author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Bradley James COMRIED, Appellant.
    No. 03-1166.
    Supreme Court of Iowa.
    March 18, 2005.
    Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Timothy W. Dille, County Attorney, for appellee.
   LARSON, Justice.

James Comried was convicted of vehicular homicide while having a controlled substance in his blood, in violation of Iowa Code section 707.6AG) (2001). He contends the district court misapplied this Code section and that his conviction is unsupported by substantial evidence. We disagree on both points and therefore affirm his conviction.

I. Facts and Prior Proceedings.

Comried, in attempting to outrun a police car, ran into a vehicle driven by Donald Rotenburger, who died as a result of the collision. Pursuant to a search warrant, the officers obtained a blood sample that, together with a urine sample voluntarily provided by Comried, was sent to the state’s criminalistics laboratory for analysis. See Iowa Admin. Code r. 661-7.4 (2003). This laboratory performs two types of tests: an initial screening test and a confirmatory test. The initial test is performed at certain “cutoff levels,” meaning that only drug concentrations over the cutoff level will yield a “positive” test result. Any concentration below the cutoff level is reported “negative.” See Iowa Admin. Code r. 661 — 7.9 (providing cutoff levels for initial screening tests of urine). If the initial screening test shows positive, a second test is performed on the sample. This second test, the confirmatory test, is presumably more expensive but is also more reliable and produces very accurate results.

This case is somewhat unique because it involves samples of both blood and urine. When the lab performed the initial screening tests, Comried’s blood sample tested negative, but his urine sample tested positive for amphetamine and methamphetamine. Both samples were subjected to confirmatory testing, and both tested positive for methamphetamine.

Comried was charged with vehicular homicide while intoxicated in violation of Iowa Code section 707.6A(1), which states: “A person commits a class ‘B’ felony when the person unintentionally causes the death of another by operating a motor vehicle while intoxicated, as prohibited by section 321J.2.” Section 321J.2 states:

1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions:
a. While under the influence of an alcoholic beverage or other drug or a combination of such substances.
b. While having an alcohol concentration of .10 or more.
c. While any amount of a controlled substance is present in the person, as measured in the person’s blood or urine.

(Emphasis added). The State charged that, because Comried had “any amount” (80 ng/ml) of methamphetamine in his blood at the time of the accident, he violated section 321J.2(l)(c), and because of Ro-tenburger’s death, he violated section 707.6A(1) as well.

Before trial, Comried moved for an adjudication of law points, arguing that the “any amount” language of section 321J.2(l)(c) impliedly incorporated a Department of Public Safety (DPS) rule setting cutoff levels for concentration of a drug. According to him, “any amount” means any amount above the cutoff level. The State countered that “any amount” means what it says — if a test detects any amount of a controlled substance, the any-amount element is satisfied. Judge Morrison agreed with the State, holding that “ ‘[a]ny’ means any.” Judge Wilson, in a jury-waived trial, found Comried guilty.

II. Application of the Statute.

A. Principles of construction. We recently summarized the principles of statutory construction:

When we interpret a statute, we attempt to give effect to the general assembly’s intent in enacting the law. Generally, this intent is gleaned from the language of the statute. To ascertain the meaning of the statutory language, we consider the context of the provision at issue and strive to interpret it in a manner consistent with the statute as an integrated whole. Similarly, we interpret a statute consistently with other statutes concerning the same or a related subject. Finally, statutes are interpreted in a manner to avoid absurd results and to avoid rendering any part of the enactment superfluous.

State v. Pickett, 671 N.W.2d 866, 870 (Iowa 2003) (citations and internal quotations omitted). Also,

[i]n construing a statute denouncing the offense of driving while under the influence of intoxicants, the manifest purpose of the statute may not be ignored. Although such a statute is a penal statute and must be strictly construed, such a statute, since it is designed to protect the public, should be liberally or reasonably construed in order to effect its purpose to protect, as far as may be, every person lawfully on the highway, and to reduce the hazard of prohibited operation of a motor vehicle to a minimum.

61A C.J.S. Motor Vehicles § 1385, at 274 (2002) (footnotes omitted).

B. The statute’s text. Section 321J.2(1) lists three separate offenses. The first criminalizes driving while under the influence of alcohol or drugs. Iowa Code § 321J.2(l)(a). The next two subsections delineate specific concentrations of those substances that automatically trigger a violation. Id. § 321J.2(1)(6), (c). Under these subsections, the State need not prove the defendant was under the influence — only that he was driving a motor vehicle with a specific amount of alcohol or drugs in his body. In 2002 the specific amount for alcohol was a blood-alcohol concentration of .10 or more. Id. § 321J.2(1)(6). As to controlled substances, “any amount” violates the statute. Id. § 321J.2(l)(c).

C. The statute’s purpose. We have said the purpose of chapter 321J is “ ‘to reduce the holocaust on our highways!!,] part of which is due to the driver who imbibes too freely of intoxicating liquor.’ ” State v. Kelly, 430 N.W.2d 427, 429 (Iowa 1988) (quoting State v. Hitchens, 294 N.W.2d 686, 687 (Iowa 1980)). At the time Kelly was decided, there were only two ways a person could violate the statute. The first was if the person was under the influence of alcohol or drugs; the second was if he had a blood-alcohol content of more than .10. See Iowa Code § 321J.2(1) (1987).

In 1998, however, that changed. The legislature added subsection (l)(c), prohibiting driving with any amount of a controlled substance in the body. 1998 Iowa Acts ch. 1138, § 11. Although there is no direct legislative history, the legislature likely included the “any amount” language in the amendment to create a per se ban. Subsection (l)(a) already prohibited driving while under the influence of drugs. Thus, subsection (l)(c) was intended to do something more — to prohibit people from operating motor vehicles with controlled substances in their bodies, whether or not they are under the influence.

The legislature could reasonably have imposed such a ban because the effects of drugs, as contrasted to the effects of alcohol, can vary greatly among those who use them. One court has observed that,

since the manufacture and distribution of illicit drugs are unregulated and because the drugs’ potency varies, the effects are unpredictable. Therefore, ... there is no level of use above which people can be presumed impaired or below which they can be presumed unimpaired.

State v. Phillips, 178 Ariz. 368, 873 P.2d 706, 708 (Ct.App.1994); accord Shepler v. State, 758 N.E.2d 966, 969-70 (Ind.Ct.App.2001) (“[TJhere is no accepted agreement as to the quantity of a controlled substance needed to cause impairment. We therefore agree with the State that it was reasonable for the legislature to differentiate between alcohol and controlled substances and to prohibit driving with any controlled substance in the body.”). Our court of appeals has reached a similar conclusion in a license-revocation case based on driving with controlled substances in the body. The court, noting the difficulty in relating the amount of drugs in the body to driving impairment, said:

Unlike the blood alcohol concentration test used to measure alcohol impairment there is no similar test to measure marijuana impairment. There is, though, as was used here, a test to measure the use of marijuana, a drug illegal in the State of Iowa, in a person’s body. There being no reliable indicator of impairment, the legislature could rationally decide that the public is best protected by prohibiting one from driving who has a measurable amount of marijuana metabolites.

Loder v. Iowa Dep’t of Transp., 622 N.W.2d 513, 516 (Iowa Ct.App.2000) (footnote omitted).

III. The Screening Regulation.

Comried argues that the above statutory analysis is altered by Iowa Administrative Code rule 661 — 7.9, a recently promulgated DPS regulation. He contends that this regulation — which, as explained below, sets cutoff levels for initial screening tests for drugs in urine samples — modifies the definition of “any” in Iowa Code section 321J.2(l)(c). We do not agree.

The DPS regulation relied on by Com-ried was promulgated under Iowa Code section 321J.2(8)(c), which states:

The department of public safety shall adopt nationally accepted standards for determining detectible levels of controlled substances in the division of criminal investigation’s initial laboratory screening test for controlled substances.

(Emphasis added.) This statute limits the DPS’s power to set cutoff levels: they are to apply only to “initial laboratory screening tests,” not to confirmatory tests. As directed, the DPS adopted this rule:

[Federal initial test requirements] are hereby adopted as standards for determining detectable levels of controlled substances in the division of criminal investigation criminalistics laboratory initial screening for controlled substances ....

Iowa Admin. Code r. 661 — 7.9 (emphasis added).

This screening rule is limited in another way: it does not apply to blood samples. This is apparent from reading the federal regulations to which the DPS regulation refers. See Mandatory Guidelines for Federal Workplace Drug Testing Programs, 59 Fed.Reg. 29908 (June 9, 1994); see also Revisions to the Mandatory Guidelines, 62 Fed.Reg. 51118 (Sept. 30, 1997). Both of these federal regulations appear to be limited to urine testing. See 59 Fed.Reg. at 29921, § 2.4(e)(1) (describing the initial screening tests and setting cutoff levels to use when screening “specimens”); see also id. at 29917 (defining “specimen” as “[t]he portion of urine that is collected from a donor” (emphasis added)). It appears that the DPS, by referring to the federal regulations, only intended its regulation’s cutoff levels to apply to initial testing of urine. In Comried’s case, the test confirming the presence of methamphetamine was not an initial screening, but a confirmatory test. In addition, the test was of a blood sample, not urine, as dealt with in the DPS regulation.

Comried contends that cutoff levels for blood tests should incorporate those for urine tests, but the two types of tests and their probative value are significantly different. Urine tests for drugs are relatively simple to conduct, and they do not require involvement of medical personnel. Blood tests, however, are more accurate and provide the best indication of driving impairment. One court has observed that, according to expert testimony,

metabolites of a drug are a product of the body’s metabolizing, or breaking down, the original drug into discrete components. It is only when the drug is in the bloodstream that it is capable of impairment of driving skills, and this impairment lasts only so long as the drug is in the bloodstream. At the metabolite stage, the metabolic component detected in the urine is “inactive,” in the sense that it is incapable of causing impairment. Many drugs will continue to appear in the urine in metabolite form for days or even weeks after use. A urine test, while indicative of what has been in the bloodstream in the past, says nothing conclusive about what is presently in the bloodstream.

State v. Hammonds, 192 Ariz. 528, 968 P.2d 601, 603 (Ct.App.1998); accord Rodriguez v. Fulton, 190 N.W.2d 417, 418 (Iowa 1971) (stating that blood tests are “generally considered more reliable than the other tests”).

IV. The Margin-of-Error and Legal-Drug Arguments.

A. The margin-of-error argument. The parties signed a stipulation of facts that included a confirmatory laboratory report showing that Comried’s blood contained 80 ng/ml of methamphetamine. This stipulation was not modified in any way by the claim Comried now asserts— that perhaps a margin of error had not first been deducted from the test. See Iowa Code § 321J.2(10) (requiring deduction for margin of error). If Comried had raised this issue at trial, the State would have had an opportunity to present evidence as to whether the lab complied with this statutory requirement. All we have before us, and all the district court had before it, is a laboratory report that shows the presence of methamphetamine. The defendant did not raise any argument based on section 321J.2(10) in his motion to adjudicate law points or at the hearing on it. Any objection to the validity of the laboratory report based on section 321 J.2(10) has been waived.

B. The legal-drug argument. Comried also contends it is necessary to establish an arbitrary cutoff to reduce the chance of being convicted for driving with legal drugs in his system. Comried did not raise this argument in his motion to adjudicate law points or in the stipulation of facts. In any event, it is not necessary for us to read into the statute an arbitrary cutoff test to ameliorate the consequences of legal drug ingestion because the legislature has already dealt with that contingency. Iowa Code section 321J.2(7)(6) states:

When charged with a violation of subsection 1, paragraph “c ”, a person may assert, as an affirmative defense, that the controlled substance present in the person’s blood or urine was prescribed or dispensed for the person and was taken in accordance with the directions of a practitioner and the labeling directions of the pharmacy, as that person and place of business are defined in section 155A.3.

Comried did not assert an affirmative defense on this basis.

We conclude that the statute in question is clear and unambiguous and that “any amount” means any amount greater than zero. Other courts have reached this conclusion as well. See, e.g., Hammonds, 968 P.2d at 604 (flat ban on driving with a controlled substance in the body upheld); Kevinezz v. State, 265 Ga. 78, 454 S.E.2d 441, 442 (1995) (“As ‘any amount’ necessarily means any amount greater than zero, we hold that [the statute] provides adequate notice that a person who ingests marijuana or any other drug specified in [the statute] and then drives a motor vehicle does so at his or her own peril....”); Bennett v. State, 801 N.E.2d 170, 176 (Ind. Ct.App.2003) (flat-ban statute upheld on basis “it is rational for the legislature to impose the flat ban with regard to controlled substances while not imposing the same ban with regard to alcohol”).

In analogous cases, statutory provisions against possession of “any amount” of drugs have been interpreted similarly. See State v. Maghee, 573 N.W.2d 1, 11-13 (Iowa 1998) (the “any amount” statute is violated by proof of defendant’s possession of a “detectable” amount of cocaine); see also State v. Fletcher, 221 Neb. 562, 378 N.W.2d 859, 862-63 (1985) (reaffirming that statute prohibiting possession of drugs in “any quantity” banned possession of any identifiable amount); State v. Wood, 117 N.M. 682, 875 P.2d 1113, 1115-16 (Ct.App.1994) (“any amount” satisfied by showing any identifiable amount of drugs); State v. Henry, 116 Or.App. 138, 840 P.2d 1335, 1336 (Ct.App.1992) (possession-of-drug statute violated by possessing “even a trace” of methamphetamine).

We agree with the district court that Comried operated a motor vehicle in violation of Iowa Code section 321J.2(l)(c), and because it caused a death, he is guilty of violating section 707.6A(1) as well.

Y. Sufficiency of the Evidence.

Comried argues that the evidence was insufficient to support his conviction, based on his argument that the blood test results should not have , been admitted. He concedes on appeal, however, that “[this] argument is premised upon this court accepting the argument [that the blood test must be subjected to a cutoff level].” We have rejected that argument, and we therefore reject his sufficiency-of-the-evidence argument as well.

AFFIRMED.

      . See Dep't of Public Safety, Div. of Criminal Investigation, Criminalistics Laboratory, Toxicology, at http://www.state.ia.us/govern-menpdps/dci/lab/toxicology.htm (last accessed Feb. 11, 2005).

      . The legislature has since lowered the requisite blood-alcohol concentration. The limit is now .08. See 2003 Iowa Acts ch. 60, § 1.


source: Caselaw Access Project

author: LAVORATO, Chief Justice. CADY, Justice WIGGINS, Justice

license: Public Domain

text:
    Brett MAROVEC, Appellant, v. PMX INDUSTRIES, Employer, and Martin Boyer Company, Insurance Carrier, Appellees.
    No. 03-1325.
    Supreme Court of Iowa.
    March 18, 2005.
    Pete Leehey of. Pete Leehey Law Firm, P.C., Cedar Rapids, for appellant.

      John M. Bickel and Robert K. Porter of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellees.
   LAVORATO, Chief Justice.

The workers’ compensation commissioner dismissed the appeal of Brett Marovec, claimant, because he failed to file an appeal brief in his intra-agency appeal as required by the commissioner’s rules. He petitioned the district court for judicial review and that court affirmed. Marovec then appealed to this court, and we transferred the case to the court of appeals, which affirmed the district court’s decision. We granted Marovec’s application for further review. We conclude, as did the district court and the court of appeals, that the commissioner did not abuse her discretion in dismissing Marovec’s appeal. We therefore affirm the decision of the court of appeals and the judgment of the district court.

I. Background Facts and Proceedings.

On February 10, 1999, Marovec sustained an injury while working for PMX Industries. Later, he sought workers’ compensation benefits. On March 13, 2001, following a hearing, a deputy workers’ compensation commissioner determined in an arbitration decision that Maro-vec had failed to establish any permanent disability as a result of the February 10, 1999 injury. The deputy therefore did not award Marovec any permanent partial disability benefits. The deputy also rejected Marovec’s claim for healing period benefits, temporary total disability benefits, and reimbursement of medical expenses.

On March 29 Marovec filed with the Iowa Workers’ Compensation Commissioner notice of appeal and affidavit of ordering transcript. On April 5 Marovec filed notice of filing transcript.

On June 4 Iris J. Post, Iowa Workers’ Compensation Commissioner, filed an order to show cause why Marovec’s appeal should not be dismissed because he had failed to file a brief as required by Iowa Administrative Code rule 876 — 4.28 (2001). The brief should have been filed by May 18. Iowa Admin. Code r. 876 — 4.28(1). The commissioner stated that Marovec “shall have until twenty days from the filing of this order to file evidence, briefs, and exceptions on the issue to be decided as stated above.” (Emphasis added.) The show cause order stated the issue as follows: “Claimant, Brett Marovec, is ordered to show cause why his appeal should not be dismissed pursuant to rule 876 IAC 4.36 for failure to file a brief as required by rule 876 IAC 4.28.”

On June 13 Marovec filed his reply to the show cause order. In the reply, Maro-vec recited the dates of filings made and noted the show cause order. His sole response to the show cause order was this: “Claimant’s brief was not filed due to an oversight.” Marovec also stated the following: “The Order states that Claimant ‘shall have until twenty days from the filing of this order’ to file his brief. Claimant’s brief will be filed by the deadline set in the Order to Show Cause.” So, apparently, Marovec interpreted the show cause order as setting a new deadline for filing briefs on the substantive issues.

Marovec filed an appeal brief on June 21 on the substantive issues. The brief made no reference to the show cause order.

On June 27 the employer filed a motion for additional time to file a brief in response to Marovec’s appeal brief. On July 10 the employer filed its appeal brief, addressing the substantive issues. The employer’s appeal brief made no mention of the show cause order. Marovec filed a reply brief addressing only the substantive issues.

On July 31 the commissioner filed her ruling on the show cause order. She determined there was no reason to review the deputy’s decision sua sponte. Her ruling continued:

The show cause order filed June 4, 2001, ordered claimant to show cause why the appeal should not be dismissed for failure to file a brief as required by rule 876 IAC 4.28. Claimant filed a brief on the merits of the appeal arguing that the deputy’s arbitration decision be reversed and remanded. Claimant submitted no arguments nor brief why the appeal should not be dismissed for failure to file a timely brief. Claimant gave no cause or reason tvhy its appeal should not he dismissed. Defendants filed a brief on July 10, 2001, but the issue discussed in the brief was whether the deputy erred in making a determination of a disability award. Defendant, like claimant, gave no cause or reason why claimant’s appeal should not be dismissed.
Claimant has failed to show cause why his appeal should not be dismissed. Claimant has failed to file a brief within the time required by rule 876 IAC 4.28. Claimant has failed to comply with rule 876 IAC 4.28. Claimant’s notice of appeal should be dismissed.

(Emphasis added.)

On August 6 Marovec filed a petition for judicial review, claiming, among other things, that the show cause ruling was unreasonable, arbitrary, capricious, and characterized by an abuse of discretion. PMX Industries filed an answer denying the allegation.

On August 4, 2003, nearly two years after the petition for judicial review was filed, the district court ruled. The court noted that the file did not reach it until shortly before this date and that it ruled as soon as possible after receiving the file.

The district court denied the petition, ruling that the commissioner had acted reasonably in dismissing Marovec’s appeal for failing to file a timely brief. Contrary to Marovec’s interpretation, the district court interpreted the show cause order as providing Marovec an opportunity to show why he did not file a timely brief. And because, as the show cause ruling indicated, Marovec did not provide an adequate reason for his failure to file a timely brief, the court ruled the commissioner was well within her discretion to dismiss the appeal.

Marovec appealed, and we transferred the ease to the court of appeals. The court of appeals affirmed, stating:

The commissioner gave claimant an opportunity to respond to the order to show cause, including filing evidence, briefs, and exceptions to the order. Claimant’s only response [for his] failure to timely file a brief was [that his failure was due to] “an oversight.” The commissioner found this response inadequate and imposed sanctions. The district court correctly evaluated the commissioner’s exercise of discretion and affirmed. We cannot say the commissioner’s decision meets the definition of “unreasonable, arbitrary, capricious, or an abuse of discretion.” Iowa Code § 17A.19(10)(w).

We granted Marovec’s application for further review.

II. Issue.

The sole issue is whether the commissioner abused her discretion when she dismissed Marovec’s intra-agency appeal because he did not file an appeal brief by the deadline imposed by Iowa Administrative Code rule 876 — 4.28.

III. Scope of Review.

Iowa Code chapter 17A governs judicial review of a decision or order of the workers’ compensation commissioner. Iowa Code § 86.26 (2001). When the district court exercises its judicial review power, it acts in an appellate capacity. Mycogen Seeds v. Sands, 686 N.W.2d 457, 463 (Iowa 2004). In reviewing the district court’s decision, we apply chapter 17A standards to determine whether the conclusions we reach are the same as those of the district court. Id. at 464. “If they are the same, we affirm; otherwise we reverse.” Id.

In this case, the issue involves whether the commissioner abused her discretion. Abuse of discretion is encompassed in one of the grounds chapter 17A recognizes as a basis for reversing agency action:

10. The court may affirm the agency action or remand to the agency for further proceedings. The court shall reverse, modify, or grant other appropriate relief from agency action ... if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:
n. Otherwise unreasonable, arbitrary, capricious, or an abuse of discretion.

Iowa Code § 17A.19(10)(»). “ ‘Discretion is abused when it is exercised on grounds clearly untenable or to an extent clearly unreasonable.’ ” Martin Marietta Materials, Inc. v. Dallas County, 675 N.W.2d 544, 553 (Iowa 2004) (citation omitted). An abuse of discretion also means the decision lacked rationality and was made clearly against reason and evidence. Dico, Inc. v. Iowa Employment Appeal Bd., 576 N.W.2d 352, 355 (Iowa 1998).

In making the determination whether the agency’s action is unreasonable, arbitrary, capricious, or an abuse of discretion, the court “[sjhall give appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(ll)(c). In this instance, we think we must give appropriate deference to the commissioner’s decision because by law the commissioner is required to adopt and enforce rules and procedures necessary to implement Iowa Code chapter 86. See id. § 86.8; see also id. § 17A.3(1)(6) (“[E]ach agency shall ... [ajdopt rules of practice setting forth the nature and requirements of all formal and informal procedures available to the public, including a description of all forms and instructions that are to be used by the public in dealing with the agency.”). In reaching its decision, the commissioner relied on several of those rules, which we will mention shortly. More specifically, with respect to intra-agency appeals, Iowa Code section 86.24 provides that “[a]ny party aggrieved by a decision, order, ruling, finding or other act of a deputy commissioner in a contested case proceeding arising under [chapter 86] or chapter 85 or 85A may appeal to the workers’ compensation commissioner in the time and manner provided by rule.” Id. § 86.24(1) (emphasis added).

Finally, in our review, we must keep two principles in mind. First, subject to certain exceptions not relevant here, the party challenging the agency action has the burden of proving the illegality of the agency action and the prejudice required. Id. § 17A.19(8)(a). Second, the standards specified in chapter 17A are to be applied to the challenged agency action as of the time the action was taken. Id. § 17A.19(8)(5).

IV. Analysis.

An appeal of a contested workers’ compensation case must be commenced within twenty days of the decision, order, or ruling by filing a notice of appeal. Iowa Admin. Code r. 876 — 4.27 para. 1. Maro-vec’s proceeding before the workers’ compensation commissioner is a contested workers’ compensation case. See Iowa Code § 86.14. As mentioned, by statute, the commissioner’s rules govern the time and manner of Marovec’s intra-agency appeal. See id. § 86.24(1). The statute also requires an appealing party to provide a transcript of a contested case proceeding at the party’s cost and requires the appealing party or the party’s attorney to file an affidavit with the commissioner within ten days after the appeal is filed stating that the transcript has been ordered. Id. § 86.24(4).

There are several administrative rules governing the time and manner of the appeal. One rule requires the appeal to be commenced within twenty days of the filing of the decision, order, or ruling by filing a notice of appeal with the commissioner. Iowa Admin. Code r. 876- — 4.27 para. 1. Another requires the appealing party to serve its brief within fifty days after the date on which notice of appeal was filed, or within twenty days after the transcript is filed, whichever date is later. Id. r. 876 — 4.28(1). The appellee must serve its brief within twenty days after service of appellant’s brief. Id. The appellant must serve its reply brief, if any, within ten days after service of appellee’s brief. Id. The same rule requires that any briefs required or allowed by the rule shall be filed promptly following service. Id. r. 876 — 4.28 para. 1. Briefs shall include a statement of issues. Id. r. 876— 4.28(4)(6). The appeal must be decided on the issues presented by the appellant and appellee except as provided in rule 876— 4.29. Id. r. 876 — 4.28(4)(d).

Besides this method of appeal, the commissioner on its own motion may review a deputy’s decision. Id. r. 876 — 4.29; see also Aluminum'Co. of Am. v. Musal, 622 N.W.2d 476, 478 (Iowa 2001). The commissioner must file such motion within twenty days of the deputy’s decision. Id. In a notice mailed (1) to the parties by certified mail, return receipt requested and (2) on the date the motion is filed, the commissioner must specify the issues to be reviewed and the additional evidence, if any, to be obtained by the parties. Iowa Admin. Code r. 876 — 4.29; see also Iowa Code § 17A.15(3) (“On appeal from or review of the proposed decision, the agency has all the power which it would have in initially making the final decision except as it may limit the issues on notice to the parties or by rule.”).

The rules further provide what may happen if the parties do not conform to these rules:

If any party to a contested case or an attorney representing such party shall_ fail to comply with these rules or any order of a deputy commissioner or the workers’ compensation commissioner, the deputy commissioner or workers’ compensation commissioner may dismiss the action.

Iowa Admin. Code r. 876 — 4.36.

In Walsh v. Schneider National Carriers, a deputy commissioner dismissed a claimant’s contested case without prejudice because of her failure to comply with numerous discovery orders. 497 N.W.2d 895, 896 (Iowa 1993). The commissioner affirmed the deputy’s decision. Id. The claimant petitioned for judicial review, contending that the commissioner had no authority to impose sanctions and dismiss her contested case. Id. at 896-97. The district court affirmed, and the claimant appealed. Id.

Relying on Iowa Code sections 86.8(1) and 17A.3(1)(&) and administrative code rules 4.34 (providing that any case on file in excess of two years may be subject to dismissal) and 4.36, we concluded that the commissioner indeed had the authority to dismiss a contested case proceeding when the claimant fails to comply with an agency order or fails to prosecute the case. Id. at 897. Because the claimant missed nearly every deadline the agency had set for over two years and because she was given two warnings before the dismissal, we held the commissioner was well within its discretion in ordering dismissal of the claimant’s contested case. Id.

In Aluminum, Co. of America v. Musal, the claimant failed to file a brief in support of his appeal, and the employer failed to file a brief in support of its cross-appeal. 622 N.W.2d at 477. After the case sat idle for more than a year, the commissioner filed an appeal decision increasing the claimant’s disability rating. Id. The employer petitioned for judicial review, claiming the commissioner had no power to review the deputy’s decision because the claimant had failed to file a brief identifying the issues to be decided on appeal. Id. The district court reversed, vacated the commissioner’s decision, and reinstated the deputy’s decision. Id. The claimant appealed, contending that because the procedural rules governing appeals to the commissioner do not require, but only permit, briefs to be filed, the notice of appeal authorizes the commissioner to generally review a deputy’s decision if briefs are not filed. Id. at 478. The employer contended that both the Iowa administrative rules and due process require the issues in an appeal to be identified before the commissioner is authorized to enter a decision. Id.

Viewing the methods by which an appeal can be considered by the commissioner, we concluded that whether the parties filed an appeal or the commissioner considered the case on its own motion, “the rules clearly contemplate that the issue or issues for review will be identified.” Id. We also recognized the commissioner’s authority to impose sanctions, including dismissal, for failure to comply with the rules. Id.

Relying on Iowa Code section 17A.15(3), we reasoned:

Once a case comes before the commissioner by notice of appeal or sua sponte review, the commissioner is empowered to make the final decision. Thus, we conclude the commissioner was authorized in this case to enter a decision even though the parties did not file briefs or identify issues for review.

Id. at 478-79 (citation omitted).

However, because this was a review by the commissioner on its own motion, we held — consistent with due process and statutory procedures — that the same rules which apply to cases coming before the commissioner by notice of appeal apply to the commissioner’s sua sponte review. Id. at 479. Consequently, the commissioner had to give notice of the issues it would consider and allow the parties to file briefs. Id. at 480. We concluded that the district court should have remanded the case to the commissioner, and given the commissioner the option of imposing sanctions or notifying the parties of the review to be taken. Id. Of course, one of the sanctions the commissioner could impose on remand was dismissal of the appeal for failure to file a brief. Id. at 478; see Iowa Admin. Code r. 876 — 4.36.

Here, the commissioner ordered Marovec to show good cause why his appeal should not be dismissed for failing to file a brief as required by the rules. Ma-rovec’s only response was that his failure to file a brief was “due to an oversight.”

We have defined “good cause” in the context of setting aside a default judgment:

A “good cause” ... is a sound, effective and truthful reason. “It is something more than an excuse, a plea, apology, extenuation, or some justification, for the resulting effect.” It is then clear that the facts of each case govern the determination of whether the trial court’s action was proper.

Handy v. Handy, 250 Iowa 879, 883, 96 N.W.2d 922, 925 (1959) (citation omitted).

Marovec’s response appears truthful, but it is not anything more than an excuse. We have held that oversight is insufficient cause for failing to follow court rules. See Peoples Natural Gas Co. v. City of Hartley, 497 N.W.2d 874, 875-76 (Iowa 1993) (district court did not abuse its discretion denying party’s motion for jury trial when party’s failure to file timely jury demand was due to inadvertence and oversight); Schloemer v. Uhlenhopp, 237 Iowa 279, 284-85, 21 N.W.2d 457, 459 (1946) (“It appears affirmatively that appellant’s attorney was familiar with the Rule [concerning jury demands]. Appellant must be held responsible for his attorney’s knowledge of the Rule and for the inadvertence that resulted in failure to observe it. We cannot say there was an abuse of discretion in denying his motion for jury trial. To hold otherwise would be a virtual annulment of the Rule.”).

According to statute, administrative rules, and case law, the commissioner certainly had discretion to dismiss the appeal. Imposing a sanction permitted by agency rule is not clearly irrational or unreasonable when, as here, the reason for the sanction is obvious: Marovec — without good cause — failed to file an appeal brief in a timely manner. Moreover, we must keep in mind that we are required to give deference to the commissioner’s decision to dismiss the appeal. Iowa Code § 17A.19(ll)(c); see also Cowitz v. Alaska Workers’ Comp. Bd., 721 P.2d 635, 637-38 (Alaska 1986) (affirmed court’s order dismissing an administrative appeal for lack of diligent prosecution; appellant had responsibility to file brief and had no valid reason for not doing so; court rule allowed dismissal on its own motion even when notice of default had not been given); Kuvaja v. Bethel Sav. Bank, 495 A.2d 804, 806-07 (Me.1985) (claimant filed motion to dismiss employer’s appeal for want of prosecution based on rule allowing dismissal for want of prosecution; applying a fundamental fairness analysis, court concluded agency acted within its discretion in dismissing employer’s appeal when employer had “abundant” time to prepare brief, had actual notice of briefs due date, and did not file a brief until it was made aware of its default by the claimant’s motion to dismiss); McElreath v. Wyoming, 901 P.2d 1103, 1104, 1106 (Wyo.1995) (district court’s dismissal of appeal for filing a notice of appeal rather than a petition for review was a harsh but permissible sanction, given that another rule provided for dismissal for the failure to comply with appellate rules).

At first blush, the decision to dismiss the appeal may seem harsh in light of the circumstances: dismissal was not required by agency rules, and the commissioner had received briefs from both parties on the substantive issues by the time she ruled on the order to show cause. However, several factors mitigate any such apparent harshness.

First, the commissioner gave Marovec the opportunity to provide a good reason for his failure to file a brief. We must assume that had he done so, the commissioner would not have dismissed the appeal. But as mentioned, the only reason Marovec could provide was his counsel’s inadvertence, which was not good enough.

Second, we must keep in mind that we are dealing with an agency and not the district court. The difference becomes apparent when one contrasts, for example, the district court’s authority to dismiss an action for failure to comply with a discovery order with the commissioner’s authority to dismiss an appeal for failure to comply with the commissioner’s rules. Administrative rule 876 — 4.35 recognizes this difference. It states that our rules of civil procedure which apply to the district court do not apply to contested cases before the commissioner when such rules are “in conflict with [the commissioner’s] rules” or “obviously inapplicable to the ... commissioner.” Iowa Admin. Code r. 876' — 4.35. In such instances, the commissioner’s “rules or the appropriate Iowa Code section shall govern.” Id. As mentioned, a special statute expressly allows the commissioner to adopt and enforce rules to implement Iowa Code chapter 86. See Iowa Code § 86.8(1). Another statute states that any aggrieved party “may appeal to the workers’ compensation commissioner in the time and manner provided by rule.” Id. § 86.24(1) (emphasis added). Pursuant to these statutes, an administrative rule allows the commissioner to dismiss an appeal for failure to comply with the commissioner’s rules. See Iowa Admin. Code r. 876' — 4.36 Obviously, because of these statutes and administrative rules, Iowa’s civil procedure rules dealing with sanctions for failure to comply with discovery orders, for example, simply do not apply to the commissioner’s authority to dismiss an appeal for failure to comply with the commissioner’s rules. Compare Iowa R. Civ. P. 1.517(2) (listing a number of sanctions the district court may impose, including dismissal, in discovery matters for failure to comply with court order), with Iowa Code §§ 86.8(1), 86.24(1), and Iowa Admin. Code r. 876— 4.36; see also Iowa Admin. Code r. 876— 4.35.

These differences become important because we have insisted that before the district court may dismiss an action for failure to comply with a discovery order there must be a finding that the failure to comply was a result of willfulness, fault, or bad faith. Kendall/Hunt Publ’g Co. v. Rowe, 424 N.W.2d 235, 240 (Iowa 1988). We see nothing in the statutes or administrative rules which we have cited that impose a similar requirement when the commissioner dismisses an appeal for failure to comply with the commissioner’s rules.

Third, Marovec had his day in court and what he lost was his right to have the commissioner consider his appeal. In contrast, plaintiffs in the district court lose their day in court if dismissal is the sanction. Clearly, the loss in the latter case is more extreme, and for that reason extra precaution, as mandated by Kendall/Hunt, is essential.

Fourth, we are duty bound by statute to give deference to the commissioner’s decision in these matters. See Iowa Code § 17A.19(ll)(c). Deference means to yield judgment. Webster’s Third New International Dictionary 591 (2002). In short, whether or not to impose the sanction of dismissal is a judgment call on the commissioner’s part. It is of no concern to a court reviewing an administrative sanction whether a different sanction would be more appropriate or whether a less extensive sanction would have sufficed; such matters are the province of the agency. 2 Am.Jur.2d Administrative Law § 453, at 388 (2004); cf. Cal. Real Estate Loans, Inc. v. Wallace, 18 Cal.App.4th 1575, 23 Cal.Rptr.2d 462, 465 (1993) (“Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed.”); Yeksigian v. City of Chicago, 231 Ill.App.3d 307, 172 Ill.Dec. 731, 596 N.E.2d 10, 14 (1992) (“The mere fact a reviewing court considers a different sanction more appropriate does not render a decision arbitrary”).

Last, we must also keep in mind the purpose behind the workers’ compensation act:

“The fundamental reason for the enactment of [the workers’ compensation act] is to avoid litigation, lessen the expense incident thereto, minimize appeals, and afford an efficient and speedy tribunal to determine and award compensation under the terms of this act.
‘It was the purpose of the legislature to create a tribunal to do rough justice — • speedy, summary, informal, untechnical. With this scheme of the legislature we must not interfere; for, if we trench in the slightest degree upon the prerogatives of the commission, one encroachment will breed another, until finally simplicity will give way to complexity, and informality to technicality.’

Zomer v. West River Farms, Inc., 666 N.W.2d 130, 133 (Iowa 2003) (emphasis added) (quoting Flint v. City of Eldon, 191 Iowa 845, 847, 183 N.W. 344, 345 (1921) (citation omitted)). Those words are as true today as they were eighty-four years ago.

Because the commissioner has the responsibility for deciding cases in an expeditious and timely manner, we must not “trench in the slightest degree upon the prerogatives of the [commissioner]” in this area. Id. On this record, we cannot say that Marovec has established that the commissioner abused her discretion in dismissing his appeal.

V. Disposition.

Finding no abuse of discretion regarding the commissioner’s decision to dismiss Ma-rovec’s appeal, we affirm the decision of the court of appeals and the judgment of the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except CARTER, J„ who takes no part, CADY, J., who dissents and WIGGINS, J„ who dissents.

CADY, Justice

(dissenting).

I respectfully dissent. I agree with the majority that the commissioner had authority to dismiss the appeal. However, the exercise of this authority was abused when the commissioner failed to impose a lesser sanction that would have accomplished the same purpose as a dismissal.

Although judges have a great deal of discretion in imposing sanctions for failing to comply with procedural rules, the range of discretion narrows when dismissal is imposed. Kendall/Hunt Publ’g Co. v. Rowe, 424 N.W.2d 235, 240 (Iowa 1988) (citing Smiley v. Twin City Beef Co., 236 N.W.2d 356, 360 (Iowa 1975)). Thus, before imposing the sanction of dismissal, we have required a judge to find that the failure “to comply was the result of willfulness, fault or bad faith.” Id. (citing Smiley, 236 N.W.2d at 360). The rationale for this special “rule reflects the ‘proper balance between the conflicting policies of the need to prevent delays and the sound public policy of deciding cases on them merits.’ ” Id. (quoting Edgar v. Slaughter, 548 F.2d 770, 772 (8th Cir.1977); citing Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 996 (8th Cir.1975)). Moreover, this balance should render the sanction of dismissal a “rare judicial act.” Id. A sanetion that deprives litigants of their day in court carries due process implications. See Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 209, 78 S.Ct. 1087, 1094, 2 L.Ed.2d 1255, 1265 (1958).

In this case, the majority departs from this accepted standard by elevating the policy of moving cases through the judicial system without' delay over the venerable and time-honored judicial policy of deciding cases on their merits. Instead of requiring willfulness, fault; or bad faith as a basis for a dismissal, the majority establishes a new standard based on the .absence of “good cause.” Under the new standard, if an attorney is unable to establish “good cause” for the failure to file a brief with the court within an established deadline, judges are permitted to dismiss the case with no final adjudication on the merits. This new standard is not only hostile to the fundamental existence of our system of justice, but the practice of law. It gives judges too much authority to deprive litigants of a final adjudication of a claim on the merits, and it will give rise to tension between judges and lawyers, as well as lawyers and clients. It is a step in the wrong direction, and it falls short of the due process standard of fault that must be met to support the dismissal of a claim. See Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066-68 (2d Cir.1979) (considerations of fair play dictate courts eschew the harshest sanctions when faced with conduct amounting to mere oversight of counsel).

The reality of this case is that the attorney responsible for filing the brief honestly acknowledged his neglect in missing the briefing deadline, and he promptly filed the required brief prior to the sanction hearing once informed of his mistake. There was no evidence that- the attorney had ignored deadlines in the past. Moreover, the employer did not object to the late-filed brief and promptly filed a brief addressing the substantive issues in the case. There were simply no aggravating circumstances supporting any form of bad faith or willfulness by the attorney. The delay was minimal, and a lesser sanction, such as assessment of a fine against the attorney, would easily have sustained the goal of moving cases through the system without unnecessary delay. Dismissal under the circumstances of this case was a harsh and punitive sanction, contrary to the concept of due process. Discretion permits a judge to make a choice among alternatives, but does not permit a judge to impose the severe sanction of dismissal when a less drastic sanction would equally serve as a proper deterrent or would otherwise satisfy the need for imposing a sanction. By failing to intervene in the decision of the commissioner, we have abrogated our important responsibility to place proper limits on judicial discretion, and we have failed to fully consider the impact of our decision on lawyers, clients, and the practice of law.

WIGGINS, Justice

(dissenting).

I respectfully dissent. I agree with the majority that counsel’s inadvertence is not good cause to avoid sanctions. I disagree, however, with the majority’s analysis on whether the commissioner abused her discretion in determining the proper sanction in this case.

Under the Administrative Procedure Act,

[t]he court may affirm the agency action or remand to the agency for further proceedings. The court shall reverse, modify, or grant other appropriate relief from agency action ... if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:
n. Otherwise unreasonable, arbitrary, capricious, or an abuse of discretion.

Iowa Code § 17A.19(10)(%) (2001). We are also required to “give appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(ll)(e). I cannot see how the majority can apply these rules of judicial review to this case when the industrial commissioner did not provide any reasons for choosing the sanction she did.

In situations involving dismissal or default, we have said:

[Fundamental fairness should require a district court to enter an order to show cause and hold a hearing, if deemed necessary, to determine whether assessment of costs and attorney fees or even an attorney’s citation for contempt would be a more just and effective sanction. Dismissal and entry of a default judgment should be the rare judicial act. When noncompliance is the result of dilatory conduct by counsel, the courts should investigate the attorney’s responsibility as an officer of the court and, if appropriate, impose on the client sanctions less extreme than dismissal or default, unless it is shown that the client is deliberately or in bad faith failing to comply with the court’s order.

Kendall/Hunt Publ’g Co. v. Rowe, 424 N.W.2d 235, 240-41 (Iowa 1988). Fundamental fairness is an important consideration the commissioner must use in processing a workers’ compensation claim. See Michael Eberhart Constr. v. Curtin, 674 N.W.2d 123, 127 (Iowa 2004) (holding it is unfair to allow claimant to amend his petition after the hearing); Univ. of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d 92, 97 (Iowa 2004) (holding in determining if a party has sufficient notice of an issue, the test is fundamental fairness, not whether the notice meets the technical rules of common-law pleading); Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 828 (Iowa 1992) (same). I believe fundamental fairness requires the commissioner to apply the analysis used in Kendall/Hunt before the commissioner defaults a party or dismisses an action.

Although the commissioner gave a reason for sanctioning the claimant, the commissioner did not give any reasons for choosing the harshest sanction, dismissal of the appeal. The Administrative Procedure Act only requires us to give “appropriate deference to the view of the agency.” Giving appropriate deference to the view of the commissioner is not the same as yielding to the commissioner’s judgment, when the reviewing court does not know the reasons why the commissioner chose to dismiss the appeal as the sanction for counsel’s inadvertence. In order for us to determine whether the commissioner abused her discretion in choosing the appropriate sanction, she must provide the reviewing court with reasons for her actions so the reviewing court can at least determine that the commissioner properly exercised her discretion. See Litterer v. Judge, 644 N.W.2d 857, 362 (Iowa 2002).

Dismissal may have been the appropriate sanction; however, under this record I am unable to give the commissioner the appropriate deference without knowing the reasons why the commissioner chose the extreme sanction of dismissal. See State v. Keopasaeuth, 645 N.W.2d 637, 641 (Iowa 2002) (holding the reasons why a court imposes a sentence in a criminal case must be detailed sufficiently to allow appellate review of the discretionary action); State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000) (holding although the reasons need not be detailed, at least a cursory explanation must be provided to allow appellate review of the discretionary action). Therefore, I would remand this case to the agency to determine the appropriate sanction and require the commissioner to articulate her reasons for imposing the sanction.


author: STREIT, Justice.

text:
    In the Matter of Trust Fund A and the Trust Under Item VI, Both Under the WILL OF Alfred E. UCHTORFF, Deceased. Christa E. Uchtorff, Appellant, v. Sally Hanson, Taylor Armstrong-Lucas, and Julie Kurt, Appellees.
    No. 04-0288.
    Supreme Court of Iowa.
    March 18, 2005.

      Steven J. Havercamp of Stanley, Lande & Hunter, Davenport, for appellant.
    Steven H. Jacobs and Linda K. Neuman, of Betty, Neuman & McMahon, L.L.P., Davenport, for appellees.
   STREIT, Justice.

H.L. Mencken once said the capacity of human beings to bore one another seems vastly greater than that of any other animal. The subject-matter of this appeal — a medieval interest known as a remainder— proves Mencken’s point, although we shall do our best to bring matters to resolution as painlessly and interestingly as possible. Much is at stake.

At issue is a trust fund. After the family patriarch who controlled the trust fund died, his only child, a son, followed him to the grave. Years later the patriarch’s wife passed away. The district court ruled the son was not entitled to the trust fund unless he survived his mother. The son’s widow appeals. She claims her late husband’s interest vested upon his father’s death, and therefore she should receive the trust fund because the son left everything to her. We agree with the widow and reverse.

I. Facts and Prior Proceedings

The facts are not disputed. Alfred Uch-torff died in 1979. Alfred’s will is a hairy beast almost twenty pages in length. Fortunately, the parties only dispute “Item VI” of the will. In Item VI, Alfred exercised his power of appointment over “Trust A,” a trust fund his father established before a majority of the members of this -court were born. In relevant part, Item VI provided:

B. I appoint [the trust fund] property to [a bank] and to my wife Pearl E. Uchtorff, in trust, nevertheless, and to hold as a trust fund for the following uses and purposes, to wit:
1. During the lifetime of my wife Pearl E. Uchtorff ... the trustees shall pay to her ... the net income from the trust fund.
3. The provisions of this subdivision 3 shall be effective in any of the following stated events: (i) the event of the death of my said wife before my death; (ii) the event of remarriage of my said wife after my death without renunciation by her; (iii) the event of the death of my said wife after my death, without renunciation by her and tvithout remarriage by her; or (iv) the event of incompleteness or insufficiency or failure for any reason of the appointment hereinbe-fore made for the benefit of my said wife....
In any of the stated events ..., I appoint said [trust fund] ..., in the manner in this subdivision 3 ... provided.
(a) In the event that my son, Richard E. Uchtorff shall survive me, I appoint the [trust fund] to the said Richard E. Uchtorff, as an indefeasibly vested interest in fee.
(b) In the event that my son, Richard E. Uchtorff shall not survive me, I appoint the same to [a bank], and to Carolyn Uchtorff, ..., in trust nevertheless and to hold as a trust fund for [a class composed of the representative issue of the marriage of Richard and Carolyn, subject to divestment under certain circumstances.]

(Emphasis added.)

When Alfred died, he was survived by his wife, Pearl Uchtorff, and their son and only child, Richard Uchtorff. Richard was married to Carolyn Uchtorff. Richard and Carolyn had three children, Sally Hanson, Taylor Armstrong-Lucas, and Julie Kurt (“the children”). Richard and Carolyn eventually divorced, and Richard later married Christa Uchtorff.

Richard died in 1988. Richard disinherited his three children in his will, writing:

I make no provisions in this will for my children for several reasons which I consider sufficient, and generally because of their longstanding and continuous disrespectful conduct to me.

Richard left everything to Christa instead.

Pearl enjoyed the income from the trust fund until her death in 2003. She never renunciated her beneficiary interest in the trust fund, nor did she ever remarry. Today the trust fund contains hundreds of thousands of dollars.

After Pearl’s death, the bank, as surviving co-trustee of the trust fund, petitioned the district court for construction of Alfred’s will. Two factions claimed the trust fund as their own. Christa argued Richard’s remainder interest in the trust fund vested upon Alfred’s death and should now pass, like the rest of Richard’s assets, through Richard’s will to her. The children rejoined, asserting Christa’s claim must fail because Richard did not survive Pearl. The district court ruled Alfred’s will was ambiguous and did not specifically state what should happen if Richard predeceased Pearl. The court held Iowa’s new trust code therefore mandated the children receive the trust fund. Christa appealed.

II. Principles of Review

A declaratory judgment action to construe a will is tried in equity. Iowa Code § 633.33 (2003); see, e.g., In re Estate of Rogers, 473 N.W.2d 36, 39 (Iowa 1991); Holds v. Jameson, 201 N.W.2d 466, 468 (Iowa 1972). Our review is de novo. Iowa R.App. P. 6.4; see In re Estate of Hurt, 681 N.W.2d 591, 593 (Iowa 2004).

III. The Merits

A. Vested or Contingent Remainder

The first question presented in this appeal is whether Richard had a vested or a contingent remainder in the trust fund once he survived Alfred. Contrary to the district court, we think the plain and unambiguous language of Alfred’s will indicates Richard’s remainder interest in the trust fund vested at Alfred’s death.

1. General Principles

This appeal involves a remainder interest, long one of the law professor’s favorite instruments of torture. Stated in its most general terms, a remainder

is a future interest created in someone other than the transferor that, according to the terms of its creation, will become a present estate (if ever) immediately upon, and no sooner than, the expiration of all prior particular estates created simultaneously with it.

Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 62 (1984) (footnotes and emphasis omitted) [hereinafter Bergin & Haskell], Alfred’s will clearly gave Richard a remainder interest in the trust fund. Richard’s interest was a future interest that could become a present estate immediately upon and no sooner than when Pearl’s prior interest expired, i.e., when Pearl died, remarried, or renounced her life interest, but only if Richard survived Alfred.

A remainder is either vested or contingent. Moore v. McKinley, 246 Iowa 734, 745, 69 N.W.2d 73, 80 (1955).

A vested remainder, whereby the estate passes by the conveyance, but the possession and enjoyment are postponed until the particular estate is determined, is where the estate is invariably fixed to remain to certain determinate persons. Contingent remainders are where the estate in remainder is limited to take effect either to a dubious or uncertain person or upon a dubious or uncertain event, so that the particular estate may be determined and the remainder never take effect.

Id. at 746W7, 69 N.W.2d at 81 (citing Fulton v. Fulton, 179 Iowa 948, 957, 162 N.W. 253, 256 (1917)); see also In re Estate of Ruhland, 452 N.W.2d 417, 419 (Iowa 1990) (same definitions); Pringle v. Houghton, 249 Iowa 731, 741, 88 N.W.2d 789, 794-95 (1958) (same); Dickerson v. Morse, 200 Iowa 115, 117, 202 N.W. 601, 603 (1925) (same). A remainder may be vested even when enjoyment is postponed until the happening of some future condition; it is contingent only if the remainder interest is “dependent on some dubious circumstance, through which it may be defeated.... ” Taylor v. Taylor, 118 Iowa 407, 409, 92 N.W. 71, 71 (1902) (emphasis added). Vested remainders are devisable and alienable. Moore, 246 Iowa at 746, 69 N.W.2d at 80.

To determine whether a remainder is vested or contingent, our well-settled canons of will interpretation apply. We need not repeat all of those familiar maxims here. See Rogers, 473 N.W.2d at 39 (reciting basic principles). It will suffice to simply remark that

whether a testamentary remainder is vested or contingent must be determined by the intent of the testator as expressed by the language of the will, if it is plain and unambiguous, and nothing else, considering the will as a whole, and giving effect to every provision thereof if it is reasonably possible.

Moore, 246 Iowa at 749, 69 N.W.2d at 82. Whether a remainder is contingent or vested must also be constantly reassessed as time passes, events happen, and contingencies are fulfilled. 28 Am. Jur. 2d Estates § 255, at 273 (2000); see, e.g., Katz Inv. Co. v. Lynch, 242 Iowa 640, 654, 47 N.W.2d 800, 809 (1951) (holding previously contingent remainder vested upon a death).

2. The Terms of the Will: Richard’s Remainder Vested Upon Alfred’s Death

To decide the nature of Richard’s remainder, the parties direct our attention to Item VI, paragraph 3(a) of the will. That provision states:

(a) In the event that my son, Richard E. Uchtorff shall survive me, I appoint the [trust fund] to the said Richard E. Uch-torff, as an indefeasibly vested interest in fee.

This provision of the will initially rendered Richard’s remainder interest contingent, because appointment of the trust fund to Richard was expressly conditioned upon one uncertain event, i.e., that Richard survive Alfred. Once Richard survived Alfred, this condition, the only uncertain event upon which appointment of the trust fund to Richard was predicated, was fulfilled. Richard’s interest in the trust fund vested when Alfred died and needed only to wait until Pearl’s interest ended to become an estate in possession. See 28 Am. Jur. 2d Estates § 255, at 273 (2000) (“[U]pon the happening of the contingency upon which the estate in remainder is limited, the remainder becomes vested in right and awaits only the termination of the precedent particular estate to become an estate in possession.”).

Survival to Time of Possession Not Required

It could be argued the express terms of the will state Richard’s remainder remained contingent until Pearl’s death. The will indicates appointment of the trust fund to Richard in the manner set forth in paragraph 3(a) would occur in “in the event” Pearl renounced the trust fund, remarried, or died. Although it is true this part of Alfred’s will places a condition upon Richard’s possession of the trust fund, see Points v. Points, 312 Ky. 348, 227 S.W.2d 913, 915 (1950) (equating “in the event” with “if’), this condition does not make Richard’s interest a contingent remainder. Expiration of Pearl’s estate was inevitable. Although Pearl’s interest might end earlier through renunciation or remarriage, it was certain to cease at the very latest at her death. See Dickerson, 200 Iowa at 118, 202 N.W. at 603 (pointing out, as evidence of vestedness, that “termination of the precedent estate, is certain to oceur[,] if not by the remarriage of the widow, then by her death”).

Only when a condition serves to make it dubious or uncertain that the remainder interest will ever pass does the condition make the remainder contingent. Moore, 246 Iowa at 746-47, 69 N.W.2d at 81. It does not matter that Richard did not survive Pearl, or even that it could not have been known at any time prior to Richard’s death whether Richard would survive Pearl and gain possession of the trust fund. “It is not the certainty of possession or enjoyment which distinguishes the vested remainder, but the certainty of the right to future enjoyment if the remainderman lives until the life tenancy terminates.” Lingo v. Smith, 174 Iowa 461, 468, 156 N.W. 402, 405 (1916); accord Dickerson, 200 Iowa at 118, 202 N.W. at 603; cf. Houts, 201 N.W.2d at 470-71 (noting an estate is not rendered contingent because the portion, quantity, or amount of property beneficiary will receive remains uncertain until a future date). This is because

[a] vested remainder confers a present fixed right to the future enjoyment. .... [T]he fact that the devisee is not to have the enjoyment of possession until the termination of the intermediate estate does not prevent the vesting of the remainder immediately upon the death of the testator.... No uncertainty of enjoyment will render the remainder contingent.

Moore, 246 Iowa at 745-46, 69 N.W.2d at 80 (emphasis added, citations omitted); see Callison v. Morris, 123 Iowa 297, 300-01, 98 N.W. 780, 781-82 (1904) (expressing same principle and holding son need not survive mother for remainder to'vest); see also 28 Am. Jur. 2d Estates § 265, at 281 (2000). Subdivision three of the will was certain to take effect sometime; if Richard had lived long enough, he would have had the right to enjoy the trust fund when Pearl died. Put another way, Richard’s remainder vested in interest upon Alfred’s death, even if it was not secured in enjoyment or possession. “Death of the life tenant merely fixed the time for enjoyment.” Clarken v. Brown, 258 Iowa 18, 24, 137 N.W.2d 376, 379 (1965). In this case Pearl’s.death simply came too late for Richard.

To rule otherwise would have absurd results. “[Tjhere could be no such thing as a vested remainder” because the very definition of a remainder assumes the existence of a prior estate. Bergin & Haskell at 69. As we stated in Katz,

Of course [a remainderman] may predecease the termination of the trust. But this does not make the remainder ... contingent for it is an uncertainty which may attach to all remainders, vested or contingent. Certainty of possession and enjoyment by the remainderman is not essential to a vested remainder.

242 Iowa at 652-53, 47 N.W.2d at 808 (citations omitted); see also Dickerson, 200 Iowa at 118, 202 N.W. at 603 (“He may die before coming into the actual possession of the remainder, but that is a contingency attaching to all remainders.”).

At the time of Alfred’s death it was clear that whatever happened in the future,-it was, certain Pearl’s interest would terminate, and Richard was next in line. Because the trust fund was certain to pass at some time, “[t]he remainder then vested and only the right of possession and, enjoyment await[ed] termination of the trust.” Katz, 242 Iowa at 654, 47 NW.2d at 809. The text of the will states as much: Richard, upon surviving his father, took the trust fund “as an indefeasibly vested interest in fee.” This phrase plainly and specifically indicates Richard’s interest in the trust fund vested at the moment of his father’s death and was not subject to de-feasance upon the happening of any subsequent event. Richard was free to devise his vested remainder as he saw fit.

Other Evidence of a Vested Remainder

The structure of-the devise in Article VI bears the telltale signs of a vested remainder. First, the remainder was invariably fixed to a determinate person, Richard, whose only impediment to taking possession and enjoyment of the trust corpus was based upon a certain ■ event, at the very latest his mother’s death. See Moore, 246 Iowa at' 746, 69 N.W.2d at 81. Second, nothing in Article VI states that Richard’s interest was contingent upon surviving his mother. Dickerson presents similar facts in this respect-. We stated:

The devise-is not to'the son in case he survives his mother, or is living at her remarriage, 'or at the termination of the trust. The devise of the remainder after the termination of the particular estate is to the son, to be his “sole and absolute property,” subject to the trust. No disposition is made of the estate in case of his death before the termination of the trust.

200 Iowa at 118, 202 N.W. at 603; cf. Johnston v. Boothe, 234 Iowa 201, 205, 12 NW.2d-176, 178 (1943) (finding vested remainder in absence of “language ... expressing contingency” such as “if -living,” “then in being,” or “if he survive”). Third, the will does not explicitly provide any alternate beneficiaries who should take on the condition that Richard failed to survive his mother. The failure to do so is evi-dehce of a vested remainder. See Dickerson, 200 Iowa at 119, 202 N.W. at 603 (“[FJailure to make provision for the disposition of the remainder, if the son should die before the termination of the trust, is a circumstance entitled to weight as indicating that the condition is not precedent to the vesting of the estate.”); Schrader v. Schrader, 158 Iowa 85, 90, 139 N.W. 160, 162 (1912) (same); see also Johnston, 234 Iowa at 205, 12 N.W.2d at 178. Fourth, an alternative arrangement was provided in the will only for the circumstance in which Richard did not survive his father, which, as we have shown previously, was the only uncertain event upon which Richard’s interest was predicated. Fifth, Article VI is different than another ■ part of the will. Article IV of Alfred’s will stated Richard was entitled to other assets “[i]n the event [he] shall outlive the survivor of myself and my said wife.” (Emphasis added.) Article VI, on the other hand, simply says “[i]n the event that my son, Richard E. Uchtorff shall survive me.” (Emphasis added.) Unlike Article VI, Article IV also provided for the disposition of the Article IV property in equal shares to Richard’s children should Richard predecease Pearl. Divining testator intent is never an easy task, but looking at the whole of the will in this case it is clear Alfred knew how to make Richard’s interest contingent upon Richard surviving Pearl but did not do so with respect to the trust fund. See Elka-der Prod. Credit Ass’n v. Eulberg, 251 N.W.2d 234, 237-38 (Iowa 1977) (indicating testamentary instrument must be considered as a whole and each part given meaning and effect if possible).

No Latent Ambiguity

The children nonetheless contend Alfred’s wil^jsofltains a latent ambiguity because it does not in so many words indicate who should take under the trust if Richard did not survive his mother. There is no latent ambiguity. Alfred plainly stated what sort of interest Richard had and made clear it was a vested interest once Richard survived Alfred. The children themselves admit there is a “certain lock-tight quality” about the phrase “indefeasibly vested interest in fee”; we agree and furthermore hold there is no room for any other interpretation. To rule otherwise would require us to rewrite the will, judicially superinscribing a new condition of survival. We will not do so. See In re Estate of Fairley, 159 N.W.2d 286, 291 (Iowa 1968) (refusing to rewrite will when its language was clear and unambiguous).

In re Trust of Cross

The Iowa Court of Appeals arrived at the same conclusion as we do on similar facts. In In re Trust of Cross, the testator bequeathed her property in trust to a trustee, directing that necessary amounts from the income and corpus of the trust be used to care for her daughter. 551 N.W.2d 344, 346 (Iowa Ct.App.1996). The testator also directed that a portion of the remaining trust assets be given to the testator’s brother “to be his absolutely and in his own right” upon her daughter’s death. Id. at 347. The brother predeceased the daughter. Id. at 346. The court of appeals, principally relying upon the above quoted phrase, held the plain language of the will indicated the brother’s rights vested at the time of the testator’s death, and therefore it did not matter that he predeceased the daughter. Id. at 347-48. For similar reasons, the court also held the will was not latently ambiguous. Id. at 348. The court ruled the terms of the will were clear and plain, and by its terms the will “did not place a survivorship contingency upon [the brother’s] interest.” Id. The same reasoning applies with equal, if not greater force in this case, given the utterly unambiguous phrase “indefeasibly vested interest in fee.” Cf. Dickerson, 200 Iowa at 118, 202 N.W. at 603 (finding use of locution “sole and absolute property” was evidence of vested remainder).

B. The Iowa Trust Code

1. Iowa Code § 633.4701

The children also maintain a provision of the new Iowa Trust Code supersedes our reasoning and that of the court of appeals in Cross. That provision provides:

Unless otherwise specifically stated by the terms of the trust, the interest of each beneficiary is contingent on the beneficiary surviving until the date on which the beneficiary becomes entitled to possession or enjoyment of the beneficiary’s interest in the trust.

Iowa Code § 633.4701(1) (emphasis added). The children contend Alfred’s will is insufficiently specific concerning the nature of Richard’s interest in the trust fund. Christa rejoins that the trust code does not apply in this case, and, to the extent it purports to apply retroactively to this case and divest Roger’s estate of a vested property right, it is unconstitutional. See Iowa Const, art. I, § 21 (“No ... law impairing the obligation of contracts shall ever be passed.”); see also Iowa R.R. Land Co. v. Soper, 39 Iowa 112,117 (1874) (recognizing retrospective laws may be declared unconstitutional if they interfere with vested rights). Although the legislature enacted the trust code in 1999, see 1999 Iowa Acts ch. 125, and it did not become effective until 2000, see 1999 Iowa Acts ch. 125, § 109, it purports to apply to all trusts past, present, and future, as well as all proceedings concerning trusts commenced on or after July 1, 2000. See Iowa Code § 633.1106; see also In re Clement Trust, 679 N.W.2d 31, 37 n. 1 (Iowa 2004).

2. Alfred’s Will Specifically States Richard’s Interest Vested

Alfred’s will states with sufficient specificity that Richard’s interest vested upon his mother’s death. By its terms it states Richard took “an indefeasibly vested interest in fee.” It is true Alfred’s will does not mimic the statute and state “the interest of each beneficiary is not contingent on the beneficiary surviving until the date on which the beneficiary becomes entitled to possession or enjoyment of the beneficiary’s interest in the trust.” This is not surprising, however, since Alfred’s will was written decades before the new trust code was a glimmer in the legislature’s eye. We do not think the statute requires magic words. “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” Oliver Wendell Holmes, Jr., Law in Science and Science in Law, 12 Harv. L. Rev. 443, 460 (1899). This is not so much a matter of interpretation than it is of translation. Translating the old-fashioned phrase “indefeasibly vested interest in fee” into post-trust code language, we find a specific statement that Richard need not survive Pearl. See In re Estate of Arends, 311 N.W.2d 686, 689 n. 2 (Iowa Ct.App.1981) (“[Ijntention should be determined at the time the will is made, based upon the facts then existing.”). This reading of the statute is consistent with the overall framework of the trust code. “The provisions of a trust shall always control and take precedence over any section of this trust code to the contrary.” Iowa Code § 633.1105. The provisions of Alfred’s will that granted Richard a vested interest therefore trump any provisions in the trust code that would, by default, mandate a different result. Notwithstanding the enactment of the new trust code, the intent of the testator still reigns supreme in this instance.

3. A Little History Helps

Some history will also illuminate matters. As indicated, Alfred referred to Richard’s interest as an “indefeasibly vested interest in fee.” Given the history of the law in the area, Alfred’s use of this phrase is telling. The question has often arisen in the courts as to whether, in the absence of such a phrase, one should imply a-condition of survival of the possessor of the precedent estate. Historically, courts did not do so; for various reasons, remainder interests were usually construed as vested rather than contingent whenever possible. See, e.g., Fulton, 179 Iowa at 951, 162 N.W. at 254; Schrader, 158 Iowa at 88, 139 N.W. at 161. In the context of the case at bar, there was

a pervasive constructional preference in the property law for vested future interests over contingent future interests and for early vesting over vesting at a later time; this means, in this context, that there is a constructional preference for there being no condition of survivorship of the life tenant.

Bergin & Haskell at 127 (emphasis added). Thus in 1916 in Lingo we stated:

[A]ll estates will be regarded as vested unless a condition precedent thereto is so clearly expressed that it cannot be regarded as vested without doing violence to the language of the will. To effectuate this rule, words of seeming condition are, if possible, to be construed as postponing the time of enjoyment. ...
The law presumes that words of postponement relate to the enjoyment of the remainder rather than the vesting thereof, and the intent to postpone the vesting of the estate must be clear and manifest.

Lingo, 174 Iowa at 467, 468, 156 N.W. at 404, 405 (emphasis added). For example, we held the mere grant of a life estate to one does not render a beneficiary’s interest contingent on the life tenant’s survival. See id.; see also darken v. Brown, 258 Iowa 18, 24,137 N.W.2d 376, 379-80 (1965) (holding where testator devised a life estate to his brother and at the death of his brother to his lawful heirs that the remainder vested, as there was nothing in the will to indicate to the contrary); Lytle v. Guilliams, 241 Iowa 523, 529, 41 N.W.2d 668, 671 (1950) (similar). Over time, however, this preference waned so that it was unsettled by the time Alfred wrote his will in 1972. See Henkel v. Auchstetter, 240 Iowa 1367, 1375, 39 N.W.2d 650, 654 (1949) (“Many of the reasons which generated the favoritism have long been nonexistent. " It is no longer an important rule of construction, and should not be”). Viewed in this historical context, Alfred’s use of the phrase “indefeasibly vested interest in fee” is evidence Alfred intended to forestall any implied inference that Richard’s interest was contingent upon Richard surviving his mother. Although the new Iowa Trust Code completely reverses the common law preference for vested interests and deems all interests contingent upon survival to the time of possession unless specifically stated otherwise, it is also clear the provisions of the trust must govern. In this case we are constrained to follow the intent of the testator, determined at the time the will is made and based upon the facts then existing, that specifically granted a vested remainder to Richard, which is a specific statement he need not survive Pearl. See Iowa Code § 633.1105; Arends, 311 N.W.2d at 689 n. 2.

4. Constitutional Claim

Because we find the Iowa Trust Code does not apply retroactively to divest Roger’s estate of a vested property right, we need not address Christa’s constitutional claim in this case.

IV. Disposition

Upon the death of his father, Richard had a vested remainder in the trust fund. He was therefore free to devise it to his wife Christa instead of his children. The district court must be reversed.

REVERSED.

      . As an aside, we point out Iowa’s anti-lapse statute is not involved in this appeal. Lapse only occurs when a beneficiary fails to survive the testator. Iowa Code § 633.273(1); cf. In re Estate of Cole, 549 N.W.2d 313, 314 n. 2 (Iowa Ct.App.1996). Nor does the statute apply, in any event, to a will such as this one, which expressly makes survival of the testator a condition of taking under the will. Iowa Code § 633.273(1); see Bankers Trust Co. v. Allen, 257 Iowa 938, 945, 135 N.W.2d 607, 611 (1965).

      . Likewise Richard was free to convey his vested remainder during his life or borrow against it, as many do. To hold otherwise would wreak havoc upon the settled expectations of many parties to such transactions.


author: /s/ Kathleen A. Blatz Chief Justice

text:
    Robert G. KING, Relator, v. WOODSMAN MIDWEST, INC., and Auto-Owners Insurance Group, Respondents, and Kenwood Chiropractic Arts, Intervenor.
    No. A04-2071.
    Supreme Court of Minnesota.
    March 29, 2005.
    Robert E. King, pro se appellant.
    Karen Ruth Swanton, Fitch, Johnson, Larson, Walsh, and Held, Minneapolis, for Auto-Owners Ins. Co., respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 30, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/ Kathleen A. Blatz Chief Justice