 and provides,

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A city shall not adopt, enforce, or otherwise administer

an ordinance, motion, resolution, or amendment providing for

any terms or conditions of employment that exceed or conflict

with the requirements of federal or state law relating to a

minimum or living wage rate, any form of employment leave,

hiring practices, employment benefits, scheduling practices,

or other terms or conditions of employment.

2017 Iowa Acts ch. 20, § 4 (codified at Iowa Code § 364.3(12)(a) (2018)).

ABI, quoting Iowa Code section 364.3(12)(a), maintains that all five of the

restrictions in Ordinance 5522 are “terms or conditions of employment

that exceed or conflict with the requirements of federal or state law relating

to . . . hiring practices . . . or other terms or conditions of employment.”

Therefore, according to ABI, the entire ordinance is preempted.

B. Iowa Code Section 216.19(1)(c). The district court found that

Iowa Code section 364.3(12)(a) did not control this case because the City

could derive legal authority for the ordinance from another provision of

state law, section 216.19(1)(c) of the ICRA. That section of the ICRA

provides,

Nothing in this chapter shall be construed as indicating any

of the following:

....

c. Limiting a city or local government from enacting any

ordinance or other law which prohibits broader or different

categories of unfair or discriminatory practices.

Iowa Code § 216.19(1)(c). As the district court saw it, section 216.19(1)(c)

gives municipalities like Waterloo “authority” to “prohibit[t] broader or

different categories of unfair or discriminatory practices.” And because

Ordinance 5522 is a civil rights measure, section 216.19(1)(c) empowered

Waterloo to enact it.

The problem with this line of reasoning is that it does not fit section

216.19(1)(c)’s actual wording. The section only says that chapter 216 shall

not be construed as limiting local authority. The section does not itself

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grant such authority. In Petro v. Palmer College Of Chiropractic, we made

this very point regarding the related provision in section 216.19(1)(b),

which states:

Nothing in this chapter shall be construed as indicating any

of the following:

....

b. An intent to prohibit an agency or commission of

local government having as its purpose the investigation and

resolution of violations of this chapter from developing

procedures and remedies necessary to insure the protection

of rights secured by this chapter.

Rejecting the argument that Iowa Code section 216.19(1)(b)

authorized municipalities to issue right-to-sue letters to civil rights

complainants, we concluded in Petro that the section

is a form of savings clause. . . . [W]e focus on the words

themselves. They state that “[n]othing in this chapter shall be

construed as indicating . . . [a]n intent to prohibit” the

development of local procedures and remedies. Thus, section

216.19(1)(b) is not an independent grant of authority to cities

to enact local law governing relationships between private

parties . . . . At best, it allows such local law to stand if there

is an independent basis for it.

945 N.W.2d at 773–74 (second omission and third alteration in original)

(citation omitted) (quoting Iowa Code §§ 216.19(1), .19(1)(b) (2017)).

Accordingly, we cannot agree with the basis upon which the district court

upheld Ordinance 5522. An ICRA savings clause cannot supersede the

express limits set forth in section 364.3(12)(a).

C. Does Ordinance 5522 Exceed the Requirements of Federal

or State Law? Although we are not persuaded that Iowa Code section

216.19(1)(b) can sustain the ordinance, the City argues that the ordinance

is not preempted anyway because it does not “exceed” the requirements of

state and federal law. See Iowa Code § 364.3(12)(a). “Ban the box,”

according to the City, simply implements existing civil rights law.

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We are not convinced. The Equal Employment Opportunity

Commission (EEOC) has said that “[a]n employer’s use of an individual’s

criminal history in making employment decisions may, in some instances,

violate the prohibition against employment discrimination under Title VII

of the Civil Rights Act of 1964, as amended.” U.S. Equal Emp. Opportunity

Comm’n, EEOC–CVG–2012–1, Enforcement Guidance on the Consideration

of Arrest and Conviction Records in Employment Decisions Under Title VII of

the Civil Rights Act, (2012) (emphasis added). According to the EEOC, an

employer could be liable under Title VII if its use of a criminal background

check had a “disparate impact” on job applicants of a particular race and

if the background check was not “job related and consistent with business

necessity.” Id. The City overlooks these qualifiers and the general Title VII

requirement that disparate impact must be proved on an employer-by-

employer basis.2

Thus, in Mandala v. NTT Data, Inc., the United States Court of

Appeals for the Second Circuit rejected an effort to judicially “ban the box”

via a court action under Title VII. See 975 F.3d 202, 205 (2d Cir. 2020),

reh’g denied, 988 F.3d 664 (Feb. 23, 2021) (en banc). There, the court

affirmed the dismissal of a class action complaint against a technology

services provider that had a policy not to hire persons with certain criminal

convictions. Id. The court reasoned that the plaintiffs, crucially, had failed

to allege anything specific about the qualified applicant pool for this

defendant:

[W]hile Plaintiffs’ statistics show that African Americans are

on average more likely to have been convicted of a crime than

whites, that does not, without more, make it plausible that an

African-American web developer with the educational and

2Additionally,EEOC enforcement guidance does not carry the force of law.

Desmond v. Mukasey, 530 F.3d 944, 957 (D.C. Cir. 2008).

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technical qualifications to work at NTT is more likely to have

been convicted of a crime than his Caucasian counterpart.

Id. at 212. Some other efforts to “ban the box” at particular employers

through lawsuits have also been unsuccessful. See, e.g., EEOC v.

Freeman, 778 F.3d 463, 465–66, 468 (4th Cir. 2015) (affirming summary

judgment for the defendant in a Title VII discrimination case alleging that

credit history and criminal background checks had a disparate impact on

Black and male applicants); Waldon v. Cincinnati Pub. Schs., 89

F. Supp. 3d 944, 948–49 (S.D. Ohio 2015) (granting summary judgment

to the defendant on the ground that the plaintiff failed to show that a

statewide law mandating criminal background checks for school

employees had a disparate impact).

Our caselaw likewise requires targeted proof in a disparate impact

employment-discrimination case. In Pippen v. State, we recognized that

under Title VII, it was generally the plaintiff’s burden in a disparate impact

case not only to isolate a particular employment practice (such as a

criminal history screen) but also to subject that practice to “meaningful

statistical analysis.” 854 N.W.2d 1, 26–27 (Iowa 2014). We followed a

similar approach in rejecting the ICRA claim. Id. at 31–32.

By diving more deeply into the factual record, the special

concurrence in Pippin demonstrated that there may have been

discrimination based on race in hiring by various departments in the

executive branch during the relevant time period. See id. at 44–45

(Waterman, J., concurring specially). The special concurrence described

this situation as “disturbing.” Id. at 45. As noted by the special

concurrence, an analysis by the plaintiffs’ expert

showed that a minimally qualified white person had a forty

percent greater chance of being hired than a minimally

qualified African American. Splitting his analysis by

department, Killingsworth testified there was a statistically

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significant disparity between the percentage of African-

American applicants hired and the percentage of white

applicants hired in many of the departments, though not all.

Id. at 34. Likewise, the state’s expert

found that African Americans were statistically less likely to

receive a department job interview after their application was

referred by DAS. Probing more deeply, he found this was only

true for about one-third of State departments. It was not true

for the remaining two-thirds of departments.

Id. at 34–35.

The plaintiffs’ case failed, however, because they simply aggregated

all state executive branch departments and all stages of the hiring process

together. Id. at 44–45.

Instead of narrowing their focus, plaintiffs brought a class

action alleging a common pattern of discrimination by the

entire state executive branch of government. Having brought

such a large case, it was then up to the plaintiffs to undertake

the considerable work required to prove it. Under the

prevailing law, this included analysis of specific hiring

practices and their impact. Plaintiffs did not meet their

burden.

Id. at 45. Thus, Pippen indicates that to prove a Title VII or ICRA disparate

impact case, the plaintiff must offer statistical proof of the effects of the

defendant’s employment practice on the defendant’s employment

decisions. Generalizations based on overall numerical trends are not

enough.

Here, the Waterloo ordinance applies to all employers, regardless of

the characteristics of their potential applicant pool. It forbids every

employer’s use of a criminal history box on the job application form for

every job, even if the employer might have valid business reasons for

asking about criminal history. These requirements go beyond Title VII and

the ICRA.3

3When a “legitimate business justification” exists as defined in the ordinance, an

employer can conduct a background check later, i.e., after extending a conditional offer

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To look at the matter another way, if Ordinance 5522 did not go

beyond existing federal and state law, then why did Waterloo go to the

trouble of enacting it? We are not persuaded by the City’s argument that

the ordinance does no more than duplicate existing state and federal civil

rights protections.

D. Does Ordinance 5522 Prescribe Terms or Conditions of

Employment? We now turn to the third potential ground on which the

ordinance may be able to avoid preemption, at least in part. Iowa Code

section 364.3(12)(a) only supersedes city ordinances establishing different

“terms or conditions of employment.” That is, it applies to any ordinance

“providing for any terms or conditions of employment that exceed or

conflict with the requirements of federal or state law relating to . . . hiring

practices, . . . or other terms or conditions of employment.” To the extent

Ordinance 5522 does not provide for different terms or conditions of

employment, perhaps it is not preempted.

Accordingly, we have to read the language of Iowa Code section

364.3(12)(a) carefully. It preempts ordinances that prescribe different

terms or conditions of employment. This includes, most notably, local

minimum wage ordinances, which were the flashpoint of the debate in

2017. Yet to the extent Ordinance 5522 merely delays an inquiry into

criminal history, it is not prescribing different terms or conditions of

employment. Cf. Union of Auto. Technicians, AFL–CIO Loc. 563 v. Port Auth.

Emp. Rels. Panel, 144 N.Y.S.3d 12 at *13–14 (App. Div. 2021) (“The Panel

rationally found that the requirements to disclose additional convictions

were not terms and conditions of employment and did not require

collective bargaining.”); Blackhawk Tchrs.’ Fed’n Loc. 2308 v. Wis. Emp.

of employment. Waterloo, Iowa, Code of Ordinances § 5-3-15(B). But the point remains

that Ordinance 5522 exceeds the requirements of federal and state civil rights law.

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Rels. Comm’n, 326 N.W.2d 247, 258 (Wis. Ct. App. 1982) (holding that the

school district had a duty to bargain over substantive antidiscrimination

provisions, but not over whether “the job interview process and the job

application format” could inquire into those subjects). But see Ass’n of Pa.

State Coll. & Univ. Facs. v. Pa. Lab. Rels. Bd., 226 A.3d 1229, 1244 (Pa.

2020) (holding that where “criminal background reports and ongoing

arrest and conviction notification requirements are required for continued

employment, as they are mandatory for both new and existing faculty

members,” they are terms and conditions of employment).

Of course, it is true that section 364.3(12)(a) specifically mentions

“hiring practices.” Whether a job application includes a question about

the applicant’s criminal history might normally be considered a hiring

practice. Yet, we need to focus on what is preempted: only ordinances

providing for different “terms or conditions of employment.” The term

“hiring practices” is sandwiched between two uses of “terms or conditions

of employment.” The closing flourish—“or other terms or conditions of

employment”—heralds that only attempts to establish different terms or

conditions of employment are preempted. Therefore, as we read the text,

not all ordinances relating to hiring practices are preempted, only those

that provide for hiring practices that amount to different terms or

conditions of employment.

In contrast to Iowa, Michigan adopted legislation in 2015 that

explicitly preempted local government efforts to regulate inquiries on an

employment application:

A local governmental body shall not adopt, enforce, or

administer an ordinance, local policy, or local resolution

regulating information an employer or potential employer

must request, require, or exclude on an application for

employment [or during the interview process] from an

employee or a potential employee. This section does not

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prohibit an ordinance, local policy, or local resolution

requiring a criminal background check for an employee or

potential employee in connection with the receipt of a license

or permit from a local governmental body.

2015 Mich. Legis. Serv. Pub. Acts 105 § 4 (codified at Mich. Comp. Laws

Ann. § 123.1384 (West, Westlaw through 2021 Reg. Sess.) (alteration

amended at 2018 Mich. Legis. Serv. Pub. Acts 84 § 4)). This was one of

nine separate provisions preempting local law relating to employer–

employee relations. See id. §§ 5–12. Other provisions concerned topics

such as minimum wage, unpaid leave, and fringe benefits. See id. §§ 5, 8,

11.

Likewise, Indiana enacted legislation in its 2017 legislative session

that expressly preempted local ordinances regarding criminal background

checks:

Unless federal or state law provides otherwise, a political

subdivision may not prohibit an employer from:

(1) obtaining or using criminal history information

during the hiring process to the extent allowed by federal or

state law, rules, or regulations; or

(2) at the time an individual makes an initial application

for employment:

(A) making an inquiry regarding the individual’s

criminal history information; or

(B) requiring the individual to disclose the individual’s

criminal history information.

2017 Ind. Legis. Serv. Pub. L. 210-2017 § 3 (codified at Ind. Code. Ann.

§ 22-2-17-3 (West, Westlaw through 2021 1st Reg. Sess.)).

So too Mississippi in 2014:

No county, board of supervisors of a county, municipality,

governing authority of a municipality or any other political

subdivision shall adopt or maintain in effect any law,

ordinance, or rule that creates requirements, regulations,

processes or prohibitions that in any way interfere with an

employer’s ability to become fully informed about the

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background of an employee or potential employee for the

purpose of creating or maintaining a fair, secure, safe and

productive workplace. Any ordinance or regulation that exists

as of July 1, 2014, or is created after July 1, 2014, that

violates the provisions of this section shall be explicitly

preempted and voided by this section.

2014 Miss. Laws ch. 340 § 1 (codified at Miss. Code. Ann. § 17-25-33(1)

(West, Westlaw through 2021 Reg. Sess.)).

Likewise, New Jersey in 2014:

The governing body of a county or municipality shall not adopt

any ordinance, resolution, law, rule or regulation regarding

criminal histories in the employment context, except for

ordinances adopted to regulate municipal operations.

2014 N.J. Sess. Law Serv. ch. 32 § 7(a) (codified at N.J. Stat. Ann § 34:6B-

17(a) (West, Westlaw through L. 2021)).

Iowa could have followed one of these models and did not. (Three of

those models had already been enacted into positive law.) We think the

logical consequence for this case is clear. Ordinance 5522 is preempted

to the extent it attempts to establish terms and conditions of employment,

including hiring practices that constitute terms and conditions of

employment, but not preempted otherwise.

When we review Ordinance 5522, we see that subsections (2), (3),

and (4) of section (B) actually set terms and conditions of employment.

They do not allow certain employers to turn down persons with certain

types of criminal records. However, section (B) and subsection (1) do not

provide for terms and conditions of employment. They simply address the

timing of the criminal history inquiry. See Dallan F. Flake, Do Ban-the-

Box Laws Really Work? 104 Iowa L. Rev. 1079, 1092 (2019) [hereinafter

Flake] (characterizing this situation as “employers remain free to

discriminate against ex-offenders—just not right away”).

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Before we go further, we must address two points raised by ABI

concerning the “terms or conditions of employment” language. First, ABI

argues that this ground for avoiding preemption is not properly before us

because it was raised by the NAACP as amicus curiae, not by the City as

a party. Normally, we do not allow amici curiae to raise new issues. See

Press-Citizen Co. v. Univ. of Iowa, 817 N.W.2d 480, 493–94 (Iowa 2012).

However, we think a practical approach is warranted here.

In Petro, we considered on appeal an argument regarding specific

statutory language that only an amicus curiae had raised. 945 N.W.2d at

774. We did so by crediting the appellant with raising the overall issue of

whether section 216.19 of the ICRA allowed private suits under local

ordinances, even though only the amicus had argued that section

216.19(4), in particular, allowed such suits. Id. We considered such an

approach “practical.” Id. Here, likewise, we will credit the City with raising

the broad issue of whether Ordinance 5522 can avoid preemption under

section 364.3(12)(a), while recognizing that only the NAACP relied on the

“terms or conditions of employment” language within section 364.3(12)(a).

This approach is practical because it does not result in any

unfairness to ABI. The issues in this case are purely legal. Indeed, ABI

took the unusual step of omitting a statement of facts from its opening

brief for precisely that reason. Moreover, ABI addressed the question of

whether Ordinance 5522 prescribed “terms or conditions of employment”

both in its reply brief and at oral argument. Therefore, we have a fully

developed adversarial presentation on the issue.4

4The overall issue is still whether the district court’s ruling of no preemption

should be sustained. The NAACP is raising a different argument for sustaining that no

preemption ruling. See Cox v. Iowa Dep’t of Hum. Servs., 920 N.W.2d 545, 556–57 (Iowa

2018) (same); O’Hara v. State, 642 N.W.2d 303, 310–12 (Iowa 2002) (considering a new

argument raised by an amicus); 4 Am. Jur. 2d Amicus Curiae § 7, at 347–48 (2018)

(“Although courts are not obligated to consider issues raised only by an amicus curiae,

19

ABI also urges that Iowa Code section 364.3(12)(a)’s reference to

“hiring practices” becomes surplusage if we limit the preemptive effect of

the statute to “terms or conditions of employment.” See Iowa Code § 4.4(2)

(setting forth the presumption that in enacting a statute, “[t]he entire

statute is intended to be effective”). Yet, if we look at the statute as a

whole, its reference to “minimum or living wage rate” is already surplusage

since wage rates are clearly and indisputably terms or conditions of

employment. So the statute had bells and whistles to begin with. In our

view, what ultimately matters is that it preempts some hiring practices,

namely, those that amount to terms or conditions of employment.5

Finally, we need to decide whether the rest of Ordinance 5522 can

be sustained if the provisions that restrict adverse hiring decisions based

on criminal history are stricken. This is a question of severance. In

American Dog Owners Ass’n v. City of Des Moines, we held that the

unconstitutional portions of a vicious dog ordinance could be severed from

the constitutional portions. See 469 N.W.2d 416, 418 (Iowa 1991) (per

curiam). We explained,

When parts of a statute or ordinance are

constitutionally valid, but other discrete and identifiable parts

are infirm, we may sever the offending portions from the

enactment and leave the remainder intact. Severance is

appropriate if it does not substantially impair the legislative

purpose, if the enactment remains capable of fulfilling the

courts have discretion to do so, particularly if . . . the new issues concern only other

matters of law and involve important issues of policy.”). In our view, given that ABI has

had an opportunity to respond, it would be the better course of action not to strike down

an entire ordinance based on state-law preemption if, in fact, it isn’t preempted.

5With all due respect to our colleague who is dissenting in part, we do not believe

views expressed by a member of the general assembly in March 2020, three years after

Iowa Code section 364.3(12)(a) was enacted and while this case was already pending, are

relevant here. See Sullivan v. Finkelstein, 496 U.S. 617, 632, 110 S. Ct. 2658, 2667

(1990) (Scalia, J., concurring in part) (“In my opinion, the views of a legislator concerning

a statute already enacted are entitled to no more weight than the views of a judge

concerning a statute not yet passed.”).

20

apparent legislative intent, and if the remaining portion of the

enactment can be given effect without the invalid provision.

Id. (citations omitted). We reached the same conclusion as to severability

in Hensler v. City of Davenport, a case involving a parental-responsibility

ordinance. See 790 N.W.2d 569, 589 (2010). In that case, we relied on

the existence of a severability provision in the Davenport Municipal Code.

See id. Notably, the Waterloo Municipal Code has a similar severability

provision:

§ 1-1-7 SEVERABILITY.

The sections, paragraphs, sentences, clauses and

phases of this code are severable, and if any phrase, clause,

sentence, paragraph or section of this code shall be declared

invalid, unenforceable or unconstitutional by the valid

judgment or decree of a court of competent jurisdiction, such

invalidity, unenforceability or unconstitutionality shall not

affect any of the remaining phrases, clauses, sentences,

paragraphs and sections of this code.

Waterloo, Iowa, Code of Ordinances § 1-1-7.

We conclude that the Waterloo city council would have wanted the

provisions that delay inquiry into criminal history to be upheld even if the

provisions that restrict use of criminal history are invalid because they

violate state law. In fact, a number of “ban the box” laws and ordinances

go no further than section (B) and subsection (1). They delay the inquiry;

they do not prevent it. See Flake, 104 Iowa L. Rev. at 1089, 1092. We

therefore uphold section (B) and subsection (1) of Ordinance 5522, while

invalidating subsections (2), (3), and (4).

IV. Conclusion.

For the foregoing reasons, we affirm in part and reverse in part the

district court’s order, and we remand for further proceedings consistent

with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

21

All justices concur except McDonald, J., who concurs in part and

dissents in part, and McDermott, J., who takes no part.

22

#20–0575, Iowa Ass’n of Business & Indus. v. City of Waterloo

McDONALD, Justice (concurring in part and dissenting in part).

The majority affirms in part the judgment of the district court

because it concludes “terms or conditions of employment” as used in Iowa

Code section 364.3(12)(a) (2020) does not include the application process

and other preemployment hiring practices. This issue was not presented

to the district court. This issue was not decided by the district court. This

issue was not raised on appeal by any party to this proceeding. I would

decline to address this issue and would reverse the judgment of the district

court (as the majority does) on the issues actually preserved for and

presented on appeal. Further, to the extent the issue is before this court,

I disagree with the majority’s interpretation of the phrase “terms or

conditions of employment” as used in the statute. For these reasons, I

concur in part and dissent in part.

I.

“It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will

decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537

(Iowa 2002). This fundamental doctrine necessarily arises out of the very

nature of the judicial power. “The judicial power shall be vested in a

supreme court, district courts, and such other courts, inferior to the

supreme court, as the general assembly may, from time to time, establish.”

Iowa Const. art. V, § 1. “The judicial power is ordinarily defined to be the

power to construe and interpret the Constitution and laws, and to apply

them and [to] decide controversies . . . .” State v. Thompson, 954 N.W.2d

402, 410–11 (Iowa 2021) (quoting Hutchins v. City of Des Moines, 176 Iowa

189, 205, 157 N.W. 881, 887 (1916)). “The power of appellate review is

one aspect of the judicial power.” Id. at 411. When exercising the power

23

of appellate review, this court and the court of appeals are “court[s] for the

correction of errors at law.” Iowa Const. art. V, § 4; Iowa Code §§ 602.4102,

.5103. “If a litigant fails to present an issue to the district court and obtain

a ruling on the same, it cannot be said that we are correcting an error at

law.” State v. Tidwell, No. 13–0180, 2013 WL 6405367, at *2 (Iowa Ct.

App. Dec. 5, 2013).

The issue of whether the “terms or conditions of employment,” as

used in section 364.3(12)(a), includes the application process and other

preemployment hiring practices was never presented to or ruled on by the

district court, and the issue is not preserved for appeal. The parties filed

cross-motions for summary judgment in the district court. ABI argued

Ordinance 5522 “exceed[ed] the requirements of federal and state law

relating to hiring practices and conditions of employment” and was thus

in violation of section 364.3(12)(a) and article III, section 38A of the Iowa

Constitution (providing that “[m]unicipal corporations are granted home

rule power and authority, not inconsistent with the laws of the general

assembly, to determine their local affairs and government”). The City of

Waterloo (the City) did not contest that section 364.3(12)(a) applied to the

application process and other preemployment hiring practices. Instead, it

argued: (1) section 364.3(12)(a) does not apply at all because

section 216.19 of the Iowa Civil Rights Act (ICRA) provided the City with

independent authority to enact Ordinance 5522; and (2)

section 364.3(12)(a) does not preempt Ordinance 5522 because the

ordinance does not exceed the requirements of federal or state law. The

district court agreed with the City, denied ABI’s motion for summary

judgment, and granted the City’s motion for summary judgment. No party

raised the issue of the scope of “terms or conditions of employment” in the

24

district court, and the district court did not decide (or even discuss) the

issue.

The majority does not discuss the issue of error preservation.

Instead, relying on Petro v. Palmer College of Chiropractic, 945 N.W.2d 763

(Iowa 2020), the majority concludes it can reach this wholly new issue on

appeal because amicus curiae raised the issue. In doing so, the majority

confuses the issue of error preservation with the issue of waiver or

forfeiture of an argument on appeal. Amicus curiae’s participation in this

appeal is not a cure for the City’s failure to preserve error on an issue. To

the contrary, the rules of appellate procedure provide amicus curiae’s

participation is limited to assisting the court in resolving only those issues

preserved for appellate review. See Iowa R. App. P. 6.906(1), (2) (stating

an amicus brief must “assist the court in resolving issues preserved for

appellate review in the case”); id. r. 6.906(5) (stating an amicus brief

should be allowed only where the “brief will assist the court in resolving

the issues preserved for appellate review in the case”). Amicus curiae are

not even allowed to participate in an appeal where “[t]he proposed amicus

curiae brief attempts to raise issues that were not preserved for appellate

review.” Id. r. 6.906(5)(b)(3).

“A supreme court is ‘a court of review, not of first view.’ ”

UE Loc. 893/IUP v. State, 928 N.W.2d 51, 60 (Iowa 2019) (quoting

Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 413 (Iowa 2017)).

Because “[w]e are a court of review, . . . we do not generally decide an issue

that the district court did not decide first.” 33 Carpenters Constr., Inc. v.

State Farm Life & Cas. Co., 939 N.W.2d 69, 76 (Iowa 2020) (emphasis

omitted). This is both a question of authority and fundamental fairness:

Because error preservation is based on fairness, we

think both parties should be bound by the rule. Ordinarily,

25

we attempt to protect the district court from being ambushed

by parties raising issues on appeal that were not raised in the

district court. We see no reason why we should not apply the

same rationale to the parties themselves. . . . To that end, we

hold that we will not consider a substantive or procedural

issue for the first time on appeal, even though such issue

might be the only ground available to uphold a district court

ruling.

DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).

I would adhere to our fundamental doctrine of appellate review, our

rules of appellate procedure, and our precedents and hold error was not

preserved on the question of whether section 364.3(12)(a) applies to the

application process and other preemployment hiring practices. I

respectfully dissent from the majority’s resolution of an issue not

preserved for appellate review.

II.

A second fundamental doctrine of appellate review is the party-

presentation rule. Earlier this term, we explained that “[o]ur system ‘is

designed around the premise that [parties represented by competent

counsel] know what is best for them, and are responsible for advancing

the facts and argument entitling them to relief.’ ” State v. Struve,

956 N.W.2d 90, 99 n.2 (Iowa 2021) (second alteration in original) (quoting

United States v. Sineneng-Smith, 590 U.S. ___, ___, 140 S. Ct. 1575, 1579

(2020)), reh’g denied Apr. 6, 2021. “[C]ourts are essentially passive

instruments of government. . . . [They] wait for cases to come to [them],

and when [cases arise, courts] normally decide only questions presented

by the parties.” Id. (alteration in original) (quoting Sineneng-Smith,

590 U.S. at ___, 140 S. Ct. at 1579). In accord with this general principle,

“[i]t is a well-established rule of appellate procedure that ‘[t]he scope of

appellate review is defined by the issues raised by the parties’ briefs.’ ”

Aluminum Co. of Am. v. Musal, 622 N.W.2d 476, 479 (Iowa 2001) (en banc)

26

(second alteration in original) (emphasis added) (quoting Dull v. Dull,

303 N.W.2d 402, 407 (Iowa 1981), superseded by court rule on other

grounds, Iowa R. Civ. P. 88).

Here, the City did not argue in its appellate briefs that

section 364.3(12)(a) does not relate to the application process and other

preemployment hiring practices. The City’s failure to raise the issue in its

briefing constitutes waiver or forfeiture of the issue. See Morris v.

Steffes Grp., Inc., 924 N.W.2d 491, 498 (Iowa 2019) (holding “unbriefed

issues” were waived); State v. Seering, 701 N.W.2d 655, 661–62

(Iowa 2005) (holding that appellee waived issues on appeal even though

issues were raised in and decided by district court because appellee failed

to present arguments in appellate brief), superseded by statute on other

grounds, 2009 Iowa Acts ch. 119, § 3 (codified at Iowa Code § 692A.103

(Supp. 2009)); Goodenow v. City Council, 574 N.W.2d 18, 27 (Iowa 1998)

(declining to address issue where “[p]laintiffs did not raise this issue before

the district court, or in their initial brief”); Parkhurst v. White,

254 Iowa 477, 481, 118 N.W.2d 47, 49 (1962) (holding that appellee

waived issue not argued on appeal); Am. Mut. Liab. Ins. v. State Auto. Ins.,

246 Iowa 1294, 1302–03, 72 N.W.2d 88, 93 (1955) (declining to express

opinion on issue not raised by appellees); MGM Apartments, LLC v.

Mid-Century Ins., No. 13–0661, 2014 WL 251898, at *4 (Iowa Ct.

App. 2014) (declining to consider issue raised in reply brief but not main

brief).

The majority concludes it can nonetheless decide the issue because

amicus curiae raised the issue. This is directly contrary to the party-

presentation rule and our precedents. See Press-Citizen Co. v.

Univ. of Iowa, 817 N.W.2d 480, 493 (Iowa 2012) (“The amici curiae urge

that it would violate federal and state constitutional provisions if access to

27

public documents could depend upon the knowledge or identity of the

requester. Although this argument is developed at some length in the brief

of the amici, it was not raised below or by the Press-Citizen. We therefore

decline to reach it.”); Rants v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004)

(“Moreover, the legislators, as amicus curiae, are unable to preserve this

issue for our review.”); Mueller v. St. Ansgar State Bank, 465 N.W.2d 659,

660 (Iowa 1991) (“Under Iowa law, the only issues reviewable are those

presented by the parties.”); Shenandoah Educ. Ass’n v.

Shenandoah Cmty. Sch. Dist., 337 N.W.2d 477, 483 (Iowa 1983) (en banc)

(“The other parties in this case have not at any stage of the proceedings

questioned the constitutionality of Iowa statutes, and we can review

neither an issue which was not presented to the trial court nor an issue

raised not by the parties themselves but only by a party in the position

amicus curiae.”); Martin v. Peoples Mut. Sav. & Loan Ass’n,

319 N.W.2d 220, 230 (Iowa 1982) (en banc) (“Reviewable issues must be

presented in the parties’ briefs, not an amicus brief.”).

We most recently addressed this issue just last month. In Rieder v.

Segal, the plaintiff brought a negligent credentialing claim against a

hospital. See 959 N.W.2d 423, 425 (Iowa 2021). In that case, we stated it

was an open question whether such a claim was cognizable in Iowa.

See id. at 428. In the district court, the defendant moved for summary

judgment on the ground the plaintiffs failed to establish a prima facie case

assuming, without conceding, the tort was cognizable. See id. at 428.

The district court granted the defendant’s motion for summary judgment

on that limited ground, and the plaintiffs appealed. See id. at 427. On

appeal, the defendant did not raise the issue of whether the tort was

cognizable, but four amici requested a ruling on the issue. See id. at 428.

Although holding the tort was not cognizable would have been dispositive

28

of the claim, we declined to address the issue because the issue was never

presented to or ruled on by the district court and because reviewable

issues must be raised by the parties and not amici. See id. Our decision

in Rieder controls this case.

The majority relies on Petro, 945 N.W.2d 763, to reach a contrary

conclusion. In that case, the plaintiff pursued in the district court a

private cause of action arising under a local human rights ordinance.

See id. at 765. The district court held it had no jurisdiction over the matter

because the municipality could not confer jurisdiction on a state court

over a private cause of action arising under municipal law, and the plaintiff

appealed. See id. at 768–69. In the district court and on appeal, the

plaintiff argued Iowa Code section 216.19 authorized the private cause of

action and allowed for state court jurisdiction. See id. at 768, 770. Amici

argued the same thing but relied on a different subsection of the same

statute. See id. at 774. We concluded the issue was properly before us

because Petro “rais[ed] the overall question whether Iowa Code

section 216.19 authorizes suits under local ordinances.” Id.

Petro is distinguishable from this case. First, in Petro, the plaintiff

and amicus raised the same legal issue—whether section 216.19

authorized the private cause of action. While they emphasized different

subsections of the same statute in support of their respective arguments,

they argued the same legal issue. Here, the City and amicus do not raise

the same legal issue. The City does not contest that section 364.3(12)(a)

applies to the application process and other preemployment hiring

practices. Instead, the City contends section 364.3(12)(a) is inapplicable

because the ICRA specifically authorizes Ordinance 5522 and because

Ordinance 5522 does not exceed federal or state law. Only amicus curiae

raised the issue regarding the scope of section 364.3(12)(a).

29

Second, and more important, in Petro, this court discussed amicus

curiae’s argument but ultimately rejected the argument. See 945 N.W.2d

at 774–76. While this court’s discussion of the argument in Petro more

fully fleshed out the relevant issue, the court’s consideration of the

argument did not change the disposition of the case. In other words, no

party was prejudiced by consideration and rejection of the argument. That

is not the case here. ABI loses this case, in part, based on a legal issue

not raised in the district court, not decided by the district court, and not

raised by any party to this case. That result is fundamentally unfair and

disallowed by our precedents.

Not only is the majority’s disposition of the case unfair and contrary

to our own precedents, it is contrary to the general rule: “It is . . . clear

beyond hope of contradiction that amici cannot ‘interject into a case issues

which the litigants, whatever their reasons might be, have chosen to

ignore.’ ” Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 19 n.4

(1st Cir. 2016) (quoting Lane v. First Nat’l Bank of Bos., 871 F.2d 166, 175

(1st Cir. 1989)); see, e.g., Sineneng-Smith, 590 U.S. at ___, 140 S. Ct. at

1580–82 (vacating court of appeals’ judgment where court of appeals

ignored the party-presentation principle and relied on the arguments of

amici); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 721,

134 S. Ct. 2751, 2776 (2014) (declining to consider amici’s argument

because the Court does not “generally entertain arguments that were not

raised below and are not advanced in this Court by any party”); F.T.C. v.

Phoebe Putney Health Sys., Inc., 568 U.S. 216, 226 n.4, 133 S. Ct. 1003,

1010 n.4 (2013) (declining to consider amicus curiae’s argument

“[b]ecause this argument was not raised by the parties or passed on by the

lower courts”); MeadWestvaco Corp. ex rel. Mead Corp. v. Ill. Dep’t of

Revenue, 553 U.S. 16, 31, 128 S. Ct. 1498, 1508 (2008) (declining to

30

address amici’s issue because the question they “call upon us to answer

was neither raised nor passed upon in the state courts”); United Parcel

Serv., Inc. v. Mitchell, 451 U.S. 56, 60 n.2, 101 S. Ct. 1559, 1562 n.2 (1981)

(declining to consider amicus curiae’s “argument since it was not raised

by either of the parties here or below”); Bell v. Wolfish, 441 U.S. 520,

531 n.13, 99 S. Ct. 1861, 1870 n.13 (1979) (declining to address

arguments of amicus curiae because “[n]either argument was presented to

or passed on by the lower courts; nor have they been urged by either party

in this Court”); Knetsch v. United States, 364 U.S. 361, 370, 81 S. Ct. 132,

137 (1960) (stating the court would not pass on amicus curiae’s argument

because “[t]his argument has never been advanced by petitioners in this

case”); Simko v. U.S. Steel Corp, 992 F.3d 198, 206 (3d Cir. 2021) (“We have

held that the role of an amicus brief is to elaborate issues properly

presented by the parties, not inject new issues into an appeal. Thus, an

amicus normally cannot expand the scope of an appeal with issues not

presented by the parties on appeal, at least not in cases where the parties

are competently represented by counsel.” (internal marks and citations

omitted)); Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661,

666 n.4 (D.C. Cir. 2017) (“Nor may amici expand an appeal’s scope to

sweep in issues that a party has waived.”); Evans v. Georgia Reg’l Hosp.,

850 F.3d 1248, 1257 (11th Cir. 2017) (“Further, we do not consider an

amicus curiae to be a party in the case where it appears. Moreover, without

‘exceptional circumstances, amici curiae may not expand the scope of an

appeal to implicate issues not presented by the parties to the district

court.’ ” (citation omitted) (quoting Richardson v. Ala. State Bd. of Educ.,

935 F.2d 1240, 1247 (11th Cir. 1991)), abrogated on other grounds by

Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731 (2020); World

Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752 n.3

31

(5th Cir. 2009) (“It is well-settled in this circuit that ‘an amicus curiae

generally cannot expand the scope of an appeal to implicate issues that

have not been presented by the parties to the appeal.’ Accordingly, we will

not consider the arguments raised only by the amicus curiae.” (citations

omitted)); Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 n.8

(9th Cir. 2009) (“An amicus curiae generally cannot raise new arguments

on appeal, and arguments not raised by a party in an opening brief are

waived.” (citation omitted)); Cal. Ass’n for Safety Educ. v. Brown,

36 Cal. Rptr. 2d 404, 410 (Ct. App. 1994) (“California courts refuse to

consider arguments raised by amicus curiae when those arguments are

not presented in the trial court, and are not urged by the parties on appeal.

‘ “Amicus curiae must accept the issues made and propositions urged by

the appealing parties, and any additional questions presented in a brief

filed by an amicus curi[a]e will not be considered [citations].” ’ ” (second

alteration in original) (quoting Pratt v. Coast Trucking, Inc.,

39 Cal. Rptr. 332, 335 (Ct. App. 1964))).

III.

Not only is the majority’s disposition of this case contrary to our

error preservation rules, our party-presentation rule, our precedents, and

the great weight of considered authority, the majority’s interpretation is

constricted, at odds with itself, and contrary to the legislature’s intent.

The Iowa Constitution gives the legislature “the power ‘to trump or

preempt local law.’ ” Baker v. City of Iowa City, 750 N.W.2d 93, 99

(Iowa 2008) (quoting Berent v. City of Iowa City, 738 N.W.2d 193, 196

(Iowa 2007)). The legislature chose to do so here with respect to the

regulation of the “terms or conditions of employment.” Iowa Code

§ 364.3(12)(a). In interpreting this preemption provision, it is immaterial

whether the statute was good policy. “[T]his court does not entertain

32

arguments that statewide regulation is preferable to local regulation or vice

versa, but focuses solely on legislative intent as demonstrated through the

language and structure of a statute.” City of Davenport v. Seymour,

755 N.W.2d 533, 539 (Iowa 2008).

I begin with the text of the statute. See Doe v. State,

943 N.W.2d 608, 610 (Iowa 2020) (“Any interpretive inquiry thus begins

with the language of the statute at issue.”). The statute provides:

A city shall not adopt, enforce, or otherwise administer an

ordinance, motion, resolution, or amendment providing for

any terms or conditions of employment that exceed or conflict

with the requirements of federal or state law relating to a

minimum or living wage rate, any form of employment leave,

hiring practices, employment benefits, scheduling practices,

or other terms or conditions of employment.

Iowa Code § 364.3(12)(a). Our interpretive task is to “determine the fair

and ordinary meaning of the statutory language at issue.” Com. Bank v.

McGowen, 956 N.W.2d 128, 133 (Iowa 2021); see also State v. Davis,

922 N.W.2d 326, 330 (Iowa 2019) (“We give words their ordinary meaning

absent legislative definition.”); Marshall v. State, 805 N.W.2d 145, 158

(Iowa 2011) (“We should give the language of the statute its fair meaning,

but should not extend its reach beyond its express terms.”). In making

that determination, we consider the statutory text and its “relationship to

other provisions of the same statute and other provisions of related

statutes.” Com. Bank, 956 N.W.2d at 133.

Three things stand out regarding the statute. First, the statute

preempts “any” local law regarding terms or conditions of employment that

exceed federal or state law. “The word ‘any’ . . . is employed to enlarge

rather than limit the terms modified. It means ‘every’ and ‘all’ . . . .” State

v. Prybil, 211 N.W.2d 308, 312 (Iowa 1973) (en banc). This means the

statute should be given an expansive reading. Second, the statute

33

preempts any local law regarding “terms or conditions of employment” that

exceed federal or state law. Use of the term “or” in this statute is

disjunctive. See, e.g., Amish Connection, Inc. v. State Farm Fire & Cas. Co.,

861 N.W.2d 230, 240–41 (Iowa 2015) (interpreting the word “or” to be

disjunctive and citing cases). This means the statute preempts local law

regarding “terms of employment” or “conditions of employment” that

exceed federal or state law. Third, the legislature has acted as its own

lexicographer here and explicitly identified at least some of the items that

are considered to be “terms of employment” or “conditions of employment.”

Included among these items are “hiring practices.” Considering these

three things, it seems clear that the fair and ordinary meaning of the

statute preempts any local law regarding hiring practices that exceed

federal or state law.

The majority rejects the fair and ordinary meaning of the statute and

instead concludes the statute preempts local law regarding hiring

practices but only “those that amount to terms or conditions of

employment.” There are several problems with the majority’s reading.

First, that is not what the statute says. It says hiring practices, for the

purpose of this statute, are terms or conditions of employment. When, as

here, the legislature acts as its own lexicographer, we “are normally bound

by the legislature’s own definitions.” Sherwin-Williams Co. v. Iowa Dep’t of

Revenue, 789 N.W.2d 417, 425 (Iowa 2010) (quoting State v. Fischer,

785 N.W.2d 697, 702 (Iowa 2010)). The majority does not abide by the

legislature’s own definition and instead inserts an entire restrictive clause

into the statute to limit its preemptive force. “No court, under the guise of

judicial construction, may add words of qualification to the statute in

question or change its terms.” Kelly v. Brewer, 239 N.W.2d 109, 114

(Iowa 1976); see also In re Det. of Geltz, 840 N.W.2d 273, 277 (Iowa 2013)

34

(“[W]e are bound to follow the legislature’s definitions and may not add

words or change terms under the guise of judicial construction.”

(alteration in original) (quoting Iowa Dep’t of Transp. v. Soward,

650 N.W.2d 569, 571 (Iowa 2002))).

Second, the majority opinion rests on the incorrect assumption that

preemployment activity, or at least the completion of an application,

cannot constitute a condition of employment. In the employment law

context, preemployment hiring practices can be considered conditions of

employment. The Code provides several examples. An employer shall not

require an applicant “as a condition of employment” to take or submit to

a polygraph. See Iowa Code § 730.4(2). Nor can an employer “as a

condition of employment” require “a test for the presence of the antibody

to the human immunodeficiency virus.” Iowa Code § 216.6(1)(d). The

Code also regulates drug testing of applicants as a condition of

employment. See Iowa Code § 730.5(4). Further, the completion of the

application itself, including the disclosure of criminal history information,

can be considered a condition of employment. See, e.g., Isaacs v.

Dartmouth-Hitchcock Med. Ctr., No. 12–CV–040–LM, 2014 WL 1572559,

at *2–3 (D.N.H. Apr. 18, 2014) (discussing submission of truthful

application as condition of employment); Ravenscraft v. BNP Media, Inc.,

No. 09 C 6617, 2010 WL 1541455, at *1 (N.D. Ill. Apr. 15, 2010) (“As a

condition of employment with defendant, however, all employees were

required to fill out and sign an employment application.”); Hobby v.

Mulhern, No. CV050081PHXSRB, 2005 WL 2739010, at *1 (D. Ariz.

Oct. 21, 2005) (noting the plaintiff was discharged for “failing to meet the

conditions of employment, namely that she failed to list in her employment

application a December 10, 1997 arrest for ‘larceny, carrying a concealed

weapon, dangerous drugs, drug paraphernalia, two traffic offenses and

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making a false report’ ”); Chichester Sch. Dist. v. Workmen’s Comp.

Appeal Bd., 592 A.2d 774, 775 (Pa. Commw. Ct. 1991) (“The referee found

that Fox completed and submitted an employment application that the

School District required as a condition of employment.”); Phelps v. McGill,

No. W2002-00018-COA-R3-CV, 2002 WL 1592727, at *3–4 (Tenn. Ct. App.

July 9, 2002) (explaining plaintiff was discharged for failing to truthfully

complete application “as a condition of employment”).

Third, because the submission of a truthful application can be

considered a condition of employment, the majority opinion is at odds with

itself. The majority acknowledges Ordinance 5522 goes beyond Title VII

and the ICRA in prohibiting employers from asking about criminal history

in an application:

Here, the Waterloo ordinance applies to all employers,

regardless of the characteristics of their potential applicant

pool. It forbids every employer’s use of a criminal history box

on the job application form for every job, even if the employer

might have valid business reasons for asking about criminal

history. These requirements go beyond Title VII and the ICRA.

However, as noted above, an employer may establish as a condition of

employment that an applicant complete an application disclosing criminal

history information. As the majority acknowledges, nothing in Title VII or

the ICRA prohibits this, but Ordinance 5522 does prohibit this. Under the

plain language of section 364.3(12)(a), Ordinance 5522 should thus be

preempted because it exceeds both federal and state law in disallowing an

employer from imposing a lawful condition of employment.

To make the issue more concrete, consider the following example.

An employer in Waterloo seeks to employ a security guard. The employer

determines, as a condition of employment, an applicant must complete a

truthful application disclosing criminal history information. As the

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majority acknowledges, this is allowed under Title VII and the ICRA.

However, Ordinance 5522 prevents this hypothetical employer from

imposing this lawful condition of employment. Ordinance 5522 thus

exceeds federal and state law and is preempted by section 364.3(12)(a). It

is unclear to me how an ordinance that prohibits an employer from

imposing a condition of employment allowed under federal and state law

does not exceed federal or state law.

Fourth, I am not one to consider a particular legislator’s views in

interpreting statutes, but, to the extent one deems that important,

subsequent legislative history shows the majority’s interpretation of

section 364.3(12)(a) is contrary to the legislature’s intent. In 2020, the

house passed a bill amending the preemption statute. See H.F. 2309, 88th

G.A., 2d Sess. (Iowa 2020). The amendment provided for attorney fees and

costs for any person that successfully challenged a preempted ordinance.

See id. § 2. The sponsor of the legislation explained, without any dissent,

the reason for the bill: “This bill became necessary as a result of a local

government, the city of Waterloo, passing an ordinance in defiance of state

law to ban the box on private businesses’ initial employment forms.”

House Video HF 2309 - Conditions of Employment, Iowa Legislature, at

2:23:23 PM (Mar. 5, 2020), https://www.legis.iowa.gov/

perma/060120217040. The bill sponsor cited section 364.3(12)(a) and

stated that Waterloo was regulating “hiring practices” and “what Waterloo

did was clearly against the preemptions [bill] that we passed a few years

ago.” Id. at 2:23:44 PM, 2:24:30 PM. The senate never took up the bill

because the legislature halted operations due to the COVID-19 pandemic.

However, it seems clear that at least one chamber of the legislature, rightly

in my view, understood that terms of employment or conditions of

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employment include the application process and other preemployment

hiring practices.

IV.

For these reasons, I concur in part and dissent in part.