STATE of Iowa, Appellee, v. Kelvin ROBINSON, Appellant.
No. 98-1040.
Supreme Court of Iowa.
Oct. 11, 2000.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, and Stephen Holmes, County Attorney, for appellee.
TERNUS, Justice.
The defendant, Kelvin Robinson, challenges his conviction for sexual exploitation of a minor under
I. Background Facts and Proceedings.
This case began with the execution of a search warrant for the defendant‘s dormitory room. The authorities seized computer hardware and software bеlonging to the defendant that contained numerous images of minors engaged in prohibited sex acts with other minors and adults. The defendant admitted that he had transferred these images from the Internet, but asserted that he had done so in connection with the preparation of a paper for a class he was taking at Iowa State University. The police also discovered on his computer and in hard copy form a report on child prostitution.
The State charged the defendant with sexual exploitation of a minor, a serious misdemeanor. See
Subsequently, the defendant filed a motion to dismiss, contending (1) that the statutory exemption for the use of materials for educational purposes applied, see
On the morning the trial was scheduled to start, the defendant entered an Alford plea to the charge of sexual exploitation of a minor. This plea was made pursuant to an agreement with the State whereby the State recommended a suspended sentence, the mandatory minimum fine, a two-year maximum probationary period, and a psychological and sexual evaluation. The court accepted the defendant‘s plea and he was subsequently sentenced to jail for one year, and ordered to pay the minimum statutory fine, plus costs and attorney fees. The court suspended the defendant‘s jail term and placed him on probation for eighteen months. The defendant was ordered to undergo any psychological or psychiatric tests recommended by his рrobationary supervisor, and to complete any treatment or counseling recommended as a result of such tests.
The defendant did not file a motion in arrest of judgment to challenge the adequacy of his guilty plea. See Iowa R.Crim. P. 23(3). Instead, he filed this
II. Vagueness Claim.
A. Nature of the defendant‘s vagueness claim—facial or as applied. The defendant does not make clear in his brief the precise nature of his vagueness challenge, i.e., whether he claims the statutory exemption is vague as applied or is facially vague. We note that hе made no facial vagueness claim in the trial court. Therefore, he has not preserved any error with respect to whether the statutory exemption is vague on its face. See State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997) (“Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal.“); State v. Eames, 565 N.W.2d 323, 326 (Iowa 1997) (holding that an issue must be presented to and ruled upon by the district court before it can be asserted on appeal).1 Consequently, we proceed to consider his vague-as-applied claim.
B. Waiver of claim by pleading guilty. In our Hunter case, this court held that a guilty plea did not waive the defendant‘s right to claim on appeal that the statute under which he was charged was unconstitutionally vague. 550 N.W.2d at 462 n. 1. Accordingly, we proceeded in Hunter to consider on its merits a vague-as-applied challenge. Id. at 465-66.
In concluding that the alleged constitutional error had not been waived in Hunter, this court relied on two cases applying the rule that a guilty plea does not waive a defense that the indictment or information charges no offense. Id. at 462 n. 1 (citing State v. White, 545 N.W.2d 552, 554 (Iowa 1996); State v. Jaeger, 249 N.W.2d 688, 690 (Iowa 1977)). We first adopted this exception to the general rule that a guilty plea wаives all defenses in Jaeger. 249 N.W.2d at 690 (noting that “this court is faced with an issue of first impression“). Our formulation of the exception took the following form:
We hold that if an indictment or county attorney‘s information facially shows a charge on which the State may not constitutionally prosecute, then a plea of guilty subsequent to an adverse ruling on a demurrer does not waive the claimed unconstitutionality as “no offense is stated.”
In Hunter, however, this court extended the exception, without discussion or analysis, to encompass a claim that the statute was vague as applied. 550 N.W.2d at 465. In retrospect, we think we went too far. To employ the exception when the challenge to the conviction is based on an as-applied vagueness claim would ignore the underlying rationale of the еxception. That rationale is that the court will not uphold a conviction when the charge—judged on its face—is one that the state may not constitutionally prosecute. Jaeger, 249 N.W.2d at 690 (citing Menna v. New York, 423 U.S. 61, 63, 96 S.Ct. 241, 242, 46 L.Ed.2d 195, 198 (1975); Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 2103-04, 40 L.Ed.2d 628, 636 (1974)). To allow a challenge that does not rest on the premise that the indictment or information charges no offense would result in an exception that swallows the rule. In other words, if an as applied vagueness challenge is not waived by a guilty plea, what would be the rationale for holding that an equal protection challenge is waived? There would be no logical basis to distinguish a vague-as-applied claim from any other constitutional challenge to the statute. We think it ill-advised to adopt a rule that would create such inroads on our general rule that a guilty plea waives all defenses.
Therefore, we disavow Hunter to the extent that it stands for the proposition that a guilty plea does not waive an as applied vagueness challenge. We reaffirm our holding in Jaeger that the only defenses that are not waived by a guilty plea are those based on the ground that the indictment or information shows on its face that the charge is one that the State may not constitutionally prosecute.
We now consider the effect of our overruling of Hunter on the case before us. This court has the power in overruling a prior decision to give the new rule only prospective application. See Beeck v. S.R. Smith Co., 359 N.W.2d 482, 484 (Iowa 1984) (“Courts may hold, however, that a particular overruling decision should in fairness have only prospective application.“). This power should be exercised here. The defendant and his counsel understandably could have relied upon our decision in Hunter in deciding to enter a guilty plea, assuming that such a plea would not waive a claim that the statutes defining the defendant‘s crime were unconstitutionally vague as applied. It would be unfair in the face of such reliance to announce a new rule and apply it to this case and pending cases involving the same chronology of events. If we were to apply the new rule retroactively, a dеfendant such as Robinson would be left between the proverbial rock and a hard place. On one hand, he would be unable to assert his constitutional vagueness challenge on appeal because his guilty plea would have waived it. On the other hand, the defendant would probably not have a viable ineffective-assistance-of-counsel claim because his attorney‘s reasonable reliance on Hunter would preclude a finding that “counsel‘s performance fell below the normal range of competency.” Horness, 600 N.W.2d at 298 (requiring proof that defense counsel breached an essential duty by performing below the normal range of competency in order to establish an ineffective-assistance-of-counsel claim). This court should avoid such an inequitable result when possible. See Beeck, 359 N.W.2d at 484 (noting that one factor to consider in giving a decision prospective application only is “the inequity imposed by retroactive application“).
We hold, therefоre, that our decision today with respect to the effect of a guilty plea on a vague-as-applied challenge ap-
C. Defendant‘s vague-as-applied claim. Our discussion begins with a review of the statutes under which the defendant was convicted, and an identification of the particular language that the defendant contends is unconstitutionally vague. As noted earlier, the defendant pled guilty to violating
A person who knowingly purchases or possesses a negative, slide, book, magazine, or other print or visual medium depicting a minor engaging in a prohibited sexual act or the simulation of a prohibited sexual act commits a serious misdemeanor.
Of particular relevance to the present case is a statutory exemption for public libraries and educational institutions contained in chapter 728. This exemption states:
Nothing in this chapter prohibits the use of appropriate material for educational purposes in any accredited school, or any public library, or in any
educational program in which the minor is participating. Nothing in this chapter prohibits the attendance of minors at an exhibition or display of art works or the use of any materials in any public library.
The defendant also asserted in a pretrial motion that the exemption was vague as applied to him. His vagueness argument focused on the language “appropriate material,” and the inability of an ordinary person to understand what that language meant. The State‘s response was that
On appeal, the defendant argues that “[i]f ‘appropriate material’ ... means only non-obscene material, there is no need for the section to exist.”2 The State, in response, claims that the exemption does not protect the possession of child
D. Applicable legal principles governing constitutional vague-as-applied claims. We presume a statute is constitutional. See Jim O. Inc. v. City of Cedar Rapids, 587 N.W.2d 476, 478 (Iowa 1998). Thus, “[t]he unconstitutional vagueness of a criminal statutе must be demonstrated beyond a reasonable doubt.” State v. Duncan, 414 N.W.2d 91, 95 (Iowa 1987). The party challenging a statute on vagueness grounds must “negate every reasonable basis upon which the statute might be sustained.” Jim O. Inc., 587 N.W.2d at 478. Only where the statute “clearly, palpably and without doubt infringes the constitution” will this court declare it to be unconstitutionally vague. American Dog Owners Ass‘n v. City of Des Moines, 469 N.W.2d 416, 417 (Iowa 1991).
A penal statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Hunter, 550 N.W.2d at 463 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983)); accord American Dog Owners Ass‘n, 469 N.W.2d at 417 (holding that penal statute must give “a person of ordinary intelligence” notice of what is prohibited). In considering a vague-as-applied challenge, we examine the statute on its face to determine whether the defendant‘s conduct clearly falls outside the exemption “under any construction.” Hunter, 550 N.W.2d at 465. “The fact that the statute may be vague as applied to other factual scenarios is irrelevant to this analysis.” Id.; accord State v. Price, 237 N.W.2d 813, 817 (Iowa 1976).
It is also crucial to note that “[t]he degree of vagueness that the constitution tolerates—as well as the relative importance of fair notice and fair enforcement—depend in part on the nature of the enactment.” Jim O. Inc., 587 N.W.2d at 478 (quoting Duncan, 414 N.W.2d at 96). Thus, a law that interferes with the exercise of a fundamental right would be examined more closely than one that does not. See id. At this point, we digress from a recitation of the applicable legal principles to identify the right at issue. Neither the defendant‘s right to pursue higher education, his right to study the vices of society, nor his right to communicate his ideas with respect to such vices are at issue here. The conduct at issue here is the defendant‘s right to possess child pornography. That “right” is not constitutionally protected. See Osborne v. Ohio, 495 U.S. 103, 111, 110 S.Ct. 1691, 1697, 109 L.Ed.2d 98, 110 (1990) (holding that the state “may constitutionally proscribe the possession and viewing of child pornography“); New York v. Ferber, 458 U.S. 747, 761, 102 S.Ct. 3348, 3357, 73 L.Ed.2d 1113, 1125 (1982) (rejecting, with respect to child pornography, standard that would require the material to have no “serious literary, artistic, political, or sciеntific value,” noting that “[i]t is irrelevant to the child [who has been abused] whether or not the material ... has a literary, artistic, political, or social value“); Ferber, 458 U.S. at 774, 102 S.Ct. at 3364, 73 L.Ed.2d at 1134 (O‘Connor, J., concurring) (noting that majority opinion does not require the state to permit the possession of child pornography that has “serious literary, scientific, or educational value“).
In considering the vagueness of a statutory term, we apply the following rule:
A statutory term provides fair warning if the meaning of the word “is [to be] fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning.”
Hunter, 550 N.W.2d at 465 (quoting State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974)). An evaluation of the vagueness of a statute also requires that the statute be
E. Analysis of vagueness claim. We think that the defendant‘s vague-as-applied challenge fails because the statutory exemption does not apрly to him “under any construction.” To demonstrate the validity of this conclusion, we begin with an examination of the exemption and its statutory history.
Nothing in this Act prohibits the use of appropriate material for educational purposes in any accredited school, or any public library, or in any educational program in which the minor is participating. Nothing in this Act prohibits the attendance of minors at an exhibition or display of art works or the use of any materials in any public library.
1974 Iowa Acts ch. 1267, § 5 (emphasis added) (codified at
To understand the statutory scheme as it was originally designed, it is also helpful to review the statutory definition of “obscene material“:
“Obscene material” is any material depicting or describing the genitals, sex acts, masturbation, excretory functions or sado-masochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political or artistic value.
1974 Iowa Acts ch. 1267, § 1 (emphasis added) (codified at
The legislature apparently found the prohibitions in chapter 728 to be inadequate regulation in this area because two provisions focused on hard-core pornography and child pornography were subsequently added to the obscenity chapter. In 1976, the general assembly enacted a statute prohibiting the sale of “patently offensive” materials, which are more particularly described in the statute and are commonly known as “hard-core pornogra-
Of particular relevance to the present discussion is the second section added by the legislature, which pertains to child pornography. In 1978, the legislature enacted a statute prohibiting the sexual exploitation of a minor by causing the minor to engage in a prohibited sexual act intending that the act be photographed or filmed. 1978 Iowa Acts ch. 1188, § 1 (codified at
An examination of
With this context in mind, we now examine whether under any reasonable construction of the educational exemption a person of ordinary intelligence could believe that the exemption permits the possession of child pornography contrary not only to the express prohibition of
Preliminarily, we note that the educational exemption protects only the “use” of appropriate material, i.e., the employment of the material in some activity. See Webster‘s Third New International Dictionary 2523 (unabr. ed.1993) (defining “use” as “employment“). It does not specifically authorize the possession of appropriate material. Thus, the exemption presupposes lawful possession. Although сhapter 728 does not prohibit the possession of “obscene material,” it does prohibit the possession of child pornography. Therefore, it would be inconsistent to construe the exemption as authorizing the use of contraband—material that one cannot lawfully possess.
There is another defect in the defendant‘s argument that the exemption could reasonably be understood to apply to him. As the defendant acknowledges in his brief, this exemption was intended by the legislature to provide some leeway to libraries and educational institutions that would otherwise have to determine whether material in their legitimate possession was, nonetheless, obscene and not viewable by minors. Absent the exemption, these entities would have to decide whether the materials were “suitable” for minors and had “serious literary, scientific, political or artistic value” in order to decide whether such materials could be made available to minors. See
The purpose of this exemption is simply inapplicable to child pornography. Child pornography is contraband regardless of whether it has any “serious literary, scientific, political or artistic value.” See Ferber, 458 U.S. at 761, 102 S.Ct. at 3357, 73 L.Ed.2d at 1125; id. at 774, 102 S.Ct. at 3364, 73 L.Ed.2d at 1134 (O‘Connor, J., concurring). Child pornography is contraband in anyone‘s hands, minor or adult. Therefore, libraries and educational institutions have no occasion to determine whether child pornography is suitable for minors or has “serious literary, scientific, political or artistic value.” Accordingly, there is no need for an exemption in this area, as there is in the case of obscene material, where such determinations must necessarily be made.
Ignoring for the moment these fundamental flaws in the defendant‘s contention that the exemption applies to him, we turn now to a consideration of whether the phrase “appropriate material” is reasonably susceptible to a construction that includes child pornography. We think it is not. The dictionary definition of the word “appropriate” is “specially suitable : FIT, PROPER.” Webster‘s Third New International Dictionary 106 (unabr. ed.1993). Whatever doubts there may be about what constitutes “appropriate material” under other facts, we think there is no doubt that child pornography does not fit within the definition of “appropriate.”
It is important to keep in mind that the material at issue here is not merely “obscene material,” as defined in the statute. At issue are depictions of
- children engaged in sexual contact, actual or simulated, by “penetration of the penis into the vagina or anus; contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person; contact between the finger or hand of one person and the genitalia or anus of another person,”
Iowa Code § 702.17 (defining “sex act“), - children engaged in an act of bestiality, see
id. § 728.1(6)(b) , - children having their pubes or genitalia fondled or touched, see
id. § 728.1(6)(c) , children fondling or touching the pubes or genitalia of another person, see id. § 728.1(6)(d) ,- children being subjected to “[s]adomasochistic abuse ... for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the abuse,”
id. § 728.1(6)(e) , - children subjecting another person to “[s]adomasochistic abuse ... for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the abuse,”
id. § 728.1(6)(f) , and - children nude “for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the nude minor,”
id. § 728.1(6)(g) .
See
Given this statutory scheme, it would be unreasonable to believe that child pornography would ever be appropriate or suitable, even in an educational or literary environment. See generally Freeman v. Commonwealth, 223 Va. 301, 288 S.E.2d 461, 465 (1982) (noting, in considering constitutional vagueness challenge to similar statute, that “the paramount legislative goal was to protect children from the harm they suffer when they are induced tо become models for such materials, irrespective of the motive or intent of the offender” (emphasis added)). As the United States Supreme Court noted in Ferber, if “visual depictions of children performing sexual acts or lewdly exhibiting their genitals [is] an important and necessary part of a[n] ... educational work,” options other than using depictions of actual children are available. 458 U.S. at 763, 102 S.Ct. at 3358, 73 L.Ed.2d at 1126. These alternatives included using “a person over the statutory age who perhaps looked younger,” or other “[s]imulation outside of the prohibition of the [child pornography] statute.” Id.
Our reasoning that the statutory exemption is not vague as applied to the defendant can perhaps best be summarized as follows: If it is illegal and correspondingly inappropriate to produce child pornography, and is illegal/inappropriate to distribute child pornography, and is illegal/inappropriate to purchase child pornography, and is illegal/inappropriate to possess child pornography, how is it reasonable to construe
We have not ignored the defendant‘s assertion that an interpretation of the exemption to exclude child pornography renders the exemption meaningless; we simply do not agree with this conclusion. Even though the exemption does not protect the possession of child pornography, it continues to encompass obscene materials falling outside the scope of
In summary, the defendant has failed to sustain his burden to show that
III. Disposition.
The defendant also asserts that his trial counsel was ineffective in allowing him to waive his First Amendment challenge to the statute by pleading guilty. Both the defendant and the State ask that we preserve this claim for a possible post-conviction relief action. Therefore, we affirm the defendant‘s conviction, but preserve his ineffective-assistance-of-counsel claim.
AFFIRMED.
All justices concur except CARTER, J. and McGIVERIN, C.J., who concur specially, and SNELL, J., who dissents.
CARTER, Justice (concurring specially).
I agree that the defendant‘s conviction should be affirmed. His guilty plea waived any contention that the statute is vague as applied. I do not believe that we may only apply this legal conclusion in a prospective manner. Consequently, I would not reach the constitutional challenge to the statute as applied to defendant. On the merits of that issue, I agree that the statute is not vague, as applied, but I disagree with the suggestion that the words “appropriate material” for educational or library use may never under any circumstances include visual depictions of children that might be described as child pornography.
McGIVERIN, C.J., joins this special concurrence.
SNELL, Justice (dissenting).
I respectfully dissent.
The majority has reached its result by invading the domain of the legislature which, under our structure of government, is given the sole responsibility to create the law. In so doing, it has violated the separation of powers doctrine and concomitantly inverted our cardinal rule of statutory сonstruction. See State v. Wagner, 596 N.W.2d 83, 89 (Iowa 1999). That rule directs us to look first to the words of the statute to determine if its meaning is ambiguous. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 363 (Iowa 2000). If it is, only then may the court resort, for help in finding its meaning, to legislative history. State v. Rodgers, 560 N.W.2d 585, 586 (Iowa 1997).
Instead of following this procedure of ageless acceptance, the majority has begun its analysis by charting the legislative history of the obscenity statutes. See, e.g., Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 379-80; State v. Burke, 368 N.W.2d 182, 185 (Iowa 1985); Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 241 Iowa 358, 361-62, 41 N.W.2d 1, 3-4 (1950); Smith v. Sioux City Stock Yards Co., 219 Iowa 1142, 1148, 260 N.W. 531, 534 (1935); Slaats v. Chicago, Milwaukee & St. Paul Ry., 149 Iowa 735, 743, 129 N.W. 63, 66 (1910). From this it concludes that, although there are no statutory words that say so, the legislature must have intended to eliminate all exemptions for the use of appropriate material for educational purposes that have child pornography as its subject matter. This con-
I dissent because the majority has strayed from our charge as a separate branch of government and from our traditional track of analysis in statutory construction cases. In following its course of analysis, the majority has backed into its result. Its conclusion that the exemption statute is not ambiguous and a nullity because of the legislative history of other statutes left nothing to construe. The statutory construction doctrine was left in its wake.
I believe the plain meaning of the words in the exemption statute, rather than legislative history, dictates the result in this case. If a statute is not ambiguous, this court need not look any further. It is improper to use legislative history of other statutes to come to a conclusion that a statute is not ambiguous. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 365; State v. McSorley, 549 N.W.2d 807, 809 (Iowa 1996).
I. Nothing Means Nothing
The language of the exemption is very clear.
Nothing in this chapter prohibits the use of appropriate material for educational purposes in any accredited school, or any public library, or in any educational program in which the minor is participating. Nothing in this chapter prohibits the attendance of minors at an exhibition or display of art works or the use of any materials in any public library.
The legislature added the crime of child pornography to chapter 728 in the same year the final version of the exemption became effective. 1978 Iowa Acts ch. 1188, § 1 (codifying the prohibition of child pornography at
The legislature had every opportunity to (1) create a new chapter for child pornography so that it would not fall under the exemption, (2) place language in
While I recognize that child pornography is the most deleterious of all obscenity, I cannot ignore the plain meaning of the exemption. The court cannot do the job of the legislature and impose restrictions on the scope of a statute which do not exist. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 379 (“We determine the intent from what the legislature said, not from what it might or should have said.“). As it is written, child pornography is included in the exemption. If child рornography was not meant to fall within the exemption, that is for the legislature to decide by amending the statutory exemption. Moulton v. Iowa Employment Sec. Comm‘n, 239 Iowa 1161, 1172, 34 N.W.2d 211, 216 (1948) (“The court is not at liberty to read into the statute provisions which the legislature did not see fit to incorporate, nor may it enlarge the scope of its provisions by an unwarranted interpretation of the language used.” (quotations and citation omitted)).
Such judicial legislating is expressly prohibited by the separation of powers doctrine. Webster County Bd. of Supervisors v. Flattery, 268 N.W.2d 869, 872-74 (Iowa 1978); Jahnke v. Inc. City of Des Moines, 191 N.W.2d 780, 797 (Iowa 1971) (Reynoldson, J., dissenting). “To subject [a] clearly worded statute to interpretation would usurp the prerogatives of the legislature.... This would effectively deprive the legislature of its power to create and declare [the law].” Burke, 368 N.W.2d at 185. One legal authority has noted: “[T]he enumeration of exceptions from the operation of a statute indicates that it should apply to all cases not specifically excepted.” 2 Jabez Gridley Sutherland, Statutes & Statutory Construction § 4916 (3d ed. 1943 & Supp.1971). In other words:
We are not justified in erecting a bar where the legislature did not so prоvide. The express mention of the one thing implies the exclusion of the other. This rule is expressed in the often quoted Latin phrase “expressio unius est exclusio alterius.” We have said: The legislative intent is expressed by omission as well as by inclusion.
North Iowa Steel Co. v. Staley, 253 Iowa 355, 357, 112 N.W.2d 364, 365 (1961).
The court cannot impose restrictions on a statute which do not exist. “For us to fashion such a rule would simply constitute judicial legislation.” Bruns v. State, 503 N.W.2d 607, 612 (Iowa 1993). “A contrary holding would simply be judicial legislation in the guise of judicial interpretation.” Slager v. HWA Corp., 435 N.W.2d 349, 357 (Iowa 1989). To exclude child pornography from the exemption, as the majority has done, evidenced “more than a modest amount of judicial legislation.” See Shell Oil Co. v. Bair, 417 N.W.2d 425, 429 (Iowa 1987). The majority effectively rewrote the statute.
In another statutory interpretation case, the appellant sought to limit the statute in question to apply only to particular areas. Klaes v. Scholl, 412 N.W.2d 178, 179 (Iowa 1987) (interpreting
In responsе to an attempt to expand a statute to include certain areas not listed, this court held:
Graves v. Eagle Iron Works, 331 N.W.2d 116, 118 (Iowa 1983). That same analysis applies here where the majority limits the exemption statute to what it thinks the statute ought to be limited to. To create an exception to the exemption effectively usurps “the prerogative of the legislature to declare what the law shall be.” State ex rel. Lankford v. Mundie, 508 N.W.2d 462, 463 (Iowa 1993).
The Iowa Constitution expressly separates the judiciary from the other two branches of government. “The powers of the government of Iowa shall be divided into three separate departments—the legislative, executive, and the judicial: and no person charged with the exercise of powers properly bеlonging to one of these departments shall exercise any function appertaining to either of the others....”
It is not within the power of the judiciary to create exceptions to an unambiguous statute which do not exist in the plain language. The province of the judiciary is to construe statutory law, not to make law not passed by the legislature. “[W]hat is desirable or advisable or ought to be is a question of policy, not a question of fact. What is necessary or what is in the best interest is not a fact and its determination by the judiciary is an exercise of legislative power.” Warren County v. Judges of the Fifth Judicial Dist., 243 N.W.2d 894, 903 (Iowa 1976) (quotations and citation omitted); see Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 379.
II. The Only Material in Need of the Exemptiоn Is Child Pornography
“Nothing in this chapter prohibits the use of appropriate material for educational purposes in any accredited school....”
In State v. Schrup, we held that a defendant could not be charged with the mere possession of obscene materials without also having the intent to distribute them. State v. Schrup, 229 Iowa 909, 911, 295 N.W. 427, 428 (1940). The court determined:
The legislature was not concerned by the mere possession of obscene pictures. The purpose of the act is to guard the public morals, to discourage the dissemination of the pictures which tend to corrupt and debauch the morals of those minds [that] are susceptible to such lecherous influences. Hence, thе requirement that to constitute a crime, the possession must be with the intent to sell, loan or give away the obscene pictures.
Id. at 910-11, 295 N.W. at 428 (discussing Iowa Code section 13190 which was an earlier counterpart of
Use of obscene materials by a student in a college class for a report is not consistent with the intent to sell, rent, or loan the material. As such, this student could not be guilty for merely possessing obscene materials without the required in-
If the first sentence of the exemption is not necessary for obscene materials, what other purpose could it have under chapter 728? The obvious reason behind the first sentence of the exemption, “[n]othing in this chapter prohibits the use of appropriate material for educational purposes in any accredited school,” is to exempt child pornography in this limited area. Under the majority‘s conclusion that all child pornography is never appropriate what is the point of this first sentence? The majority opinion gives the first sentence of
III. The Meaning of “Appropriate”
This court has recognized that “we seek a reasonable interpretation and construction which will best effect the purpose of the statute, seeking to avoid absurd results.” State v. Link, 341 N.W.2d 738, 740 (Iowa 1983) (citations omitted). I find that applying child pornography to the exemption does not create an absurd result for the following reasons.
The majority concludes that because child pornography is always inappropriate, “appropriatе material” is not an ambiguous term. The majority looks at “appropriate material” by viewing the nature of the material itself. The exemption should actually be read to define appropriate by its use rather than its nature. The conclusion should follow then that any material used for actual educational purposes will be appropriate. In other words, any material in chapter 728 will be appropriate if it is used for a bona fide educational purpose. The nature of the material is irrelevant because the exemption states that no provision will prohibit the use of such materials in an educational setting.
The majority‘s opinion is wrong because it interprets the exemption in direct opposition to its plain meaning. Effectively the majority rewrites the exemption to state: “Nothing in this chapter, excluding child pornography....” There is no basis for this radical departure from the plain words of the exemption. The court merely states it knows the exemption does not apply to child pornography. Further,
The majority‘s decision has broken the barrier between judging and legislating. This is ill advised, contrary to established law and a hauntingly bad precedent.
I would vacate Robinson‘s guilty plea, reverse Robinson‘s conviction, and remand for dismissal of the charges.
Notes
In response, the State asserts that the exemption applies only to educators. Having reviewеd the defendant‘s pre-trial motion, wherein he alleges a vague-as-applied challenge, and the transcript of the hearing on his motion, we are unable to find any record of the defendant alerting the district court to the claim now being made on appeal. Indeed, the only argument addressed by the district court in its ruling on the defendant‘s vagueness claim was the defendant‘s assertion that the phrase “appropriate material” was unconstitutionally vague. Under these circumstances, the defendant has waived any argument that the language “educational purposes in any accredited school” is vague as applied to him. See McCright, 569 N.W.2d at 607; Eames, 565 N.W.2d at 326. Even if this issue had been preserved, it would not alter the outcome here, because we hold that under no reasonable construction of the statute would a person of ordinary intelligence conclude that the legislature intended to permit the use of child pornography, inside or outside school.As relevant here, the statute permits the material to be used for “educational purposes in any accredited school.” The dispositive question here is whether a reasonable person could read this language to mean that the material could be personally possessed outside school for purposes of a paper or project to be used in school.