IN THE SUPREME COURT OF IOWA
No. 22–2100
Submitted March 21, 2024—Filed May 10, 2024
STATE OF IOWA,
Appellee,
vs.
BRANDON WILLIAM LEE,
Appellant.
Appeal from the Iowa District Court for Linn County, Christopher L.
Bruns, Judge.
The defendant appeals his conviction and sentence for two counts of rob-
bery in the first degree, willful injury causing serious injury, willful injury caus-
ing bodily injury, theft in the first degree, and impersonating a public official.
AFFIRMED. Christensen, C.J., delivered the opinion of the court, in which Waterman,
Mansfield, and McDonald, JJ., joined, and in which May, J., joined except as to
the court’s reliance on the doctrine of legislative acquiescence. McDermott, J., filed a dissenting opinion, in which Oxley, J., joined as to part I, and in which
May, J., joined as to part II.
Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer (argued),
Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Anagha Dixit (argued), Assistant At-
torney General, for appellee. 2
CHRISTENSEN, Justice. The defendant was convicted of, among other things, two counts of
first-degree robbery pursuant to Iowa Code section 711.1 (2022) when he as-
saulted a husband and wife in their home in order to steal $50,000 out of their
safe. On appeal, the defendant asserts there was insufficient evidence to sustain
a conviction for two counts of first-degree robbery. We disagree. The evidence is
sufficient to conclude that the defendant intended to commit two separate and
distinct thefts. Therefore, we affirm both convictions and sentences for first-de-
gree robbery.
I. Background Facts and Proceedings.
On the evening of January 9, 2022, Sandra (Sandy) and Joeseph (Joe)
Henderson (collectively “the Hendersons”) were watching television when there
was a knock at their door. At the door was the defendant, Brandon Lee, a
stranger to the Hendersons. The defendant was wearing a badge around his
neck. He introduced himself as a law enforcement officer and stated he was in-
vestigating the Henderson’s son, Alan. Sandy let him in. The defendant told the
Hendersons he had received a report that they had assaulted Alan. Sandy denied
the accusation, and the defendant began yelling at her. Registering that some- thing may be suspicious, Sandy asked him for his name. The defendant then
punched Sandy in the side of the head and knocked her to the floor. He tried to
tie Sandy’s hands behind her back, but Joe attempted to stop him from doing
so. As a result, the defendant pushed Joe back into his recliner. Sandy then
stood up, and the defendant pushed her onto the couch.
The defendant went to the front door and stated, “[Y]ou guys can come in
now,” but no one entered the home. He then fired his gun at a window between
Joe and Sandy. The defendant demanded to know where their safe was and 3
yelled, “[G]ive me the fucking money.” Sandy told him the safe was in the base-
ment. The defendant demanded Joe open the safe. Joe resisted, and the defend-
ant began beating him. Sandy tried to call 911 but the defendant threw her
against the front door with enough force for the outside surveillance camera to
capture the door visibly moving upon impact. He then punched her, pointed his
gun in her face and stated, “I’m going to kill you, bitch, I’m going to kill both of
you.” The defendant walked back to Joe and began to drag him down the base-
ment stairs. Sandy was able to escape the home through the garage and ran
shoeless through the snow to a neighbor’s house. The neighbor called 911. When
the police arrived, the defendant was gone.
After taking the money from the safe, the defendant left the Henderson’s
home and made a series of stops to several different acquaintances’ houses. At
one house he discarded some of his clothes, his boots, the fake badge, and li-
cense plates. All items were recovered by the police. At another house he used a
phone to try and find a ride. At a third house, an acquaintance provided the
defendant with a change of clothes. However, that individual sensed something
was wrong and decided to preserve anything the defendant touched by placing
the items in a bin and later providing the items to law enforcement. The defend- ant was then picked up by two friends to be taken back to his home in Cedar
Rapids. During this drive through Linn County, the defendant was hyper-fo-
cused on ensuring the driver followed all traffic laws and requested they not stop
in Marion for gas due to the heavy police presence in Marion. When he was even-
tually dropped off at his home, the defendant placed a bag of bullets in one of
the friend’s pockets, which she then handed to the second friend, who subse-
quently provided the bullets to law enforcement.
After the incident, the Hendersons were transported to the hospital. Sandy suffered a laceration on her scalp that was closed with staples and had bruising 4
around her left eye. Joe sustained a broken upper jaw, a fracture behind his
eyes, a cheekbone fracture, a midface fracture, and a broken nose. Due to the
fractures, Joe was unable to chew solid food for several weeks. Joe also sustained
a laceration on his scalp that required stitches, several contusions and abrasions
on the back of his arms and forearms, and contusions from his chest area into
the mid-back area. Prior to the incident, Joe had been suffering from colon can-
cer and Lewy Body dementia. His dementia progressed and Joe was moved to an
assisted living facility on February 16, 2022, barely a month after the attack,
where he later passed away due to complications from cancer.
The investigation revealed that $50,000 from the Henderson’s safe was
missing and that the DNA on the recovered boots matched the DNA of both the
defendant and Joe. The money was never recovered. The defendant was charged
with two counts of robbery in the first degree, two counts of willful injury causing
serious injury, theft in the first degree, and impersonating a public official. A
jury trial commenced on July 12, 2022. The defendant moved for a judgment of
acquittal, which was denied on all counts but one. The court found insufficient
evidence of a serious injury to Sandy and required the charge to be submitted to
the jury as willful injury causing bodily injury. The jury found the defendant guilty of all six charges.
The defendant was sentenced to twenty-five years for each conviction of
robbery in the first degree. For the offense of willful injury causing serious injury
to Joe, the defendant was sentenced to ten years. For the willful injury causing
bodily injury to Sandy, the defendant was sentenced to five years. For theft in
the first degree, the defendant was sentenced to ten years. For impersonating a
public official, the defendant was sentenced to two years. The sentences for the
two robbery convictions were ordered to be served consecutively, for a total of 5
fifty years, with a minimum sentence of thirty years before being eligible for pa-
role. The remaining sentences were ordered to be served concurrently to each
other and consecutively to the robbery convictions. The defendant timely ap-
pealed.
II. Standard of Review.
We generally review claims of an illegal sentence for correction of errors at
law. State v. Petty, 925 N.W.2d 190, 195 (Iowa 2019). A defendant is permitted
to challenge an illegal sentence at any time. State v. Bruegger, 773 N.W.2d 862,
869 (Iowa 2009); Iowa R. Crim. P 2.24(5)(a) (2022) (“The court may correct an
illegal sentence at any time.”). “An illegal sentence is a sentence that is not per-
mitted by statute.” State v. Copenhaver, 844 N.W.2d 442, 447 (Iowa 2014). “If
the legislature criminalizes two separate and distinct acts, separate sentences
on each act are not illegal.” Id. To determine what conduct the legislature crimi-
nalized, we look at the “unit of prosecution the legislature intended in enacting
the statute.” Id.
We review sufficiency of the evidence claims for correction of errors at law.
State v. Mathis, 971 N.W.2d 514, 516 (Iowa 2022). The jury’s verdict is binding
if it is supported by substantial evidence. Id. “Substantial evidence is evidence sufficient to convince a rational trier of fact the defendant is guilty beyond a
reasonable doubt.” Id. at 516–17. To determine whether the jury’s verdict is sup-
ported by substantial evidence, “we view the evidence in the light most favorable
to the State, including all ‘legitimate inferences and presumptions that may fairly
and reasonably be deduced from the record evidence.’ ” Id. at 517 (quoting
State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005)).
III. Analysis.
On appeal, the defendant argues that we should overrule State v. Copen- haver, 844 N.W.2d 442, and apply the single-larceny rule, which states that “the 6
theft of property belonging to two different persons at the same place and at the
same time constitutes one single larceny,” id. at 450 n.2. The defendant further
argues that even under Copenhaver, he did not have the intent to commit two
separate and distinct thefts, and therefore, the evidence was insufficient to sup-
port two separate robbery convictions. As a result, the defendant contends that
the district court imposed an illegal sentence. We decline to overrule Copenhaver
and find there is sufficient evidence that the defendant intended to commit two
separate and distinct thefts.
A. Stare Decisis. We must first begin our discussion by considering our
commitment to stare decisis. See State v. Williams, 895 N.W.2d 856, 859 (Iowa
2017). Our existing caselaw can be applied to resolve this case; however, this
caselaw is being challenged as incorrect. “We do not overturn our precedents
lightly and will not do so absent a showing the prior decision was clearly errone-
ous.” Garrison v. New Fashion Pork LLP, 977 N.W.2d 67, 83 (Iowa 2022) (quoting
McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005)).
The State’s argument in support of overturning Copenhaver is that its out-
come “leads to problematic results.” However, such an argument amounts to no
more than the assertion that Copenhaver was wrongly decided. The State has offered no explanation as to how the legal framework of Copenhaver is clearly
erroneous. The State merely expresses displeasure with the outcome of the case,
which is not a sufficient justification for us to depart from our prior holding.
The defendant argues that we should overrule the claim in Copenhaver
that the single-larceny rule no longer applies after the enactment of Iowa Code
section 714.3. Iowa Code section 714.3(2) states:
If money or property is stolen from the same person or location by two or more acts, or from different persons by two or more acts which occur in approximately the same location or time period, or from different locations by two or more acts within a thirty-day pe- riod, so that the thefts are attributable to a single scheme, plan, or 7
conspiracy, these acts may be considered a single theft and the value may be the total value of all the property stolen.
The defendant contends that section 714.3 did not replace the single-larceny
rule but instead provides “the state the option to pursue higher degrees of theft
by aggregating the value of each individual taking.” See also State v. Chrisman,
514 N.W.2d 57, 58–60 (Iowa 1994) (interpreting the effect of Iowa Code sec-
tion 714.3 and determining whether the single-larceny rule still applies).
“[W]e presume the legislature is aware of our cases that interpret its stat-
utes. When many years pass following such a case without a legislative response,
we assume the legislature has acquiesced in our interpretation.” Doe v. New Lon-
don Comm. Sch. Dist., 848 N.W.2d 347, 355 (Iowa 2014) (quoting Ackelson v.
Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013)). Stare decisis “is
especially applicable where the construction placed on a statute by previous de-
cisions has been long acquiesced in by the legislature.” Bd. of Water Works Trs. v.
SAC Cnty. Bd. of Supervisors, 890 N.W.2d 50, 61 (Iowa 2017) (quoting In re Est.
of Vajgrt, 801 N.W.2d 570, 574 (Iowa 2011)). Since our decision in State v. Chris-
man in 1994 and Copenhaver in 2014, the legislature has neither amended sec-
tion 714.3 nor statutorily enacted the single-larceny rule. Thus, we presume the
legislature has acquiesced in our interpretation of the effect of section 714.3 and the applicability of the single-larceny rule. See Doe, 848 N.W.2d at 355. Accord-
ingly, despite the State and the defendant’s arguments, we decline to overrule
Copenhaver and hold it is still the controlling law and applies to the facts of the
case here.
B. Error Preservation. As a threshold matter, the State contends the de-
fendant’s argument that he did not have the intent to commit two separate and
distinct thefts was not properly preserved because he did not object to the jury instructions. The first instruction at issue stated: 8
The State must prove all of the following numbered elements of Robbery in the First Degree:
1. On or about the 9th day of January, 2022, the defendant had the specific intent to commit a theft.
2. To carry out his intention to assist or further the commis- sion of the intended theft or assist him in escaping from the scene, with or without the stolen property, the defendant:
a. Committed an assault on Joseph Henderson . . . or
b. Threatened Joseph Henderson with, or purposely put Jo- seph Henderson in fear of immediate serious injury, or
c. Threatened to immediately commit a forcible felony.
3. The defendant:
a. Purposely inflicted or attempted to inflict a serious injury on Joseph Henderson or
b. Was armed with a dangerous weapon.
The second instruction at issue was identical to the instruction above, except it
referred to Sandy in place of Joe. Specifically, it stated:
The State must prove all of the following numbered elements of Robbery in the First Degree:
1. On or about the 9th day of January, 2022, the defendant had the specific intent to commit a theft.
2. To carry out his intention to assist or further the commis- sion of the intended theft or assist him in escaping from the scene, with or without the stolen property, the defendant:
a. Committed an assault on Sandra Henderson . . . or
b. Threatened Sandra Henderson with, or purposely put San- dra Henderson in fear of immediate serious injury[,] or
a. Purposely inflicted or attempted [to] inflict a serious injury on Sandra Henderson or
b. Was armed with a dangerous weapon. 9
To have preserved his argument that the State failed to prove the defend-
ant had the specific intent to commit two separate and distinct thefts, the State
argues that the defendant needed to have objected to the above jury instructions.
We disagree. First, the defendant moved for a judgment of acquittal at the end
of the presentation of evidence, arguing that the State did not prove he had the
intent to commit two separate and distinct thefts. The motion was denied. Sec-
ond, if the State did, in fact, fail to prove the defendant had the intent to commit
two separate and distinct thefts, the resulting sentence for two robberies would
be illegal. A defendant can challenge an illegal sentence at any time, including
for the first time on appeal. See Bruegger, 773 N.W.2d at 869. Therefore, we hold
that the defendant’s argument was properly preserved.
C. Illegal Sentence. In Copenhaver, we determined that “the unit of pros-
ecution for robbery requires the defendant to have the intent to commit a theft,
coupled with any of the following—commits an assault upon another, threatens
another with or purposely puts another in fear of immediate serious injury, or
threatens to commit immediately any forcible felony.” 844 N.W.2d at 449. Thus,
to support two convictions of robbery, the State must have proved that the de-
fendant “had the intent to commit two separate and distinct thefts, with each theft accompanied by any of the actions contained in Iowa Code section 711.1.”
Id. At trial, the defendant admitted to assaulting both Sandy and Joe; therefore,
it is evident that the theft was accompanied by an action contained in sec-
tion 711.1. As a result, the only issue on appeal is whether the defendant had
the intent to commit two separate and distinct thefts. Sufficient evidence of such
intent is present here.
To determine if substantial evidence supports a defendant’s conduct as
separate and distinct or one continuous act, we look at the following factors: “(1) the time interval occurring between the successive actions of the defendant, 10
(2) the place of the actions, (3) the identity of the victims, (4) the existence of an
intervening act, (5) the similarity of defendant’s actions, and (6) defendant’s in-
tent at the time of his actions.” Copenhaver, 844 N.W.2d at 449–50 (quoting
State v. Ross, 845 N.W.2d 692, 705 (Iowa 2014)).
Applying the factors here, the incident occurred in one location: the Hen-
derson’s home. Joe and Sandy were husband and wife and owned the property
in the safe. The defendant admitted to having the intent to physically assault Joe
and substantial evidence was presented to show he had the intent to assault
Sandy. He assaulted both Joe and Sandy when they resisted his attempts to
locate the safe. When Sandy tried to call for help, the defendant punched,
pushed, and shoved both Joe and Sandy. While the entire incident took place
within seven minutes, there were breaks between the defendant’s actions. In
Copenhaver, we determined that the time it took for the defendant to move from
one teller to the next teller left an interval of time between each act, thereby
showing the defendant had the intent to commit two separate and distinct thefts.
Id. at 450. The same is true here. The assaults did not occur in one continuous
act. The defendant would assault one of the Hendersons, pause, and then begin
assaulting the other. During one break in action, the defendant went to the front door and invited other individuals into the home. During another break, the de-
fendant verbally accosted Sandy. As in Copenhaver, each of these pauses left an
interval of time between the defendant’s actions. See id. Therefore, there is sub-
stantial evidence that the defendant committed separate and distinct acts rather
than one continuous act.
Additionally, theft occurs when a person “[t]akes possession or control of
the property of another, or property in the possession of another, with the intent
to deprive the other thereof.” Iowa Code § 714.1(1). Substantial evidence was presented to support the conclusion that the defendant had the intent to commit 11
two separate thefts. The money in the safe was owned by both Sandy and Joe.
The defendant repeatedly asked both Joe and Sandy where the safe was and
demanded that Joe open it for him. The money was in the safe prior to the alter-
cation, and upon the end of the altercation, the money was gone. Therefore, suf-
ficient evidence was presented to show the defendant had the intent to, and did
in fact, commit two separate and distinct thefts: one theft against Sandy, and
one theft against Joe. As a result, the sentence imposed is not illegal.
IV. Conclusion.
Because the evidence is sufficient to establish that the defendant intended
to commit two separate and distinct thefts, we affirm both convictions and sen-
tences for first-degree robbery.
AFFIRMED. Waterman, Mansfield, and McDonald, JJ., join this opinion, and May, J.,
joins except as to the court’s reliance on the doctrine of legislative acquiescence.
McDermott, J., files a dissenting opinion, in which Oxley, J., joins as to part I,
and in which May, J., joins as to part II. 12
#22–2100, State v. Lee
MCDERMOTT, Justice (dissenting). I.
The majority finds that Lee’s actions constituted two separate thefts and
thus affirms his convictions for two separate robberies. In my review of the rec-
ord, I can discern only one theft. Because one theft can give rise to only one
robbery conviction, regardless of the number of assaults committed to further
that theft, I must respectfully dissent.
The robbery statute provides in relevant part:
1. A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person’s escape from the scene thereof with or without the stolen property:
a. Commits an assault upon another.
b. Threatens another with or purposely puts another in fear of immediate serious injury.
c. Threatens to commit immediately any forcible felony.
Iowa Code § 711.1(1) (2022). The elements of robbery are relatively straightfor-
ward. The state must prove that a defendant (1) intended to commit a theft, and
(2) performed any of the listed actions in furtherance of that theft. See id. The
difficult questions in this case center on whether the State needed to prove that
Lee intended to commit two thefts to support the two robbery convictions and, if
so, whether the evidence established two thefts.
We answered the question of whether multiple counts of robbery require
proof of multiple thefts in State v. Copenhaver, 844 N.W.2d 442 (Iowa 2014). That
case centered on whether a defendant committed two counts of robbery during
a bank holdup when the defendant demanded and received cash from a bank 13
teller at that teller’s station and then demanded and received cash from a differ-
ent teller at another station. Id. at 445.
We analyzed in Copenhaver whether the robbery statute permits multiple
robbery convictions where a defendant commits multiple assaults but intends to
commit only a single theft, stating:
If a defendant intends to commit only one theft, and the defendant does one or more of the following—commits an assault upon an- other, threatens another with or purposely puts another in fear of immediate serious injury, or threatens to commit immediately any forcible felony—only one robbery has occurred. This is true even if the defendant commits multiple assaults or a single assault on one person and threatens other persons with or purposely puts another in fear of immediate serious injury while intending to commit a sin- gle theft.
Id. at 449. We concluded that the facts established two thefts based on the de-
fendant’s separate demand for and receipt of cash from the two bank tellers at
their separate stations. Id. at 452. We thus affirmed both robbery convictions.
Id.
But the facts in this case, in my view, simply don’t support a conclusion
that Lee intended to commit two separate thefts from the Hendersons. As the
State summarizes in its brief, after Lee entered the home, he “asked Sandy and
Joe about their safe, demanding to know where it and the money were kept.” He
intended to steal one thing at one location at one time. Although both Sandy and
Joe jointly owned the money in the safe, “the stealing of property from different
owners at the same time and at the same place constitutes but one larceny.”
State v. Chrisman, 514 N.W.2d 57, 59 (Iowa 1994) (quoting State v. Cabbell, 252
N.W.2d 451, 453 (Iowa 1977)).
The trial transcript suggests that Lee’s assaults on Sandy and Joe hap- pened in rapid succession. When Lee pulled his gun, he fired a shot at the win-
dow between where Sandy and Joe sat. Lee seemingly moved from assaulting 14
one to the other and back again, repeatedly shifting his attention between them
without any meaningful break in the action. Yet nothing about the separate as-
saults on Joe and Sandy permits a conclusion that Lee intended to steal anything
other than the money in the safe. As we said in Copenhaver, “If the defendant
intends to commit only one theft, there can only be one robbery no matter how
many assaults occur while the defendant intends to commit the theft.” 844
N.W.2d at 449. The State charged Lee with only a single count of theft. The jury
convicted Lee of only a single count of theft. The majority describes, at best, a
break in action between assaults but not a break in action between attempted
thefts, which is what we said was needed in Copenhaver. See id. at 450. If the
money was all in Joe’s pocket, Lee’s conduct would have amounted to multiple
assaults in support of his attempt to take money from Joe’s pocket—i.e., one
robbery. I see no difference between the money being in Joe’s pocket and the
money being in the safe.
Both parties in this case ask us to overrule Copenhaver, but for different
reasons. The State argues that Copenhaver should be overruled because it mis-
takenly requires the State to prove a separate attempted theft to support each
independent robbery conviction. It urges that nothing in the language of the rob- bery statute requires more than one theft to charge and convict a defendant for
more than one robbery.
The majority purports to reject the State’s request to overrule Copenhaver,
concluding that the State failed to show that Copenhaver’s holding was clearly
erroneous. I say “purports” because the majority says it rejects the State’s argu-
ment, but its holding suggests otherwise since (for the reasons explained above)
only one attempted theft occurred. In any event, I agree with the majority that
we should reject the State’s reading of § 711.1, based on both the analysis by the Copenhaver majority, id. at 448–49, and the reasons explained in Justice 15
Mansfield’s separate writing in Copenhaver, id. at 452–56 (Mansfield, J., concur-
ring in part and dissenting in part). I find Justice Mansfield’s application of the
rule of lenity particularly fitting here.
When ordinary attempts to interpret a criminal statute fail to resolve
reasonable doubts about the unit of prosecution, an interpretation that affords
less harsh treatment of the defendant prevails. See State v. Muhlenbruch, 728
N.W.2d 212, 216 (Iowa 2007). “[W]hen the government means to punish, its
commands must be reasonably clear,” and “[w]hen they are not clear, the
consequences should be visited on the party more able to avoid and correct the
effects of shoddy legislative drafting,” namely, the state. Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 299 (2012). The
robbery statute in Iowa Code § 711.1 (referring to “the intent to commit a theft”),
read with the definition of theft in § 714.1(1) (when a person “[t]akes possession
or control of the property of another, or property in the possession of another,
with the intent to deprive the other thereof”), leaves reasonable doubt about the
unit of prosecution. See Copenhaver, 844 N.W.2d at 452–53. We thus must
interpret it to provide that only one intended theft can result in only one robbery.
Because the State failed to establish that Lee intended to commit two sep- arate thefts to support two robbery convictions as Copenhaver requires, and be-
cause the State failed to show that Copenhaver’s requirement on this point
should be overruled, I would reverse the second robbery conviction.
II.
I write further to address the basis for the majority’s rejection of Lee’s ar-
gument to overrule dicta in a footnote in Copenhaver. Lee argues that the foot-
note erroneously states that Iowa’s theft statute, as enacted in Iowa Code
§ 714.3, did away with the “single-larceny rule” that existed under the common law. See id. at 450 n.2 (majority opinion). The majority—relying on the doctrine 16
of legislative acquiescence—rejects Lee’s request to overrule Copenhaver on this
point.
Legislative acquiescence, as the majority explains, assumes that when we
have interpreted a statute in a case “without a legislative response,” it means
that “the legislature has acquiesced in our interpretation.” Doe v. New London
Comm. Sch. Dist., 848 N.W.2d 347, 355 (Iowa 2014) (quoting Ackelson v. Manley
Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013)). Here, this would mean that
because the legislature didn’t revise the theft statute after we made this partic-
ular statement in a footnote in Copenhaver, we can thus conclude that the sin-
gle-larceny rule is no more.
The premises undergirding the doctrine of legislative acquiescence make
any reliance on it a dubious proposition. One must first believe that legislators
in later legislative sessions were even aware of the particular court ruling inter-
preting a statute. One must then accept that a later legislature—through si-
lence—has the ability to interpret the meaning of statutory text that an earlier
legislature passed into law. One must believe, for instance, that the 2022 legis-
lature possesses some insight for us—indeed, a conclusive insight—about how
statutory text enacted by the 1976 legislature should be interpreted, and that it communicates that insight by doing nothing. From there, one must further ac-
cept that the later legislature’s failure to act must be viewed as agreement with
the court’s statutory interpretation in the earlier case. Despite potentially innu-
merable reasons for a legislature’s failure to amend a particular statute, the leg-
islative acquiescence doctrine assumes and assigns one, and only one, reason
for it: wholehearted approval of the court’s prior interpretation.
Justice Scalia excoriated the legislative acquiescence justification that the
majority relies on today. See Johnson v. Transp. Agency, 480 U.S. 616, 671–72 17
(1987) (Scalia, J., dissenting). He maintained that a legislative-inaction-con-
firms-we-got-it-right assumption “haunts” judicial opinions and “should be put
to rest.” Id. at 671. “It is based, to begin with, on the patently false premise that
the correctness of statutory construction is to be measured by what the current
[legislature] desires, rather than by what the law as enacted meant.” Id. Worse,
it draws conclusions about the current legislature’s “desires with respect to the
particular provision in isolation,” ignoring the legislative process’s give-and-take
required to create the “total legislative package” in which the isolated provision
happens to reside. Id. The Constitution “creates an inertia” through its “compli-
cated check on legislation” that, Justice Scalia argues, “makes it impossible to
assert with any degree of assurance” that inaction “represents (1) approval of the
status quo, as opposed to (2) inability to agree upon how to alter the status quo,
(3) unawareness of the status quo, (4) indifference to the status quo, or even
(5) political cowardice.” Id. at 672 (quoting The Federalist No. 62, at 378 (James
Madison) (Clinton Rossiter ed., 1961)). According to Justice Scalia, “one must
ignore rudimentary principles of political science to draw any conclusions re-
garding [a current legislature’s] intent from the failure to enact legislation.” Id.
at 671–72. What’s more, courts interpret statutory language all the time. “Usually,
silence can acquire meaning in an exchange only when a response is expected.”
Peter Tiersma, The Language of Silence, 48 Rutgers L. Rev. 1, 94 (1995). The
notion implicit in legislative acquiescence—that we should expect a new
legislative enactment each time the legislature has the slightest disagreement
with one of our interpretations—is untethered from the real world. “If the courts
routinely anticipated a response to all of their opinions, they would have to
assume from the legislature’s inaction that it was silently approving virtually every decision the courts made; this is highly unrealistic.” Id. The doctrine’s 18
shortcomings are easy to see when followed to their logical endpoint. “If the
proposition were applied as a rule in every case involving statutory construction,
no judicial construction of a statute could be overruled in the absence of
legislative action.” Bronsen v. Dawes County, 722 N.W.2d 17, 28 (Neb. 2006). A
reader will not need to search hard to find evidence of our court overruling a
prior statutory interpretation despite the legislature’s inaction after our prior
ruling.
Judge Easterbrook describes potentially antidemocratic consequences
when courts base holdings on lawmakers’ failure to act after a court interprets
a statute. See Frank H. Easterbrook, Stability and Reliability in Judicial
Decisions, 73 Cornell L. Rev. 422, 426–27 (1988). Legislative acquiescence
assumes “that as soon as the judges have spoken, the decision of the past ceases
to matter, and the only question is what the sitting Congress wishes. This simply
denies the purpose of the enterprise: to enforce the decisions of a prior
Congress.” Id. at 426. Later lawmakers “may leave in place an interpretation of
a law simply because today’s coalitions are different. The failure of a different
body to act hardly shows that the interpretation of what an earlier one did is
‘right.’ ” Id. at 427. Judge Posner expressed a related view: “The deal is struck when the statute is enacted. If courts paid attention to subsequent expressions
of legislative intent not embodied in any statute, they would be unraveling the
deal that had been made; they would be breaking rather than enforcing the
legislative contract.” Richard A. Posner, Economics, Politics, and the Reading of
Statutes and the Constitution, 49 U. Chi. L. Rev. 263, 275 (1982).
The mere fact that a legislature could take action “is no excuse for failing
to overrule a statutory precedent of ours that is clearly wrong, for the realities of
the legislative process often preclude readopting the original meaning of a statute that we have upset.” Clark v. Martinez, 543 U.S. 371, 402 (2005) (Thomas, J., 19
dissenting). If we erroneously interpreted § 714.3 in Copenhaver, then we should
not let legislative inaction prevent us from remedying our error. “The court is
always free to correct its own mistakes, and legislative inaction is not a bar to
doing so.” State ex rel. Iowa Dep’t of Health v. Van Wyk, 320 N.W.2d 599, 607
(Iowa 1982) (en banc) (McCormick, J., dissenting).
Divining meaning from legislative inaction may be a useful fiction, but it’s
a fiction nonetheless, and a pernicious one at that, diverting us from the real
work of statutory interpretation that courts are called to perform. Legislative ac-
quiescence risks lulling us into complacency based on superstition that inaction
equals approval. It should go without saying that our interpretation of a statute
should be based on what the statute’s text says and fairly implies, not on our
guesswork about what a later legislature’s inaction might mean. For all these
reasons, I respectfully dissent.
Oxley, J., joins this dissent as to part I, and May, J., joins this dissent as
to part II.