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

> Supreme Court of Iowa · December 22, 2023

URL: https://www.frixlaw.com/law-library/cases/9914049

## Case

- **Court:** Supreme Court of Iowa
- **Decided:** December 22, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE SUPREME COURT OF IOWA

No. 22–1572

Submitted November 15, 2023—Filed December 22, 2023

RENEE HUMMEL,

Appellee,

vs.

ADAM B. SMITH, ADAM SMITH, M.D., P.C., and TRI-STATE SPECIALISTS,
L.L.P.,

Appellants.

Appeal from the Iowa District Court for Woodbury County, Roger L. Sailer,

Judge.

The defendants in a medical malpractice case seek interlocutory review of

an order denying their motion to strike and for summary judgment because the

expert who signed the plaintiff’s certificate of merit did not have an active license

to practice medicine. REVERSED AND REMANDED.

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

C.J., and Waterman, McDonald, and Oxley, JJ., joined, and in which McDermott
and May, JJ., joined in part. McDermott, J., filed a special concurrence, in which

May, J., joined.

Jeff W. Wright and Zack A. Martin of Heidman Law Firm, P.L.L.C., Sioux

City, for appellants.

Jon Specht of Trial Lawyers for Justice, Decorah, for appellee.
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MANSFIELD, Justice.
I. Introduction.

To establish a prima facie case of medical malpractice, the plaintiff must

ordinarily provide expert testimony that the defendant breached the relevant

standard of care. See Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990). In

such a case, the plaintiff must submit a certificate of merit affidavit signed by an

expert witness within sixty days of the defendant’s answer. Iowa Code

§ 147.140(1)(a) (2020). Failure to substantially comply with this requirement will

lead, upon motion, to dismissal of the case with prejudice. Id. § 147.140(6). Iowa

law also requires that an expert witness on standard of care or its breach be

“licensed to practice in the same or a substantially similar field as the

defendant.” Id. § 147.139(1).

In this medical malpractice case, the plaintiff submitted a certificate of

merit signed by a physician who had practiced in the same field—plastic

surgery—as the defendant. But due to his retirement, the physician’s active

practice licenses had expired and become inactive, meaning that he was no

longer able to practice medicine. The defendants moved to strike the expert and

for summary judgment on this ground. After the district court denied the
defendants’ motion, we granted their application for an interlocutory appeal.

We now conclude that the “licensed to practice” language in the statute

requires the expert to have an active license that allows the actual practice of

medicine; an inactive license does not meet this requirement. Therefore, we

reverse the district court’s ruling and remand for entry of judgment in favor of

the defendants.

II. Background Facts and Proceedings.

On March 23, 2020, Renee Hummel sued Dr. Adam Smith and entities
that employed him for injuries she sustained as a result of a 2018 breast
3

reduction surgery.1 Hummel’s petition alleged negligence, breach of warranty,

and failure to obtain informed consent. On June 15, pursuant to Iowa Code

section 147.140, Hummel submitted a certificate of merit affidavit signed by

Richard Marfuggi, M.D. Dr. Marfuggi’s affidavit stated that Smith had breached

the standard of care with respect to Hummel’s surgery and follow-up care. The

affidavit also stated that Dr. Marfuggi had actively performed plastic surgery and

postsurgical care in the five years leading up to April 26, 2018, the date of

Hummel’s surgical procedure.

However, Dr. Marfuggi acknowledged in the affidavit that he had retired

from clinical practice on July 1, 2019. As it turned out, by the time Dr. Marfuggi

signed the affidavit, both his New York and New Jersey licenses had become

“inactive” or “retired,” meaning that he was no longer authorized to practice

medicine in either state.

Later, Hummel designated Dr. Marfuggi as an expert witness for purposes

of Iowa Code section 668.11. In an expert report, Dr. Marfuggi explained in

greater detail the ways in which he believed Dr. Smith had breached the

applicable standard of care.

On April 25, 2022, Dr. Smith moved to strike Dr. Marfuggi as an expert
witness and moved for summary judgment. Dr. Smith contended that the case

should be dismissed because Dr. Marfuggi had not met the expert witness

requirements of Iowa Code section 147.139(1). See Iowa Code § 147.140(1)(a)

(stating that the expert witness for a certificate of merit affidavit “must meet the

qualifying standards of section 147.139”). Section 147.139(1) requires—among

other things—that a person serving as an expert witness in a medical malpractice

1For the sake of simplicity, we will refer to the defendants collectively as “Dr. Smith.”
4

case be “licensed to practice in the same or a substantially similar field as the

defendant.” Id. § 147.139(1).

Hummel resisted Dr. Smith’s motion. She later supplemented her

resistance with a sworn declaration from Dr. Marfuggi stating that he was eligible

to restore his New Jersey license to “active” status and was in the process of

doing so.

Following a hearing, the district court denied Dr. Smith’s motions. The

court reasoned that Dr. Marfuggi’s status as “licensed” in New Jersey and New

York was sufficient for purposes of Iowa Code section 147.139(1). It noted that

Iowa Code section 147.139(1) only requires the expert to be “licensed to practice,”

while in the very next subsection, the statute requires that the expert have

“actively practiced” within the five years preceding the alleged negligence. See id.

§ 147.139(2). In the district court’s view, this contrast in wording meant that a

“license to practice” need not be “active,” and it held that Dr. Marfuggi’s inactive

and retired licenses satisfied the statutory requirements for in section 147.139(1)

for an expert witness.

Dr. Smith filed a timely application for an interlocutory appeal. We granted

the application and stayed district court proceedings. We retained the appeal.
III. Standard of Review.

The issue is one of statutory interpretation. “Our review is . . . for

correction of errors at law.” State v. Ness, 907 N.W.2d 484, 487 (Iowa 2018)

(quoting State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003)).

IV. Analysis.

In 2017, the Iowa legislature amended Iowa Code section 147.139 relating

to expert witness standards. See 2017 Iowa Acts ch. 107, § 3 (codified at Iowa

Code § 147.139 (2018)). Previously, Iowa law simply required that the
standard-of-care expert’s “medical or dental qualifications relate directly to the
5

medical problem or problems at issue and the type of treatment administered in

the case.” Iowa Code § 147.139 (2016). The 2017 legislation established more

elaborate standards, as follows:

If the standard of care given by a health care provider, as
defined in section 147.136A, is at issue, the court shall only allow a
person the plaintiff designates as an expert witness to qualify as an
expert witness and to testify on the issue of the appropriate standard
of care or breach of the standard of care if all of the following are
established by the evidence:

1. The person is licensed to practice in the same or a
substantially similar field as the defendant, is in good standing in
each state of licensure, and in the five years preceding the act or
omission alleged to be negligent, has not had a license in any state
revoked or suspended.

2. In the five years preceding the act or omission alleged to be
negligent, the person actively practiced in the same or a
substantially similar field as the defendant or was a qualified
instructor at an accredited university in the same field as the
defendant.

3. If the defendant is board-certified in a specialty, the person
is certified in the same or a substantially similar specialty by a board
recognized by the American board of medical specialties or the
American osteopathic association.

4. If the defendant is a licensed physician or osteopathic
physician under chapter 148, the person is a physician or
osteopathic physician licensed in this state or another state.

Id. § 147.139 (2018). With some additions that are not material to this case,

those 2017 changes remain in place for standard-of-care experts today. See id.

§ 147.139 (2023).

No one disputes that Dr. Marfuggi was “licensed” in New York and

New Jersey when he signed the certificate of merit affidavit and his expert report

for this case in 2020. Under New York law, a physician’s license “shall be valid

during the life of the holder unless revoked, annulled or suspended.” N.Y. Educ.
Law § 6502(1) (McKinney 2020). However, Dr. Marfuggi had transitioned to an
6

“inactive license” in New York when he retired as of July 1, 2019. As the New

York State Education Department website explains, a medical professional—

including a physician—must have their license “registered” if they wish to

practice. General Information & Policies, N.Y. State Educ. Dep’t [hereinafter N.Y.

General Information & Policies], https://www.op.nysed.gov/about/general-

information-policies [https://perma.cc/4AVX-DEVF]. Registration requires,

among other things, the payment of a fee and completion of continuing

education. License Requirements for Physicians, N.Y. State Educ. Dep’t,

https://www.op.nysed.gov/professions/physicians/license-requirements

[https://perma.cc/5QAU-C4QJ]. A physician’s registration is good for two years

and must be renewed. N.Y. General Information & Policies. If the physician is not

practicing, they may place their registration on inactive status free of charge.

Online Registration Renewal, N.Y. State Educ. Dep’t, https://www.op.nysed.gov/

registration-renewal/online-registration-renewal [https://perma.cc/RG8S-YJR5]

(select the underlined text titled “How to Request Inactive Status Online”).

Likewise, Dr. Marfuggi had become a “retired” licensee upon his 2019

retirement in New Jersey. New Jersey recognizes the status of a “retired” licensee

who is licensed but not authorized to practice medicine. See N.J. Stat. Ann.
§ 45:9-6.1 (West 2020) (“The certificate of registration which shall be issued to a

retired physician shall state, among other things, that the holder has been

licensed to practice in New Jersey, but that during his retirement he shall not so

practice.”).

Iowa also has a category of physicians who are licensed but inactive and

ineligible to practice. Under Iowa law, “[a] physician whose license is inactive

continues to hold the privilege of licensure in Iowa but may not practice medicine

under an Iowa license until the license is reinstated to current, active status.”
Iowa Admin. Code r. 653–9.14(1)(c). “A licensee whose license is inactive or
7

lapsed shall not engage in the practice of the profession until the license is

reactivated or reinstated.” Iowa Code § 147.10(2) (2020); see also Iowa Admin.

Code r. 653–9.1 (“ ‘Current, active status’ means a license that is in effect and

grants the privilege of practicing . . . medicine and surgery . . . .”).

Clearly, Dr. Marfuggi would have qualified as a standard-of-care expert if

he had signed the certificate of merit affidavit and the expert report in 2018,

before his retirement. The fighting issue in this case is whether Dr. Marfuggi was

“licensed to practice” in 2020, notwithstanding his retirement and the inactive

and retired status of his licenses.

“When interpreting the meaning of a statute, we start with the statute’s

text.” Calcaterra v. Iowa Bd. of Med., 965 N.W.2d 899, 904 (Iowa 2021). “If

statutory language in its proper context is unambiguous, we do not look past the

plain meaning of the words.” Id.

As we have explained,

“A statute is ambiguous if reasonable minds could differ or be
uncertain as to the meaning of the statute.” We have said that
“[a]mbiguity may arise from specific language used in a statute or
when the provision at issue is considered in the context of the entire
statute or related statutes.” In other words, even if the meaning of
words might seem clear on their face, their context can create
ambiguity.

That is because we read statutes as a whole rather than
looking at words and phrases in isolation.

Iowa Ins. Inst. v. Core Grp. of the Iowa Ass’n for Just., 867 N.W.2d 58, 72 (Iowa

2015) (alteration in original) (quoting Mall Real Est., L.L.C. v. City of Hamburg,

818 N.W.2d 190, 198 (Iowa 2012)).

Section 147.139 imposes several requirements. The expert must be

currently “licensed to practice in the same or a substantially similar field as the
defendant.” Iowa Code § 147.139(1). The expert must have “actively practiced”
8

(or have been a qualified instructor) during the five years prior to the act or

omission in question. Id. § 147.139(2). And if the defendant is a licensed

physician, the expert must also be “licensed” in a state. Id. § 147.139(4)(a).

Hummel argues that “licensed to practice” means nothing more than

“licensed.” She maintains that if the legislature wanted to impose an active

practice requirement, it would have said so. She emphasizes that the entire

phrase reads “licensed to practice in the same or a substantially similar field as

the defendant,” and that the point of the word “practice” is simply to assure that

the expert has been engaged in the same field as the defendant. Id. § 147.139(1).

Dr. Smith, on the other hand, insists that Hummel’s interpretation “effectively

reads ‘to practice’ out of the statute.”

On our first pass, we find that the term “licensed to practice” is ambiguous.

The text seems to favor Dr. Smith. It is framed in the present tense—“is licensed

to practice”—and the undisputed facts are that Dr. Marfuggi could not legally

practice medicine when he signed the certificate of merit affidavit and the expert

report. He was licensed but not licensed to practice.

Yet reasonable minds could differ. Reading the statute as a whole, it is

plausible that “to practice” should be coupled primarily with “in the same or a
substantially similar field as the defendant” and that the effect of the phrase is

to require that the expert possess a license covering the same or a substantially

similar field as the defendant, whether active or not. This is seemingly bolstered

by the separate requirement imposed by section 147.139(2) that in the five years

preceding the act or omission alleged to be negligent, the expert must have

“actively practiced in the same or a substantially similar field as the defendant

or was a qualified instructor at an accredited university in the same field as the

defendant.” Id. § 147.139(2). In Hummel’s view, section 147.139(2) addresses the
extent to which the expert must be—or must have been—active, and section
9

147.139(1) addresses whether or not the expert has a license and is in good

standing. Given this ambiguity, we will also consult other tools of statutory

interpretation. See State v. Doe, 903 N.W.2d 347, 351 (Iowa 2017).

One tool is the presumption against superfluous words. See Iowa Ins. Inst.,

867 N.W.2d at 75; see also Iowa Code § 4.4(2) (setting forth the presumption that

“[t]he entire statute is intended to be effective”). Under Hummel’s proposed

interpretation, the first sentence of section 147.139(1) could omit the phrase “to

practice” and still convey the same meaning. If we want to give separate meaning

to the phrase “to practice,” we need to read that phrase as requiring the expert

to possess a license that actually authorizes practice.

Hummel argues that Dr. Smith’s interpretation also leads to extra words.

That is, it creates a redundancy between the first sentence of section 147.139(1),

which requires that the expert be presently licensed to practice in the same or a

similar field as the defendant, and section 147.139(2), which requires that the

expert have actively practiced or taught in the same or a similar field as the

defendant during the five years preceding the alleged act or omission. But that

isn’t quite so. For one thing, the timeframes are different: section 147.139(1)

focuses on the time when the expert is performing a specific role in the case;
section 147.139(2) focuses on the five years preceding the act or omission. In

addition, Hummel overlooks that an expert could have a license that authorizes

practice without actually being engaged in practice or teaching; that would still

satisfy section 147.139(1) as interpreted by Dr. Smith.

We also interpret statutes to favor reasonable results. See Iowa Ins. Inst.,

867 N.W.2d at 75; see also Iowa Code § 4.4(3) (setting forth a presumption that

“[i]n enacting a statute . . . [a] just and reasonable result is intended”); id. § 4.6(5)

(indicating that when a statute is ambiguous, we may consider “[t]he
consequences of a particular construction”). One could argue that it shouldn’t
10

matter whether an expert holds a current, active license so long as the expert is

actively engaged in the same field of medicine at the time of the act or omission

and is still technically licensed and in good standing. Who cares about anything

else? Still, the legislature might have concluded that there is a benefit to

requiring experts in medical malpractice cases not to be retired or inactive. An

expert with a license authorizing the practice of medicine has an ongoing role in

the medical field and, in the legislature’s view, might be more careful in passing

judgment on another healthcare provider.

Another relevant interpretive consideration is what the phrase “license to

practice” means when used elsewhere in the Iowa Code. See State v. Richardson,

890 N.W.2d 609, 618 (Iowa 2017) (“One possible tool is to examine how the

phrase . . . is used elsewhere in the Iowa Code.”). Generally, the phrase means

that the person has the present legal ability to practice in the field. In fact,

chapter 147 frequently uses “license” and “license to practice” interchangeably,

such that the word “license” when used alone means an active license. Consider

the following instances where “license” in isolation refers to an active license:

Iowa Code section 147.2(1) provides that a person shall not practice medicine

without a “license for that purpose,” and section 147.7(1) provides that a board
“may require every person licensed by the board to display the license and

evidence of current renewal publicly in a manner prescribed by the board.”

By contrast, chapter 147 equates an “inactive license” with a “lapsed”

license that needs to be reactivated before it can be used. Iowa Code section

147.10(1) provides, “Every license to practice a profession shall expire in

multiyear intervals and be renewed as determined by the board upon application

by the licensee.” Iowa Code section 147.10(2) goes on: “Failure of a licensee to

renew a license within the grace period shall cause the license to become inactive
or lapsed. A licensee whose license is inactive or lapsed shall not engage in the
11

practice of the profession until the license is reactivated or reinstated.” See also

id. § 147.11(1) (“A licensee who allows the license to become inactive or lapsed

by failing to renew the license, as provided in section 147.10, may reactivate the

license upon payment of a reactivation fee and compliance with other terms

established by board rule.”); Iowa Admin. Code r. 653–9.14(1)(a) (“ ‘Inactive

status’ may include licenses formerly known as delinquent, lapsed, or retired.”).

Someone whose license has become inactive is, in the eyes of the foregoing

provisions of Iowa law, licensed in name but not substance.

Iowa Code section 147.49 states, “A board shall, upon presentation of a

license to practice a profession issued by the duly constituted authority of

another state with which this state has established reciprocal relations . . .

license the applicant to practice in this state.” In this context, “license to

practice” clearly means an active license. Were the phrase “license to practice”

to be read to include inactive and retired licenses, the Iowa Board of Medicine

would be compelled to grant licensure to physicians from reciprocal states who

had long ceased practicing medicine and whose licenses had lapsed many years

ago.

We may also consider legislative history. Iowa law provides that in
interpreting an ambiguous statute, we may consider “[t]he circumstances under

which the statute was enacted” and “[t]he legislative history.” Id. § 4.6(2)–(3); see

also Iowa Ins. Inst., 867 N.W.2d at 76. The bill explanation for the 2017

legislation states,

The bill provides standards for an expert witness in a medical
malpractice case. The bill provides that a person is only qualified to
serve as an expert witness in a medical malpractice case if the
person is a licensed health care provider, is in good standing in each
state of licensure, and in the five years preceding the act or omission
alleged to be negligent, has not had a license in any state revoked or
suspended . . . .
12

H.F. 487, 87th G.A., 1st Sess., explanation (Iowa 2017). This summary of the

legislation indicates that a person can serve as an expert if the person is “a

licensed health care provider.” It does not indicate that the license must be active

or that it must authorize practice. We have relied on bill explanations in the past

as interpretive aids, noting that the internal rules governing the general

assembly require such explanations to be accurate. See Iowa Ins. Inst.,

867 N.W.2d at 76; Star Equip., Ltd. v. State, 843 N.W.2d 446, 454 (Iowa 2014).

But we have declined to follow such explanations when they are inconsistent

with the text of the legislation. Borst Bros. Const., Inc. v. Fin. of Am. Com., LLC,

975 N.W.2d 690, 701–02 (Iowa 2022).

While the matter is not free from doubt, when we weigh all of these

considerations together, we conclude that “license to practice” as used in section

147.139(1) requires that the expert currently possess a license that authorizes

practice. That is the more logical reading of the actual text. It is not logical to say

that “to practice” modifies the language that follows it but not the language that

precedes it. Rather, we are dealing with an infinitive that connects both. The

physician has a license. What kind of license? A license to practice in the same

or substantially similar field as the defendant.
Also, Dr. Smith’s interpretation is more consistent with how terms like

“license” and “license to practice” are used elsewhere in chapter 147. And we

avoid redundancy if we conclude that the term “to practice” was included in

section 147.139(1) to avoid the implication that other forms of licensure, such

as inactive or retired status, would be enough.

While our interpretation of this 2017 statutory revision is a matter of first

impression, it is not made in a vacuum. Several of our sister states with similar

statutes concerning expert testimony have come to the same conclusion.
13

Louisiana law requires that experts testifying in a medical malpractice

case must be “licensed to practice medicine” in Louisiana or any other state or

be “a graduate of a medical school accredited by the American Medical

Association’s Liaison Committee on Medical Education or the American

Osteopathic Association.” La. Stat. Ann. § 9:2794(D)(1)(d) (2020). In the case of

Benjamin v. Zeichner, the plaintiffs relied on the testimony of a doctor whose

license had become inactive. See 113 So. 3d 197, 204 (La 2013) (per curiam).

When analyzing “the legislative requirement that a physician ‘is’ licensed to

practice medicine at the time of his trial testimony,” the Louisiana Supreme

Court concluded that “[t]he clear language of the statute requires current

licensure.” Id. at 202. Because the doctor’s inactive license was not a license to

practice and there was no indication he had attended a school accredited by the

appropriate association, the Louisiana Supreme Court affirmed the district

court’s decision to grant a directed verdict for failure to establish a prima facie

case of medical malpractice. Id. at 203–04.

Similarly, Ohio law requires that physicians testifying in medical

malpractice claims be “licensed to practice medicine and surgery, osteopathic

medicine and surgery, or podiatric medicine and surgery by the state medical
board or by the licensing authority of any state.” Ohio Evid. R. 601(B)(5)(a). In

the case of May v. Donich Neurosurgery & Spine, L.L.C., the plaintiffs offered

opinions from a physician whose license had expired about four months prior to

signing an affidavit of merit for the case. No. 29215, 2019 WL 5212591, at *1

(Ohio Ct. App. Oct. 16, 2019). The defendants moved to strike the expert and

dismiss the case. Id. Despite the plaintiffs’ explanation that the expert was

attempting to renew his license at that time, the court affirmed the decision to

strike the expert’s testimony and dismiss the case because at the time of signing
14

the affidavit, the physician had not been licensed to practice and therefore could

not be admitted as an expert. Id. at *5.

In Pennsylvania, an expert delivering medical testimony concerning

standard of care must “[p]ossess an unrestricted physician’s license to practice

medicine in any state or the District of Columbia.” 40 Pa. Stat. and Cons. Stat.

§ 1303.512(b)(1) (West 2020). In the case of Bethea v. Philadelphia AFL-CIO

Hospital Association, the plaintiff proposed as her expert a retired general

surgeon whose medical license had expired three years prior to the preparation

of his expert report. 871 A.2d 223, 225 (Pa. 2005). The court found that his

expired license was not a license to practice as required by statute and affirmed

the dismissal of the plaintiff’s claim. Id. at 226–27.

Thus, our conclusion that Iowa law requires medical malpractice experts

to possess active licenses would not put us on an island. For all the reasons

stated—including statutory text, rules of interpretation, and the views of other

states—we conclude that a qualified expert under Iowa Code section 147.139

must possess a current active license to practice.

We now turn to Hummel’s alternative argument that she substantially

complied with the relevant statutory requirements. See Iowa Code § 147.140(6)
(requiring dismissal on motion when the plaintiff fails to “substantially comply”

with the certificate of merit affidavit requirement); Hantsbarger v. Coffin,

501 N.W.2d 501, 504 (Iowa 1993) (en banc) (recognizing a substantial

compliance exception to the requirements of section 668.11). “Substantial

compliance means ‘compliance in respect to essential matters necessary to

assure the reasonable objectives of the statute.’ ” McHugh v. Smith, 966 N.W.2d

285, 288–89 (Iowa Ct. App. 2021) (quoting Hantsbarger, 501 N.W.2d at 504).

Having concluded that the statute requires experts to be currently licensed to
practice, we do not believe that an affidavit from a physician who retired in 2019
15

and took inactive or retired status at that time amounts to substantial

compliance.

Because Dr. Marfuggi did not have a license to practice medicine when he

signed the certificate of merit affidavit or the expert report, we reverse and

remand with directions that judgment be entered in favor of the defendants.

V. Conclusion.

For the foregoing reasons, we reverse the district court’s order and remand

for further proceedings consistent with this opinion.

REVERSED AND REMANDED.
Christensen, C.J., and Waterman, McDonald, and Oxley, JJ., join this

opinion, and McDermott, and May, JJ., join in part. McDermott, J., files an

opinion concurring specially, in which May, J., joins.
16

#22–1572, Hummel v. Smith

MCDERMOTT, Justice (concurring specially).
I join today’s opinion except for the part that ventures into legislative

history. The majority correctly construes the statute’s use of “license to practice”

in Iowa Code § 147.139(1) as requiring that the expert currently possess a license

that authorizes practice in the defendant’s field. But while applying valid canons

of statutory construction on its analytical path, the majority takes an ill-advised

detour to evaluate the legislative history of the statute, citing the “bill

explanation” that initially accompanied the legislation. This digression into the

legislative history is unnecessary and, in fact, undermines the majority’s

otherwise rigorous textual analysis.

“The law is what the law says . . . .” Bank One Chi., N.A. v. Midwest Bank

& Tr. Co., 516 U.S. 264, 279 (1996) (Scalia, J., concurring in part and concurring

in the judgment). The law is not the statements or beliefs or explanations of

particular legislators or legislative staff. We must apply statutes “as written, not

by what the legislature might have said or intended.” State v. Macke, 933 N.W.2d

226, 233 (Iowa 2019). The text’s meaning “is to be found not in the subjective,

multiple mind of Congress but in the understanding of the objectively reasonable
person.” Frank H. Easterbrook, The Role of Original Intent in Statutory

Construction, 11 Harv. J.L. & Pub. Pol’y 59, 65 (1988).

Reliance on legislative history is built on the flawed premise that when

construing statutes we are looking for the intent of the legislature rather than

the meaning of a statute’s text. Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 375 (2012) [hereinafter Scalia & Garner]. But

legislative bodies do not possess some freestanding “intent” that courts can

divine. For this reason, “[w]e do not inquire what the legislature meant; we ask
only what the statute means.” Schwegmann Bros. v. Calvert Distillers Corp., 341
17

U.S. 384, 396–97 (1951) (Jackson, J., concurring) (quoting Oliver Wendell

Holmes, The Theory of Legal Interpretation, in Collected Legal Papers 203, 207

(1920)).

A broad body of legal canons has formed around how courts should

interpret statutory text. See generally Scalia & Garner (detailing numerous

canons of statutory interpretation). But no similar canons exist for all the

different legislative histories one might find. “Since there are no rules as to how

much weight an element of legislative history is entitled to, it can usually be

either relied upon or dismissed with equal plausibility.” Antonin Scalia, A Matter

of Interpretation: Federal Courts and the Law 35–36 (1997). Proper constraints

on judicial decision-making that derive from the text—constraints consistent

with, if not critical to, the nature of our democratic system—come undone when

we resort to legislative history as an interpretive tool.

In Iowa, a bill must pass both the senate and house of representatives and

be signed by the Governor to become law. Iowa Const. art. III, §§ 15–16. The

preamble and bill explanation are attached at the beginning and end of a bill

when introduced, but neither part is voted on, and neither becomes part of our

codified law. See, e.g., Star Equip., Ltd. v. State, 843 N.W.2d 446, 454 n.3 (Iowa
2014) (“The legislature enacts the bill—not the accompanying explanation.”)

Ours is a system of written laws, and people can readily understand that

they will be bound by a law’s actual text. But people have no way of knowing

that they might also be bound by explanatory passages that a sponsoring

legislator includes when the bill is introduced in the legislature or bound by some

individual legislator’s statements uttered in the course of debate on a bill. And,

with any particular piece of legislative history, people “would not know any way

of anticipating what would impress enough members of the Court to be
controlling” in any event. Schwegmann Bros., 341 U.S. at 396 (Jackson, J.,
18

concurring). Our interpretation should be based on what the text says and fairly

implies without resorting to legislative history, which neither controls nor

clarifies the law’s meaning.

May, J., joins this special concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9914049. Public record. Not legal advice.