What the Iowa Supreme Court's Recent Public Indecency Decision Reveals About Statutory Interpretation
By MICHAEL C. DORF
|Wednesday, Sept. 10, 2008
Last week, in State v. Isaac, the Iowa Supreme Court reversed a man's conviction for indecent exposure. The opinion reads as an almost textbook example of textualism--a method of statutory interpretation that focuses on a statute's text, rather than seeking to discern the collective intent of its drafters.
But is textualism the best approach to statutory interpretation? In this column, I'll discuss that question in general and in the specific context of the Iowa decision.
The Debate Over Statutory Interpretation: Justice Scalia's View Versus Justice Breyer's
What tools should judges use to interpret statutes? In recent decades, that age-old question has sparked new interest, as some scholars and judges--most prominently, U.S. Supreme Court Justice Antonin Scalia--have sought to delegitimize the long-accepted view that courts should try to give effect to the intent of the legislature.
A legislature, Justice Scalia and his fellow travelers say, is a collective body without any identifiable intent as such. Individual legislators may have discrete intentions in voting for or against any particular law, but the only authoritative expression of the intent of the legislature as a whole is the text of a statute.
In concrete terms, the most important consequence of textualism is to render nearly all legislative history irrelevant to the task of statutory interpretation. Committee reports and floor statements might or might not accurately reflect what some or even all legislators hoped to accomplish with a particular law, the textualists say. But either way, they contend, courts should not give effect to the views expressed therein, for to do so would short-circuit the legislative process.
Textualism has made its mark on Supreme Court jurisprudence. Empirical research shows that the Court's statutory decisions in recent years rely on legislative history less frequently than they did a generation ago.
However, the traditionalists have hardly surrendered to textualism. The Court as a whole, and individual Justices, continue to cite legislative history. As Justice (and then-Judge) Stephen Breyer explained in a 1991 article in the Southern California Law Review, "one of the best ways to find out the purpose of an action taken by a group is to ask some of the group's members about it."
As that quotation makes clear, and as Justice Breyer explains at length in the article and in his more recent book, Active Liberty, traditionalist judges do not naively believe that a legislature has an intent in the way that an individual person does. Nonetheless, legislation is purposive activity, and so, Breyer and others say, judges should strive to give effect to the purpose at which the law aims. In his book, Breyer borrows a familiar figure in the law, the reasonable person. A statute's purpose, in Justice Breyer's view, is simply the purpose that we can best attribute to a reasonable legislator who supported the law.
Justice Scalia and his fellow textualists are no more sympathethic to reasonable-person purposivism than they are to intentionalism. The reasonable legislator, after all, is a fiction, and thus, Scalia fears, judges will tend to ascribe to the reasonable legislator the purposes that the judges themselves favor.
Furthermore, textualists note, statutes often serve multiple, conflicting purposes. Environmental laws protect the environment but not to the point of stifling all economic activity; product safety laws aim to reduce but not eliminate risks; and so on. For a judge to say that the purpose of a law is simply environmental protection or product safety is to ignore the legislative purpose to go only so far towards those goals. The best evidence of the balance of purposes the legislature struck, textualists say, is the statute's text itself.
There stand the battle lines between textualism and purposivism, at least on the Supreme Court. Yet real cases sometimes expose the limits of legal theory--as illustrated by the recent Iowa indecency decision I mentioned at the top of this column.
The Creepy Case of State v. Isaac
The facts of the Iowa case are creepy: Late one June night in 2006, a police officer caught Ronnie James Isaac masturbating outside the bedroom windows of two women. Although Isaac used profanity to call out to each of the women, as the Iowa Supreme Court nicely put it, neither woman "saw Isaac or his penis." However, when confronted, Isaac turned toward the officer, thus exposing his genitalia. A chase ensued and Isaac was eventually apprehended, with "his flaccid penis outside his pants." His hands were oily, apparently from a bottle of baby oil in his back pocket.
Isaac was tried and convicted for indecent exposure and other offenses not relevant here, but the Iowa Supreme Court reversed the indecent exposure conviction. As noted above, the decision in State v. Isaac is a classic example of textualism.
The relevant portion of the Iowa indecent exposure statute, Section 709.9 of the Iowa Code, provides:
A person who exposes the person's genitals or pubes to another not the person's spouse . . . commits a serious misdemeanor, if:
1. The person does so to arouse or satisfy the sexual desires of either party; and
2. The person knows or reasonably should know that the act is offensive to the viewer.
The Iowa Supreme Court noted that the only person to whom Isaac actually exposed his genitals was the arresting police officer, and that there was no evidence in the record that that exposure was for the purpose of arousal or satisfying anybody's sexual desires. Rather, the facts suggest that Isaac simply did not have time to, or did not care to, cover himself in the officer's presence.
In dissent, Justice Michael Streit suggested that the record did not rule out the possibility--and thus that the jury might have found--that Isaac in fact intended to and did derive sexual gratification from the fact that a police officer might catch him in the act. That suggestion accepted for purposes of argument the majority's theory that to violate Section 709.9, the defendant must seek sexual arousal or gratification from the fact that he has exposed himself to the person who actually observes him.
Justice Streit also appeared to endorse an alternative theory, however: that someone could be guilty of a Section 709.9 violation if the exposure and gratification occur via two or more distinct victims--the victim of the exposure (here, the officer) and the object of the gratification (here, either or both of the two women). Sounding a distinctly purposivist note, Justice Streit stated that "Isaac's conduct is the type of behavior the legislature intended to outlaw with section 709.9."
The Jurisprudential Issue in State v. Isaac
Interestingly, neither the majority nor the dissent in the Isaac case cited the legislative history of Section 709.9. Yet that history is instructive. The provision was enacted in 1976, two years after the Iowa Supreme Court held that the predecessor statute was unconstitutionally vague. The old statute forbade "open and Indecent or Obscene exposure" but did not define any of these terms, leading to the usual perils of vague criminal laws: lack of fair notice to citizens and the risk of arbitrary enforcement.
Had the Isaac court bothered to consider this history, it might have come closer to the reading advanced by dissenting Justice Streit. The core of the 1976 reform was to specify what acts are forbidden (exposure of the genitals), for what purposes (sexual arousal or gratification), and under what circumstances (when such exposure can reasonably be expected to cause offense).
A purposivist might want to try the following thought experiment: If the Iowa legislators who adopted the provision in 1976 were presented with the facts of the Isaac case, would they have thought the case would be covered by their new provision? What possible purpose would have been served by exempting someone like Isaac from the statutory prohibition because, by sheer luck, the objects of his gratification happened not to look out the window and see him exposed, even though another person did?
Of course, even a purposivist will only ask about a statute's purpose as an aid to construction if she first finds the relevant statutory language ambiguous. For example, if Isaac had been caught outside a stranger's window using profanity, moaning, and masturbating under an opaque raincoat, that still would have been offensive behavior, but it clearly would not have been a violation of Section 709.9 because there would have been no exposure of his genitals.
Accordingly, in Isaac as in many statutory interpretation cases of greater moment, the real disagreement concerns whether the statute is ambiguous in the first place: the majority in Isaac thought so and the dissent thought not. But this fact alone demonstrates a limit of textualism. How can a textualist judge claim a law is unambiguous when his or her colleagues think it means something different? Why doesn't their very disagreement establish the law's ambiguity?
In Isaac itself, the majority juxtaposed Section 709.9 of the Iowa Code with the indecent exposure provision promulgated by the American Law Institute as Section 213.5 of the Model Penal Code--a model statute upon which many states have drawn in drafting their criminal laws. The Model Penal Code statute does not require that the exposure be "to another," thus making it possible to find guilt under the Model Penal Code for a case of exposure to one person and gratification via another.
Yet why is the Model Penal Code relevant? If there were evidence that the Iowa legislature had considered, or was even aware of, the Model Penal Code provision, and had consciously chosen to write a narrower provision, then the juxtaposition of Iowa Section 709.9 and Model Penal Code Section 213.5 would be relevant. But writing in a textualist mode, the Isaac majority either was uninterested in, or unable to locate, any such evidence.
The Isaac case, although colorful in its own disgusting way, is hardly unique in what it tells us about statutory interpretation. Consider two general lessons.
First, although the textualists in the federal judiciary tend to be more conservative than the purposivists, the jurisprudential divide is not primarily an ideological one. For example, the late Chief Justice William Rehnquist was quite conservative politically, but also quite traditional in his willingness to rely on non-textual evidence of legislative purpose.
Isaac makes the point vividly. The textualist position in the Isaac case was decidedly pro-defendant, and, as some Supreme Court cases also illustrate, that will often be true in criminal cases. Even without reference to the so-called "rule of lenity," which says that ambiguous criminal statutes should be construed narrowly, textualists will be wary of reading laws to cover more than their words clearly say. Where the prosecution urges a purposivist reading to encompass the defendant's conduct, but that conduct does not seem to fall directly within the bounds of the statute's specific wording, a textualist judge will be skeptical.
Second, the textualist argument against legislative history has important limits. Assume for a moment that textualists are right that committee reports and floor statements are unreliable indicia of legislative intent. Even so, the risks to which textualists point are not presented by the sort of legislative history that should have been relevant in Isaac--namely, the fact that the specifics in the current law were a reaction to an earlier ruling striking down the predecessor law as unconstitutional on vagueness grounds.
Sophisticated textualists like Justice Scalia sometimes say that this sort of material is admissible in the search for statutory meaning, because it constitutes part of the context and background against which the legislature acted. But not all textualists are sophisticated, and even sophisticated textualists can become so enthralled with their supposed ability to discern meaning from text alone that they neglect other reliable sources of meaning.