author: CADY, Justice.

text:
    Tim HANSEN, Appellee, v. SEABEE CORPORATION, Appellant.
    No. 02-2071.
    Supreme Court of Iowa.
    Oct. 6, 2004.
    Rehearing Denied Nov. 2, 2004.

      Margaret C. Callahan, Mark McCormick, James R. Swanger, and Michael R. Reck of Belin Lamson McCormick Zum-bach Flynn, P.C., Des Moines, for appellant.
    Thomas M. Werner, Des Moines, for appellee.
   CADY, Justice.

This appeal requires us to delve once more into the murky landscape that is the law of disability discrimination. A worker claimed he was disabled, and protected under the Americans with Disabilities Act (ADA), because his sore back limited his ability to lift and to perform some jobs he had done earlier in his life. The district court awarded Hansen damages on his claim under the ADA. For the reasons that follow, we reverse the district court judgment.

I. Background Facts and Proceedings

Tim Hansen left high school in 1974, obtained a general equivalency degree, and enlisted in the United States Army. He served in the army for two years and worked as a mechanic. After his honorable discharge, he worked for the next twenty years in the construction industry, building Astro buildings, painting water towers, and pouring concrete for new home construction.

Seabee Corporation hired Hansen on May 4, 1998. He was forty years old at the time. Seabee manufactures hydraulic cylinders used in heavy-duty equipment, and Hansen was trained to operate a straightening machine in the grinding department of its plant located in Hampton. He was a good employee who received favorable job evaluations, had no history of disciplinary problems, and received regular pay increases.

On April 12, 2000, Hansen noticed he had a sore back and some tingling and numbness in his leg. He surmised that his ailments were caused by bending over his straightening machine. The following day, he was examined by a doctor, who diagnosed him with a “right sacroiliac lesion with flexion and inflammation.” Hansen promptly informed Seabee of his injury.

After Hansen reported his injury, he felt “his supervisors’ attitudes towards him deteriorated.” On June 6, 2000, Hansen’s doctor recommended that Seabee elevate Hansen’s worktable six inches. Yet, instead of promptly raising the table, Seabee transferred Hansen to a light-duty position in the plant washing rods.

On June 27, 2000, Seabee informed Hansen he was being laid off, explaining that production was down. Hansen observed that no other employees were laid off that day and that Seabee even retained a less senior straightening machine operator. The next day, Seabee called Hansen and offered him a job in the honing department. Seabee told him he would keep the seniority he had accumulated as a straightener for purposes of benefits, as well as the wage he had previously earned. However, he was apparently required to start as the least senior employee in the honing department. Hansen accepted the offer and returned to work on June 29, 2000.

Hansen eventually filed a petition against Seabee in district court on February 2, 2001. He alleged disability discrimination in violation of the Iowa Civil Rights Act (ICRA), Iowa Code chapter 216 (2001), and retaliatory discharge. The lay-off on June 27 was the adverse employment action upon which Hansen’s disability discrimination claim was based. On April 17, he amended his petition to add a claim of disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (2000).

Hansen continued working at Seabee until October 5, 2001, when he was again laid off as part of a mass reduction in personnel. Hansen did not believe the layoff was discriminatory, but felt he would have acquired sufficient seniority to avoid the lay-off if he had not been laid off on June 27.

The district court, in its pretrial conference order, directed the parties to exchange witness and exhibit lists by September 15, 2002. On October 15, 2002, the trial date, Seabee still had not provided Hansen with its witness and exhibit lists. Hansen filed a “Motion to Exclude All Witnesses and Exhibits of Defendant.” The court granted the motion, and a jury-trial commenced. Hansen was the only witness who testified. Seabee’s evidence was limited to reading Hansen’s answers to various requests for admissions into the record. Seabee then moved for a directed verdict on all three claims.

The district court granted Seabee’s motion with respect to the retaliatory discharge claim. It concluded the claim was filed beyond a 180-day limitation contained in Hansen’s employment contract. The court also granted a directed verdict on the ICR A claim, finding that Hansen presented insufficient evidence regarding the existence of a disability. However, the district court denied the motion on the ADA claim. It found Hansen had introduced sufficient evidence to support a claim of disability discrimination under that statute.

Following the trial, the court entered judgment in favor of Hansen. In its written findings, the court observed:

Tim testified that he could still perform his straightener job which did not require heavy lifting as the rods or cylinders would be lifted onto the straightener by an overhead hoist but that his back limitations would not allow him to perform other heavy lifting or bending jobs such as concrete work or painting with which he has had considerable experience in the past. There was no evidence Tim was severely restricted with respect to household chore activities which he routinely did not perform. In his work comp claim, Tim made no application for temporary or permanent disability nor was he ever seen by an orthopedic surgeon with respect to his back and hip condition.

From this, the court concluded that Hansen

was disabled under the definition of the ADA by having a physical impairment that substantially limited his working as a major life activity by reason of his inability to perform the certain class of jobs for which he previously had experience, i.e. concrete construction and painting.

Further, the court found that Hansen’s June 27 lay-off constituted disability discrimination in violation of the ADA and awarded him (1) $17,106.66 in back pay, (2) $34,000 in front pay, (3) $50,000 in emotional distress damages, (4) $20,000 in punitive damages, and (5) attorney fees.

Seabee appealed. It alleged a variety of errors, including the proposition that Hansen failed to establish he was disabled under the ADA. Hansen did not cross-appeal or otherwise rely upon his state claims to support the district court judgment. Consequently, our review is limited to the federal ADA claim.

II. Standard of Review

When reviewing the judgment of a district court after a bench trial, “our review is for correction of errors at law.” Arnevik v. Univ. of Minn. Bd. of Regents, 642 N.W.2d 315, 318 (Iowa 2002) (citing Equity Control Assocs., Ltd. v. Root, 638 N.W.2d 664, 670 (Iowa 2001)); Iowa R.App. P. 6.4. “ ‘ “The trial court’s findings have the effect of a special verdict and are binding if supported by substantial evidence.” ’ ‘Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion.’ ” Arnevik, 642 N.W.2d at 318 (citations omitted). In contrast, the trial court’s legal conclusions are not binding, but we will construe them “broadly in favor of upholding the judgment.” Id. (citing Root, 638 N.W.2d at 670).

III. Disability Under the ADA

To establish a claim of disability discrimination, Hansen was required to prove (1) he had a disability under the ADA, (2) he was qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) he suffered an adverse employment action because of his disability. Kincaid v. City of Omaha, 378 F.3d 799, 804 (8th Cir.2004) (citing Christopher v. Adam’s Mark Hotels, 137 F.3d 1069, 1072 (8th Cir.1998)). Thus, our first inquiry is whether Hansen had a disability as defined by the ADA.

The ADA’s definition of disability contains three prongs. See 42 U.S.C. § 12102(2) (2000). An individual has a disability if he or she has “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) be[en] regarded as having such an impairment.” Id. Hansen claimed in the district court he was both “actually disabled” under the first prong and “regarded as disabled” under the third prong. The district court found only that Hansen was actually disabled due to a limitation on working. Nevertheless, we will consider both theories because “we may still affirm if there is an alternative ground, raised in the district court and urged on appeal, that can support the court’s decision.” Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811-12 (Iowa 2000) (citing Israel v. Farmers Mut. Ins. Ass’n., 339 N.W.2d 143, 146 (Iowa 1983)).

On appeal, Hansen claims he is disabled due to limitations on his ability to lift and work. With respect to lifting, the regarded as and actually disabled theories follow the same analysis because in either case, Hansen’s impairment must substantially limit him in lifting, either in reality or due to the attitudes of others. See 42 U.S.C. § 12102(2). Similarly, when based on an alleged substantial limitation on working, both theories require the same analysis because both require a showing that the plaintiff either actually is precluded from a broad class of jobs, Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450, 468 (1999), or that the defendant regards him or her as precluded from a broad class of jobs, Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 525, 119 S.Ct. 2133, 2139, 144 L.Ed.2d 484, 492 (1999). Accordingly, Hansen’s claims under the regarded as and actually disabled theories will be discussed together.

A. Physical Impairment

In order to have a disability under the ADA, an individual must have a physical or mental impairment, real or imagined. 42 U.S.C. § 12102(2); Sutton, 527 U.S. at 490, 119 S.Ct. at 2150, 144 L.Ed.2d at 467. This determination is the first step in ascertaining whether an individual is disabled. Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540, 553 (1998). The ADA does not define “physical or mental impairment,” but the Equal Employment Opportunity Commission (EEOC) has issued regulations and interpretive guidance that define several of the concepts used in the statute. See 29 C.F.R. pt. 1630 (2000). The EEOC regulations define a physical impairment as

[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

Id. § 1630.2(h)(1). The parties do not dispute that Hansen’s back injury constitutes a physical impairment.

B. Major Life Activity

The second step in establishing whether an individual has a disability under the ADA is to determine whether the impairment affects a “major life activity.” Bragdon, 524 U.S. at 631, 118 S.Ct. at 2202, 141 L.Ed.2d at 553. Again, the statute does not define this concept, but the EEOC regulations list several examples of major life activities: “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). The interpretive guidance adds “sitting, standing, lifting, [and] reaching” to this list and generally defines major life activities as “those basic activities that the average person in the general population can perform with little or no difficulty.” Id. pt. 1630 app. § 1630.2(i). In contrast, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court defined “major life activities” more narrowly as “those activities that are of central importance to daily life.” 534 U.S. at 197, 122 S.Ct. at 691, 151 L.Ed.2d at 631. Moreover, the Supreme Court has cautioned that the phrases “substantially limits” and “major life activities” “need to be interpreted strictly to create a demanding standard for qualifying as disabled.” Id.

Although the EEOC lists working as a major life activity, the Supreme Court has not decided this issue and has noted “that there may be some conceptual difficulty in defining ‘major life activities’ to include work.” Sutton, 527 U.S. at 492, 119 S.Ct. at 2151, 144 L.Ed.2d at 468.

Indeed, even the EEOC has expressed reluctance to define “major life activities” to include working and has suggested that working be viewed as a residual life activity, considered, as a last resort, only “[i]f an individual is not substantially limited with respect to any other major life activity.”

Id. (quoting 29 C.F.R. pt. 1630 app. § 1630.2(j)). Because we are construing only the federal statute, and no federal court has specifically held that working does not qualify as a major life activity under the ADA, we will follow the lead of the Supreme Court and assume without deciding that it does. See Toyota, 534 U.S. at 200, 122 S.Ct. at 692, 151 L.Ed.2d at 632 (“Because of the conceptual difficulties inherent in the argument that working could be a major life activity, we have been hesitant to hold as much, and we need not decide this difficult question today.”); Sutton, 527 U.S. at 492, 119 S.Ct. at 2151, 144 L.Ed.2d at 469 (“Assuming without deciding that working is a major life activity....”).

C. Substantially Limits

We next determine “whether the impairment substantially limit[s][a] major life activity.” Bragdon, 524 U.S. at 631, 118 S.Ct. at 2202, 141 L.Ed.2d at 553. According to the Supreme Court, “ ‘[substantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree.’ ” Toyota, 534 U.S. at 196, 122 S.Ct. at 691, 151 L.Ed.2d at 630 (quoting Webster’s Third New International Dictionary 2280 (1976)). “The word ‘substantial’ thus clearly precludes impairments that interfere in only a minor way with [a major life activity] from qualifying as disabilities.” Id. (citing Albertson’s, Inc., 527 U.S. at 565, 119 S.Ct. at 2162, 144 L.Ed.2d at 530).

The EEOC regulations advise:

The term substantially limits means:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

29 C.F.R. § 1630.2(j)(1). Further, the EEOC provides the following factors to consider in determining whether an individual’s impairment substantially limits a major life activity: “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” Id. § 1630.2(j)(2).

We first analyze whether there is substantial evidence that Hansen is substantially limited in any major life activity other than working. See 29 C.F.R. pt. 1630 app. § 1630.2(j) (“If an individual is substantially limited in any other major life activity, no determination should be made as to whether the individual is substantially limited in working.”). Hansen asserts he is substantially limited in the major life activity of lifting.

1. Substantially Limited in the Major Life Activity of Lifting

Although Hansen’s physician never imposed a lifting restriction on him, Hansen testified that he did not believe he could lift fifty pounds or more. When asked if he could lift twenty-five pounds on a regular basis, he testified that he “would really have to try it first. Otherwise Im guessing.” He further testified he would not have problems lifting ten pounds.

The federal courts have consistently held that a limitation on the amount of weight a person can lift does not substantially limit the major life activity of lifting. See, e.g., Brunko v. Mercy Hosp., 260 F.3d 939, 941-42 (8th Cir.2001) (“[A] general lifting restriction without more is insufficient to constitute a disability within the meaning of the ADA.”) (citing Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir.1998), cert. denied, 526 U.S. 1113, 119 S.Ct. 1758, 143 L.Ed.2d 790 (1999); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir.1997)); Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240-41 (10th Cir.2001) (holding that a forty-pound lifting restriction was not substantially limiting); Marinelli v. City of Erie, 216 F.3d 354, 364 (3d Cir.2000) (holding that a plaintiff who estimated he could lift no more than ten pounds was not “sufficiently different from the general population such that he is substantially limited in his ability to lift”); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2d Cir.1998) (holding that an inability to lift “very heavy objects” did not substantially limit a major life activity); Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir.1996) (“[W]e hold, as a matter of law, that a twenty-five pound lifting limitation — particularly when compared to an average person’s abilities — does not constitute a significant restriction on one’s ability to lift, work, or perform any other major life activity.”), cert. denied, Williams v. Avnet, Inc., 520 U.S. 1240, 117 S.Ct. 1844, 137 L.Ed.2d 1048 (1997), and abrogated on other grounds by Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir.1999); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir.1996) (holding that the need to avoid heavy lifting did not amount to a substantial limitation on the major life activity of lifting); see also Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 22 (1st Cir.2002) (“[Sjtrength varies widely throughout the population, and if a restriction on heavy lifting were considered a substantial limitation on a major life activity, then the ranks of the disabled would swell to include infants, the elderly, the weak, and the out-of-shape.”). Even when the plaintiffs impairment also restricts him or her in additional activities such as bending, courts have refused to find a disability. See, e.g., Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 685-86 (8th Cir.2003) (holding a plaintiff who could not bend more than eighty degrees or lift more than fifty pounds was not disabled); Nuzum v. Ozark Auto. Distribs., Inc., 320 F.Supp.2d 852, 868-70 (S.D.Iowa 2004) (holding a plaintiff who was “restricted from lifting more than 10 pounds constantly, more than 20 pounds frequently, and more than 40 pounds occasionally” and who was restricted in various activities involving use of his arm was not substantially limited in any major life activity); Wordekemper v. W. Iowa Homes & Equip., Inc., 262 F.Supp.2d 973, 983 (N.D.Iowa 2003) (holding a plaintiff with a lifting restriction and a restriction on bending was not disabled).

Moreover, after Toyota, it is clear that in order “to be substantially limited in [lifting], an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most peoples daily lives.” 534 U.S. at 198, 122 S.Ct. at 691, 151 L.Ed.2d at 631; see Mack v. Great Dane Trailers, 308 F.3d 776, 781 (7th Cir.2002) (“Toyota’s point was that an inability to perform occupation-specific tasks does not necessarily show an inability to perform the central functions of daily life, and that analysis applies equally to [lifting restrictions]. An inability to lift heavy objects may disqualify a person from particular jobs but does not necessarily interfere with the central functions of daily life.” (Citations omitted.)); see also Wood, 339 F.3d at 685-86 (holding, when the plaintiff could “perform household tasks such as laundry, washing dishes, and taking out trash,” that his fifty-pound lifting restriction and inability to bend more than eighty degrees were “insufficient to sustain an ADA claim given the high bar set by Williams”); Philip v. Ford Motor Co., 328 F.3d 1020, 1025 (8th Cir.2003) (applying Toyota to “the major life activities of gripping, reaching, lifting, standing, sitting and walking”; holding that the plaintiff was not substantially limited because he “cited no examples of how the limitations impacted tasks central to most peoples daily lives”).

There is no evidence in the record that Hansen’s impairment impacted lifting tasks central to most people’s daily lives e.g., “household chores, bathing, and brushing one’s teeth.” Toyota, 534 U.S. at 202, 122 S.Ct. at 693, 151 L.Ed.2d at 634. In fact, the district court specifically noted: “There was no evidence Tim was severely restricted with respect to household chore activities.... ” Thus, we conclude the court’s ruling that Hansen was disabled cannot be upheld on the basis that he was substantially limited in lifting.

2. Substantially Limited in the Major Life Activity of Working

Reflecting the uncertainty as to whether working even qualifies as a major life activity, the Supreme Court has held “[w]hen the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Sutton, 527 U.S. at 491, 119 S.Ct. at 2150, 144 L.Ed.2d at 468. Under the EEOC’s ADA regulations, substantially limited in the major life activity of working

means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

29 C.F.R. § 1630.2(j)(3)(i). The regulations provide additional factors to consider in determining whether an individual is substantially limited in working:

[1] The geographical area to which the individual has reasonable access;
[2] The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
[3] The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).

Id. § 1630.2(j)(3)(ii).

To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individuals skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.

Sutton, 527 U.S. at 492, 119 S.Ct. at 2151, 144 L.Ed.2d at 468.

The evidence to support the conclusion by the district court that Hansen was substantially limited in working consisted solely of his own testimony that he felt he could not do work that involved extensive bending or heavy lifting. There was no medical evidence regarding Hansen’s ability to lift and bend, and Hansen himself was unsure as to how much he could lift and which jobs he could do.

A “class” of jobs connotes “a group, set, or kind [of jobs] marked by a common attribute.” Webster’s Third New International Dictionary 416 (2002); see also 29 C.F.R. § 1630.2(j)(2)(B) (defining a “class of jobs” as “jobs utilizing similar training, knowledge, skills or abilities” to “[t]he job from which the individual has been disqualified because of an impairment” “within that geographical area”). The present record leaves the class of jobs in which Hansen worked at Seabee unclear. While Hansen testified about the process of operating a straightening machine, the record is devoid of any evidence regarding the attributes of the job, such as required training, knowledge, skills, or abilities. Moreover, although Hansen claimed he could not work as a roofer if he had to carry shingles, could not paint water towers, would not be able to perform in the concrete trade, and could not work on an assembly line if it required continuously lifting “real heavy material,” there is absolutely no evidence in the record as to the attributes or availability of any of these positions in Hansen’s geographical area. Thus, there is no evidence that would support a finding that Hansen is “unable to work in a broad class of jobs,” Sutton, 527 U.S. at 491, 119 S.Ct. at 2150, 144 L.Ed.2d at 468, let alone that these positions constitute a class of jobs.

The ADA requires a plaintiff in [Hansen’s] position to produce some evidence of the number and types of jobs in the local employment market in order to show he is disqualified from a substantial class of jobs; that is, the total number of such jobs that remain available to the plaintiff in such a class or range in the relevant labor market must be sufficiently low that he is effectively precluded from working in the class or range.

Duncan v. Wash. Metro. Transit Auth., 240 F.3d 1110, 1115-16 (D.C. Cir.2001) (en banc), cert. denied, 534 U.S. 818, 122 S.Ct. 49, 151 L.Ed.2d 20 (2001) (citing Sutton, 527 U.S. at 491-92, 119 S.Ct. at 2151, 144 L.Ed.2d at 468); see also Gelabertt-Ladenheim v. Am. Airlines, Inc., 252 F.3d 54, 62 (1st Cir.2001) (holding that the plaintiff failed to establish she was disabled when she “produced only generic evidence of her work restrictions” and “offered no more than conclusory statements” “as to the number and types of jobs she can or cannot perform in the relevant labor market”); EEOC v. Rockwell Int’l Corp., 243 F.3d 1012, 1018 (7th Cir.2001) (holding that some “evidence of the demographics of the relevant labor market” is required).

While we do not hold that expert vocational testimony is always required to establish a substantial limitation on working, the record in this case is insufficient to support the conclusion that Hansen was unable to perform a broad class of jobs. The district court held that Hansen was disabled because he was unable to perform the “class of jobs” of “concrete construction and [water tower] painting.” However, there is no evidence that these positions constitute a class of jobs under the ADA. See Philip, 828 F.3d at 1024 (“Inability to perform one particular job does not constitute a substantial limitation on working. Instead, a plaintiff must show that because of his impairment he has suffered a significant reduction in meaningful employment opportunities.” (Citations omitted.)); accord Brunko, 260 F.3d at 942 (holding that one who is precluded from working a narrow range of jobs is not disabled). By failing to present evidence regarding the relevant class of jobs, Hansen failed to prove either that he was substantially limited in working or that Seabee regarded him is substantially limited in working. See Sutton, 527 U.S. at 491-93, 119 S.Ct. at 2151-52, 144 L.Ed.2d at 468-69 (holding that the plaintiffs failed to prove they were regarded as substantially limited in working because they failed to show “they [we]re unable to work in a broad class of jobs”); Rockwell Intl. Corp., 243 F.3d at 1018 (holding that the EEOCs regarded-as-disabled theory failed “with no evidence of the demographics of the relevant labor market”); Duncan, 240 F.3d at 1115 (vacating jury verdict on the plaintiffs actually disabled claim because he failed “to produce some evidence of the number and types of jobs in the local employment market”). Accordingly, the decision of the district court that Hansen was disabled must be reversed.

IV. Conclusion

Hansen produced insufficient evidence to establish that he was disabled under the ADA. Consequently, his disability discrimination claim fails. See Kincaid, 378 F.3d at 804. It is unnecessary to consider the other issues raised by appellants.

REVERSED.

      . Appellate counsel did not represent Seabee at trial. Seabee was represented by different counsel in district court.

      . There is some doubt as to whether these regulations are valid and entitled to deference. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194, 122 S.Ct. 681, 689, 151 L.Ed.2d 615, 629 (2002) (noting the uncertainty of "[t]he persuasive authority of the EEOC regulations” and “assum[ing] without deciding that they are [valid]”); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 563 n. 10, 119 S.Ct. 2162, 2167 n. 10, 144 L.Ed.2d 518, 529 n. 10 (1999) ("[W]e assume, without deciding, that such regulations are valid, and we have no occasion to decide what level of deference, if any, they are due.”); Murphy, 527 U.S. at 523, 119 S.Ct. at 2138, 144 L.Ed.2d at 491 ("[W]e assume, arguendo, that the Equal Employment Opportunity Commission (EEOC) regulations regarding the disability determination are valid.”); Sutton, 527 U.S. at 479, 119 S.Ct. at 2145, 144 L.Ed.2d at 460 ("[N]o agency has been delegated authority to interpret the term 'disability.' ”). Because we have relied on the EEOC regulations in construing the ADA before the Supreme Court expressed these doubts, see Bearshield v. John Morrell & Co., 570 N.W.2d 915 (1997), to the extent we find them consistent with the statute, we will continue to do so until the Supreme Court decides otherwise.

      . We note that the interpretive guidance is entitled to even less deference than the regulations, assuming any deference is due at all. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 899 n. 4 (10th Cir.) ("[W]hile the EEOC's Interpretive Guidance may be entitled to some consideration in our analysis, it does not carry the force of law and is not entitled to any special deference under Chevron.”), aff'd, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Cf. Ass’ns Working for Aurora's Residential Env’t v. Colo. Dep’t of Transp., 153 F.3d 1122, 1127 n. 4 (10th Cir.1998) (citations omitted).

      . One federal circuit judge aptly described these conceptual difficulties:
      [I]f a person claims to be excluded from work because of his impairment, it is circular for him to answer when asked the nature of his impairment "exclusion from work.”
      ... When "working” is used in this way, the existence of a disability will necessarily turn on factors other than the individual's physical characteristics or medical condition. To illustrate, suppose there is an economic downturn and unemployment is high. Then more people will be found to be disabled as compared with a period when the gross domestic product is growing and unemployment is low. Why? Because the less likely it is that a person can find work the more likely that he is substantially limited in the major life activity of working-that in other words he suffers from a disability. One must wonder whether people considered disabled in a poor economy can become not disabled if the economy turns around and more jobs become available. One must wonder as well how this can be squared with the ADA’s express purpose of supplying "clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.”

        Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1118 (D.C.Cir.2001) (Randolph, J., concurring) (citations omitted).


source: Caselaw Access Project

author: STREIT, Justice. WIGGINS, J.

license: Public Domain

text:
    John C. FOLEY, Individually, and Interim Holdings, L.L.C., Plaintiffs, v. ARGOSY GAMING COMPANY, Defendant.
    No. 03-1793.
    Supreme Court of Iowa.
    Oct. 6, 2004.

      Maurice B. Nieland and Matthew T.E. Early of Rawlings, Nieland, Probasco, Kil-linger, Ellwanger, Jacobs & Mohrhauser,
    LLP, Sioux City, and David B. Johnson and Emily A. Mily of Sidley Austin Brown & Wood LLP, Chicago, Illinois; for defendant.
    Theodore Boecker and James D. Sher-rets of Sherrets & Boecker, L.L.C., Omaha, Nebraska, for plaintiffs.
   STREIT, Justice.

The United States District Court for the Northern District of Iowa has certified four questions to us concerning the law of malicious prosecution. After summarizing the facts and prior proceedings of the underlying dispute, we answer the federal court’s questions.

I. Facts and Prior Proceedings

We restrict our discussion to the facts provided with the certified questions. Willow Tree Invs., Inc. v. Wilhelm, 465 N.W.2d 849, 849 (Iowa 1991); Foster v. City of Council Bluffs, 456 N.W.2d 1, 2 (Iowa 1990); cf. Iowa Code § 684A.3 (2003). In 2001, John Foley and Interim Holdings (Foley) sued Argosy Gaming Company in the Iowa District Court for Woodbury County for malicious prosecution. Foley claimed Argosy had wrongfully sued him in federal court in Illinois for alleged false statements Foley had made about Argosy. Argosy had voluntarily dismissed the Illinois suit before it came to trial.

Foley claimed that, as a result of the Illinois suit, Interim’s insurance carrier declined to renew its policies and Foley lost financing on a real estate deal in Sioux City. Foley also maintained the lawsuit caused him stress, exacerbating preexisting neck and back pain. Foley did not see a doctor, however; instead he resorted to some painkillers he owned.

On Argosy’s motion the case was removed to federal court based on that court’s diversity jurisdiction. See 28 U.S.C. § 1441. Argosy moved for summary judgment. See Fed.R.Civ.P. 56. Argosy argued Foley’s complaint failed to show he suffered a “special injury.” To prove malicious prosecution in Iowa, a plaintiff must show arrest of person, seizure of property, or other special injury. See, e.g., Whalen v. Connelly, 621 N.W.2d 681, 688 (Iowa 2000). We have defined special injury generally as an “injury that would not ordinarily result in all similar cases involving such a claim.” Id. (citation omitted).

Instead of ruling, the federal court on its own motion stayed the federal proceedings and certified four questions to us. The four questions are:

1. Does the requirement of “special injury” to state a claim for a malicious prosecution action still remain the law of Iowa?
2. Is the non-renewal of insurance a “special injury” under Iowa law?
3. Under the facts of this case, is the loss of financing, or interference with financing, a “special injury” under Iowa law?
4. Does Plaintiffs stress, accompanied by neck and back pain, constitute “special injury” under the facts of the case?

Pursuant to our certification statute and in the exercise of our discretion, we now choose to answer these four certified questions. See Iowa Code § 684A.1 (stating we may answer a certified question where (1) it was certified by a proper court; (2) is a question of Iowa law; (3) “may be determinative of the cause ... pending in the certifying court”; and (4) it appears to the certifying court that there is no controlling Iowa precedent). But see Eley v. Pizza Hut, Inc., 500 N.W.2d 61, 63-64 (Iowa 1993) (recognizing discretion and declining to answer propounded questions because the statement of facts accompanying the certification were not specific enough).

II. The Certified Questions

A. “Does the requirement of ‘special injury’ to state a claim for a malicious prosecution action still remain the law of Iowa?”

Yes. As the federal district court recognized in its order of certification,

In this jurisdiction the rule always has been no cause of action arises from malicious prosecution unless there has been either an arrest, seizure of property, or a special injury sustained which would not necessarily result in all suits prosecuted to recover for like causes of action.

Brody v. Ruby, 267 N.W.2d 902, 904 (Iowa 1978). We first recognized this rule in 1884. Wetmore v. Mellinger, 64 Iowa 741, 744, 18 N.W. 870, 871 (1884). We have required plaintiffs in malicious prosecution cases to prove such special damages ever since. See, e.g., Whalen, 621 N.W.2d at 687-88; Employers Mut. Cas. Co. v. Cedar Rapids Television Co., 552 N.W.2d 639, 643 (Iowa 1996); Royce v. Hoening, 423 N.W.2d 198, 201 (Iowa 1988); Brody, 267 N.W.2d at 904; Aalfs v. Aalfs, 246 Iowa 158, 160-68, 66 N.W.2d 121, 122-27 (1954); White v. Int’l Text-Book Co., 156 Iowa 210, 219, 136 N.W. 121, 125 (1912); Dorr Cattle Co. v. Des Moines Nat’l Bank, 127 Iowa 153, 158, 98 N.W. 918, 920-21 (1904); Smith v. Hintrager, 67 Iowa 109, 109, 24 N.W. 744, 744 (1885); cf. Asay v. Hallmark Cards, Inc., 594 F.2d 692, 695 n. 1 (8th Cir.1979) (“Iowa clearly requires special damages for malicious prosecution actions.”); Hanson v. Hancock Mem’l Hosp., 938 F.Supp. 1419, 1447 (N.D.Iowa 1996); Bickel v. Mackie, 447 F.Supp. 1376, 1379 (N.D.Iowa 1978). See generally Mark S. Cady, Curbing Litigation Abuse and Misuse: A Judicial Approach, 36 Drake L.Rev. 483, 487 (1987) (acknowledging and criticizing special-injury requirement for tort of malicious prosecution). On many of these occasions — most recently less than four years ago in Whalen — we have explicitly declined to abandon the special-injury rule notwithstanding a stated awareness that other authority does not require it. See, e.g., Whalen, 621 N.W.2d at 688 (“We are aware other authority no longer requires this element.”) (citing, in part, Restatement (Second) of Torts §§ 674 cmt. e, at 455, 681 cmt. d, at 470 (1977)); Brody, 267 N.W.2d at 905 (noting slight majority of jurisdictions did not impose the special-injury requirement but finding “no persuasive reason” to change course); Aalfs, 246 Iowa at 160-62, 66 N.W.2d at 122-24 (declining invitation to overrule Wetmore even though there was a line of authority holding otherwise); see also Royce, 423 N.W.2d at 201-02 (declining invitation to abandon “outdated” special-injury rule).

Following in the footsteps of those in preceding generations, Foley argues the special-injury rule is outdated and now should be abandoned. As phrased, the certified question expressly permits Foley to run this well-trod course. In our judicial system, of course, one may always question whether a precedent is controlling by asking whether it remains the law; it is manifest that we are free to overrule precedents when circumstances warrant. We do not “atavistieally cling ... to distinctions which can have no practical significance but to interpose ancient formalities in the path of justice.” Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter, Address Before the N.Y. City Bar Ass’n (Nov. 17, 1921), in 3 Lectures on Legal Topics 89, 93 (1926) [hereinafter Hand Lecture] (quoted in Engel v. C.B.S., Inc., 93 N.Y.2d 195, 689 N.Y.S.2d 411, 711 N.E.2d 626, 630 (1999)); see, e.g., Barreca v. Nicholas, 683 N.W.2d 111, 121-23 (Iowa 2004) (abandoning improper-purpose definition of actual malice).

Once again, however, we decline to abandon the special-injury rule. In the case at bar, Whalen clearly controls and nothing has subsequently happened' — -in Iowa or in other jurisdictions — to call into doubt the continued validity of our unanimous holding in that case. Cf. Cameron v. Hardisty, 407 N.W.2d 595, 598 (Iowa 1987) (declining to overrule prior cases in response to certified question where “no reason, factually or legally, to depart from the rule expressed in our prior decisions”). “A substantial number of courts ... [still] permit the action for wrongful civil proceedings only when the plaintiff has suffered ‘special injury’ or ‘special grievance’ as a result of the wrongful litigation.” 2 Dan B. Dobbs, The Law of Torts § 437, at 1232 (2001 & Supp.2004); see, e.g., Engel, 93 N.Y.2d 195, 689 N.Y.S.2d 411, 711 N.E.2d at 629-31 (in answering certified question, “[dispelling rumors of the special injury requirement’s demise” in New York; noting that special-injury rule is “[n]o mere ancient formalism” but rather “its justifications in American jurisprudence have continuing viability”). We also note that generally reconsideration of stare decisis is not a matter for us to decide via certified question. See, e.g., Cavalli v. McMahon, 174 Conn. 212, 384 A.2d 374, 376-77 (1978); Cowan v. Ford Motor Co., 437 So.2d 46, 47 (Miss.1983); Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 764, 700 N.E.2d 303, 309 (1998); W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 811 P.2d 627, 631 (1991); Concerned Dunes W. Residents, Inc. v. Georgia-Pacific Corp., 349 S.C. 251, 562 S.E.2d 633, 639 (2002); cf. Tarr v. Manchester Ins. Corp., 544 F.2d 14, 15 (1st Cir.1976) (“The purpose of certification is to ascertain what the state law is, not, when the state court has already said what it is, to afford a party an opportunity to persuade the court to say something else.”)- But see Hartford-Carlisle Sav. Bank v. Shivers, 566 N.W.2d 877, 879 (Iowa 1997) (where recent case had shed doubt upon “the absolute bar rule,” answer to certified question necessitated).

Having answered the fust certified question in the affirmative, we now turn to the three remaining questions. For the sake of simplicity, we rephrase and combine them into a single question. Shaw v. Agri-Mark, Inc., 663 A.2d 464, 465 n. 1 (Del.1995).

B. “Does the non-renewal of insurance, loss of financing, or stress constitute ‘special injury’ under Iowa law?”

No. In applying the special-injury rule,

we have distinguished between the ordinary trouble and expense which regularly attend litigation (whether legitimately or maliciously prosecuted) and the unusual hardship arising from arrest, seizure of property or other special circumstances.

Royce, 423 N.W.2d at 201. On the facts of this case, non-renewal of insurance, loss of financing, and stress are more appropriately characterized as part and parcel of the ordinary trouble and expense of litigation. Not surprisingly, Foley cites no cases to the contrary; a survey of our precedents and those of other jurisdictions employing the special-injury rule foreclose Foley’s argument.

Those who must defend against lawsuits often incur significant costs. These costs, which regularly attend all forms of litigation, may include the non-renewal of insurance or incidental damage to business endeavors. These costs are therefore not “special injuries” for purposes of proving malicious prosecution, but rather simply part and parcel of the ordinary trouble and expense of litigation. See, e.g., Whalen, 621 N.W.2d at 684, 689 (litigation costs in excess of one million dollars not a “special injury”); Royce, 423 N.W.2d at 201 (plaintiffs’ “inconvenience and expenses demonstrate no greater hardship than that suffered by any litigant in similar proceedings”); Aalfs, 246 Iowa at 159-60, 66 N.W.2d at 122-23 (failure to obtain credit from bank, slowdown in manufacturing, and loss of profit not special injuries).

Aalfs is perhaps most on point. In Aalfs a son claimed his father had wrongfully sued him for rescission of contract. 246 Iowa at 159, 66 N.W.2d at 122. As a result, the son alleged he suffered, inter alia, stress, anxiety, and loss of credit for his manufacturing operations. Id. at 159-60, 66 N.W.2d at 122. In determining whether the son had met the special-damages requirement, we remarked that “serious consequences to the defendant in such an action are not difficult to visualize”; such a lawsuit “will likely result in damage to the credit of the defendant, and if he be engaged in business, may well do it serious injury.” Id. at 168, 66 N.W.2d at 127. That said, we concluded the son’s alleged injuries “inhere[d] in the very nature of the action” and therefore were not “special injuries” for the purposes of malicious prosecution. Id.

Likewise, on the facts of this case we do not think it extraordinary that a defendant engaged in business, facing a multi-count complaint — alleging, among other things, defamation — would suffer an incidental loss of financing, or that one’s insurance carrier, charged with defending against the suit, might demand higher premiums or not want to sign up for insurance again altogether. Cf. Tarver v. Wills, 174 Ga.App. 550, 330 S.E.2d 896, 899 (1985) (increase in insurance premiums an “unavoidable incident” of a physician’s defense of a medical malpractice case); Equity Assocs., Inc. v. Vill. of Northbrook, 171 Ill.App.3d 115, 121 Ill.Dec. 71, 524 N.E.2d 1119, 1122 (1988) (“[l]oss of potential institutional lending commitments” not special injury); Moiel v. Sandlin, 571 S.W.2d 567, 571 (Tex.Civ.App.1978) (likening increase in insurance premiums to attorney fees and other common and incidental costs of litigation). See generally 52 Am.Jur.2d Malicious Prosecution § 84 (2000) (“[E]xpo-sure to increased insurance premiums as a result of the underlying litigation do not constitute a special injury.”)

Nor is defending oneself against a lawsuit a pleasurable experience. Learned Hand once remarked, “I must say that, as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death.” Hand Lecture at 105. The attendant stress and anxiety are thus also part and parcel of the ordinary trouble of the process, and plainly do not constitute special injury. Royce, 423 N.W.2d at 201 (plaintiffs “claims of reputational harm, humiliation, anxiety ... demonstrate no greater hardship than that suffered by any litigant in similar proceedings”); Brody, 267 N.W.2d at 90S (mental distress not a special injury); Aalfs, 246 Iowa at 159-60, 168, 66 N.W.2d at 122, 127 (“great mental pain, shame, anguish and distress”); cf. Alexander v. Alexander, 152 N.C.App. 169, 567 S.E.2d 211, 213-14 (2002) (“[Sjtress, strain and worry are experienced by all litigants to one degree or another; hence, allegations of this kind ... would not constitute special damage.”).

III. Conclusion

We decline to abandon the special-damages requirement for malicious prosecution cases. Special damages must be proved and do not include non-renewal of insurance, loss of financing, or stress.

The clerk of the supreme court is directed to send a copy of this opinion under the seal of the court to the certifying court and the parties. Iowa Code § 684A.7. The clerk shall also prepare and transmit a bill of costs to the clerk of the certifying court. Iowa R.App. P. 6.459. The clerk of the certifying court shall be responsible for apportioning and collecting costs. Id.

CERTIFIED QUESTIONS ANSWERED.

All justices concur except WIGGINS, J., who concurs specially, and CADY, J., who takes no part.

WIGGINS, J.

(concurring specially).

I concur in the result, but write separately to address the reason why I concur. I do not believe it is necessary for us to decide whether we should retain the special-injury rule in order to answer the first certified question. I do not think we should be reconsidering the special-injury rule via certified question. I agree “[t]he purpose of certification is to ascertain what the state law is, not, when the state court has already said what it is, to afford a party an opportunity to persuade the court to say something else.” Tarr v. Manchester Ins. Corp., 544 F.2d 14, 15 (1st Cir.1976). I would not rule out reexamining the special-injury rule after reviewing a fully developed record of a case decided by a lower court.

      . The record before us is unnecessarily voluminous. The parties have filed a two-volume appendix that contains over 1000 pages and apparently cost over $3500 to produce. It includes a whole host of information irrelevant to our proposed task — the answering of four certified questions of law. See Wright v. Brooke Group Ltd., 652 N.W.2d 159, 170 n. 1 (2002) (declining to answer questions of fact or questions which involved factual determinations beyond the scope of a certified-question proceeding).

      . Foley fails to cite a single case in support of its position on questions three and four, and only one case — a case not directly on point — ■ is cited for its argument concerning question two. (Other cases are cited in Foley's table of authorities but we cannot find them on the pages listed.) Much of Foley’s efforts appear better directed at disputing factual matters in preparation for a federal summary judgment hearing under Rule 56, as opposed to our charge, which is to answer questions of Iowa law. In our discretion, however, we decline to deem Foley's argument on these three questions waived in this case. The certifying court thought these three questions were worthy of certification, and a significant amount of time and expense has been spent on seeking our answer.


author: TERNUS, Justice. LARSON, Justice

text:
    STATE of Iowa, Appellant, v. Rosemary E. BAKER, Appellee.
    No. 03-1465.
    Supreme Court of Iowa.
    Oct. 6, 2004.

      Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Gina Vosburg, County Attorney, and Eric Simonson, Assistant County Attorney, for appellant.
    Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellee.
   TERNUS, Justice.

The State charged the defendant, Rosemary Baker, with the offense of tampering with a juror in violation of Iowa Code section 720.4 (2003). The district court dismissed the charge, ruling the statute was unconstitutional as applied to the defendant because it infringed her First Amendment right to free speech. We reverse and remand for further proceedings.

I. Background Facts and Proceedings.

The parties stipulated to the facts underlying this appeal. Baker was charged with violating section 720.4 based on a telephone conversation Baker had with Debra Krause, who had recently served as a juror in a criminal proceeding against one Greg Schoo, a friend of Baker. On May 8, 2003, the jury convicted Schoo of first-degree burglary, which carries a mandatory twenty-five-year prison sentence.

The day after the verdict was rendered Krause received a phone call that began with the caller’s question, “Is this Deb?” Because Krause and Baker had previously worked together, Krause recognized Baker’s voice. In addition, Krause’s caller ID confirmed the call was made from Baker’s telephone. When Krause responded that yes, she was Deb, the caller stated, “This is Rose.” The caller then asked Krause “if [she] knew that [she] gave him 25 years.” Krause understood Baker was referring to Schoo. Krause told Baker she did not know what sentence Schoo had received. Baker then stated: “Well, I just thought you should know you gave him 25 years,” and hung up the phone.

Krause notified law enforcement of Baker’s call. Although Krause did not feel threatened by Baker, she was bothered and upset by the call and Baker’s tone of voice. According to Krause, she “was in disbelief that [Baker] had called [her] to say that.” Krause said she “did not beg and plead to be one of the jurors,” and would rather not have been picked, but it was “something [she] had to do — whether [she] wanted to or not!”

Baker was charged with tampering with a juror in violation of Iowa Code section 720.4, which provides in relevant part: “A person who ... in retaliation for anything lawfully done by any witness or juror in any case, harasses such witness or juror, commits an aggravated misdemeanor.” Iowa Code § 720.4. Prior to trial, Baker filed an application for adjudication of law points, claiming section 720.4 was unconstitutional as applied to her in this case. She argued that punishing her conduct violated her First Amendment right to freedom of speech. See U.S. Const, amend. I. In addition, Baker contended section 720.4 was unconstitutional because the statute did not give fair notice that it prohibited harassment of an individual no longer sitting on a jury, rendering the statute vague in violation of the Due Process Clause. See id. amends. V, XIV.

At the hearing on Baker’s motion, the parties stipulated to several facts in addition to those set out above. They agreed that Baker was one of several individuals who believed the mandatory minimum sentencing requirement as applied to Schoo was inappropriate. This group contacted news media, the Iowa Attorney General, Internet sites, and other entities to express their disapproval of the sentencing scheme. The parties stipulated Baker would testify she contacted Krause to determine whether Krause was aware of the mandatory sentencing law under which Schoo would receive a twenty-five-year sentence, and Baker wanted to know what Krause thought of that.

In its ruling on Baker’s motion, the court determined Baker had not met her burden to prove the statute was unconstitutionally vague. The court did conclude, however, that the statute was unconstitutional as applied to the defendant because Baker’s comments to Krause were not threats or fighting words, and Baker had a legitimate purpose in contacting Krause; therefore, Baker’s First Amendment rights were violated. The court dismissed the charge against Baker.

The State then filed this appeal, claiming the district court erred in ruling the statute as applied in this case infringed Baker’s First Amendment rights. The defendant urges this court to affirm the district court’s ruling on First Amendment grounds or, alternatively, on the ground that the statute is unconstitutionally vague.

II. Principles Governing Our Review.

We review the district court’s ruling on these constitutional issues de novo. See State v. Keene, 629 N.W.2d 360, 363 (Iowa 2001). In doing so, “[w]e presume the statute is constitutional and give it any reasonable construction necessary to uphold it.” State v. Hunter, 550 N.W.2d 460, 463 (Iowa 1996), overruled on other grounds by State v. Robinson, 618 N.W.2d 306, 312 (Iowa 2000). Baker, as the party challenging the statute, must establish its unconstitutionality beyond a reasonable doubt. Keene, 629 N.W.2d at 365. This burden is met only by refuting “every reasonable basis upon which the statute could be found constitutional.” Id.

III. First Amendment Claim.

The district court concluded section 720.4 violated the First Amendment because it criminalized speech that was not a threat or fighting words, and that had a legitimate purpose. In considering whether this ruling is correct, we must keep in mind the conduct that is prohibited by section 720.4. That statute makes it a crime to harass a juror in retaliation for anything lawfully done by the juror in a case. See Iowa Code § 720.4. This court has held that the term “harass” as used in section 720.4 means “harassment” as defined in Iowa Code section 708.7(1). State v. Reynolds, 670 N.W.2d 405, 410 (Iowa 2003). The portion of section 708.7(1) pertinent to this case states:

A person commits harassment when, ioith intent to intimidate, annoy, or alarm another person, the person ... [cjommunicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose, and in a manner likely to cause the other person annoyance or harm.

Iowa Code § 708.7(l)(a)(l) (emphasis added). Thus, the crime of tampering with a juror is a specific form of harassment: in this case, telephone communication with a juror in retaliation for anything lawfully done by the juror in a case with intent to intimidate, annoy, or alarm the juror and in a manner likely to cause the juror annoyance or harm.

A review of the elements of the offense with which the State charged Baker reveals the first flaw in the district court’s analysis. Contrary to the district court’s conclusion, the statute does not prohibit speech that has a legitimate purpose. It only reaches communication that not only is “without legitimate purpose” and intended to “intimidate, annoy or alarm” the juror, but is done to retaliate for a lawful act of the juror in a court case. Id. Here there was clearly a jury question under the stipulated facts whether Baker contacted Krause to gather factual information about Krause’s knowledge and views of the sentencing system, or whether the contact was intended to intimidate or alarm Krause in retaliation for her role in convicting Schoo. The district court should not have resolved this factual dispute in ruling on the constitutional issue, since the constitutional challenge to the statute was raised in a motion to adjudicate law points. Motions to adjudicate law points may not be used to resolve factual disputes, only legal issues. See State v. Marti, 290 N.W.2d 570, 579 (Iowa 1980).

The real question here is whether the State can, consistently with the First Amendment, punish Baker for conduct that, while not consisting of threats or fighting words, could be found by a jury to be purposefully intimidating or alarming to a juror in retaliation for the juror’s lawful participation in the jury process. We conclude the statute does not violate the First Amendment for two reasons: (1) harassing conduct is not protected by the First Amendment; and (2) to the extent there is infringement on protected speech, such infringement is justified by the state interests at stake.

Under section 720.4, the criminality of one’s conduct turns on whether the defendant acts (1) without legitimate purpose, (2) with an intent to intimidate, annoy, or alarm the juror, and (3) in retaliation for the juror’s performance of his or her civic duty as a juror on a case. Such conduct, even when it includes speech, is not protected by the First Amendment. See State v. Evans, 672 N.W.2d 328, 330 (Iowa 2003) (rejecting First Amendment challenge to section 708.7(1)(6) (prohibiting harassment by personal contact “without legitimate purpose” and “with the intent to threaten, intimidate, or alarm”), holding defendant’s First Amendment rights do not include a right to exercise his free speech rights “in a manner that is intended to threaten, intimidate, or alarm the subject”); accord, Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir.1988) (“ ‘Prohibiting harassment is not prohibiting speech, because harassment is not ... protected speech. Harassment is not communication, although it may take the form of speech.’ ” (Citation omitted.)); State v. Brown, 207 Ariz. 231, 85 P.3d 109, 111, 114 (Ct.App.2004) (holding harassment statute that required an intent to harass— “cause a reasonable person to be seriously alarmed, annoyed or harassed” — does not regulate “constitutionally protected speech”); State v. Thorne, 175 W.Va. 452, 333 S.E.2d 817, 819 (1985) (holding statute that prohibited “repeated telephone calls ... with intent to harass” did not violate the First Amendment); cf. Turney v. State, 936 P.2d 533, 540-41 (Alaska 1997) (holding statute criminalizing speech intended to influence a juror did not violate the First Amendment).

Other courts have rejected First Amendment challenges to rules or statutes that prohibit any contact with jurors. In Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425 (Tex.1998), the Supreme Court of Texas noted “it is well established in the law that post-verdict speech can ... pose a sufficiently significant threat to the fairness of jury trials to justify curtailing the would-be speakers’ constitutional interests.” 980 S.W.2d at 432; accord Haeberle v. Tex. Int’l Airlines, 739 F.2d 1019, 1021-22 (5th Cir.1984). The fairness of jury trials is threatened by contact with jurors, particularly harassing contact, because citizens who are aware of abusive communications with other jurors will be discouraged from jury service or their impartiality as jurors may be compromised by the fear of retaliation. Benton, 980 S.W.2d at 433-34. It has been held, therefore, that states’ legitimate interest in protecting the jury system justifies forbidding juror harassment. Id. at 432-33 (citing cases); cf. United States v. Brown, 250 F.3d 907, 918 (5th Cir.2001) (holding right of accused to trial by impartial jury justified post-verdict protection of jurors from harassment and did not violate First Amendment); United States v. Radonjich, 1 F.3d 117, 120 (2d Cir.1993) (finding no constitutional error in limiting defendant’s post-verdict access to jurors, observing “jurors have a right to go home at the end of the trial ... secure in the belief that they will not be harassed and they will not be questioned”).

Section 720.4 is clearly directed at preventing harassing contact with jurors. Even if such contact was protected by the First Amendment, the State’s interest in preserving the integrity and fairness of the jury system justifies the limitation on protected speech imposed by section 720.4. See generally Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035 (1942) (holding “the right of free speech is not absolute at all times and under all circumstances”). We conclude the statute does not infringe free speech rights as applied to the defendant.

IV. Vagueness Claim.

The concept of fair notice of prohibited conduct embodied in the Due Process Clause of the Fourteenth Amendment to the United States Constitution and article I, section 9 of the Iowa Constitution is the basis for the void-for-vagueness doctrine. See State v. Osmundson, 546 N.W.2d 907, 908 (Iowa 1996); State v. Walker, 506 N.W.2d 430, 432 (Iowa 1993). The United States Supreme Court has explained this doctrine as follows:

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.”

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972) (citations omitted). In view of these considerations, we have held “ ‘a penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ ” Hunter, 550 N.W.2d at 462 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983)). Moreover, “[statutes threatening to inhibit the exercise of constitutional rights receive a more stringent vagueness analysis.” State v. Sylvester, 516 N.W.2d 845, 850 (Iowa 1994).

The specificity required by the Due Process Clause does not mandate that every statutory term be defined in the statute. State v. Sullivan, 298 N.W.2d 267, 270 (Iowa 1980). Due process merely requires that a standard of conduct be reasonably ascertainable “by reference to prior judicial decisions, similar statutes, the dictionary, or common generally accepted usage.” Id.

Baker argued in the district court that section 720.4 is vague because it does not define the term “juror.” She contended a reasonable person such as herself could conclude that an individual is no longer a juror when the case has been concluded and the jury dismissed. Under this view of the statute, its prohibitions would apply only when the recipient of the communication is currently sitting on a case as a juror. We do not agree that a reasonable person would interpret section 720.4 in this manner, particularly in view of the obvious purpose of the statute.

Turning first to the common meaning of the term, we find the dictionary defines “juror” as “1 a: one of a number of men sworn to deliver a verdict as a body : a member of a jury b: a person designated and summoned to service on a jury 2: a person who takes oath esp. of allegiance.” Webster’s Third New International Dictionary 1227 (unabr. ed.2002). This definition does not clearly limit the term “juror” to a person actively or presently serving on a jury. That such a limitation would not be reasonable here is supported by the context of the statute and the legislative purpose underlying the adoption of section 720.4. The statute makes it a misdemean- or to retaliate for anything lawfully done by any juror in any case. Iowa Code § 720.4. The statute focuses on the role played by the victim in a court case without any temporal limitation. Furthermore, the most visible act taken by a juror and clearly the one most likely to generate retaliation is the verdict. In view of the purpose of the statute, it would seem odd indeed that its protection would cease at the very time this safeguard is most needed. See Brown, 250 F.3d at 918-19 (“The judge’s power to prevent harassment and protect juror privacy does not cease when the case ends.”). In fact, section 720.4 has been applied to post-verdict harassment of a juror. See State v. Reynolds, 670 N.W.2d 405 (Iowa 2003).

We think a reasonable person reading the statute and considering its purpose would understand that harassment of jurors is prohibited whether the victim’s jury service is ongoing or has terminated. Therefore, we reject the defendant’s void-for-vagueness challenge to section 720.4.

V. Summary and Disposition.

Section 720.4 does not violate the First Amendment as applied to this defendant. Nor can the district court’s ruling be upheld on the basis that the term “juror” as used in the statute is vague. The district court erred in holding the statute unconstitutional as applied to the defendant and dismissing the charge against her. We reverse and remand for further proceedings.

REVERSED AND REMANDED.

All justices concur except LARSON, J., who dissents.

LARSON, Justice

(dissenting).

I dissent because I believe the statute applied here is vague as to this defendant. While her actions might be considered harassment under the broad definitions of section 708.7(1), I do not believe they may reasonably be construed as actions directed at a juror. The test is that the statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.” See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983).

In this case, I do not believe we can assume that an ordinary person would understand that harassment of a person who had been, but is no longer, a juror could be the subject of this crime. Presumably, when the verdict was rendered, this juror, along with the others, was discharged and was no longer a juror. Here, the telephone call was made only a day or so after the trial. If the defendant had made the call a month or six months later, could it reasonably be construed as a call to a “juror”? I think for constitutional purposes the majority’s interpretation stretches the statute too far. It should not be a matter of “once a juror always a juror.”

State v. Reynolds, relied on by the majority, does not support its conclusion because the status of the victim, a juror who had been discharged, was not even raised as an issue.

We should adopt a bright-line rule that a person is no longer a “juror” under the statute once the juror has been discharged. Any harassment after the point of discharge should be prosecuted under our general harassment statute, Iowa Code section 708.7.

I would affirm the district court, but on a different ground.

      . Schoo’s burglary conviction was based on his conduct in breaking into a residence where his ex-wife was present and assaulting her.

      . The defendant claims that given the restrictions of the First Amendment, only fighting words can be prohibited, citing our decision in State v. Fratzke, 446 N.W.2d 781, 785 (Iowa 1989). Baker misconstrues the breadth of our holding in Fratzke, where we construed Iowa’s harassment statute, Iowa Code section 708.7(l)(a )(1). This court held "that so long as a lawful purpose for the communication exists, no language short of 'fighting words' may serve to defeat or criminalize the sender’s message.” Fratzke, 446 N.W.2d at 785 (emphasis added). The conduct at issue here, however, could be found to be "without legitimate purpose.” Iowa Code § 708.7(1)(a) (1). Therefore, the rationale of Fratzke is inappo-site.


text:
    WORTH COUNTY FRIENDS OF AGRICULTURE, Ronald Balek, Lynn Butler, Vernon Gordon, Ted Lawyer, Dean Lindflott, Douglas Tempus, and Worth County Farm Bureau, Appellees, v. WORTH COUNTY, Iowa, Beverly Pangburn, Dorothy Hanna, and Darrell Bang, as Members of the Worth County Board of Supervisors, Appellants.
    No. 03-0552.
    Supreme Court of Iowa.
    Oct. 6, 2004.

      Charles E. Cutler of Cutler Law Firm, P.C., West Des Moines, for appellants.
    Eldon L. McAfee of Beving, Swanson & Forrest, P.C., Des Moines, for appellees-Worth County Friends of Agriculture and individual appellees.
    Christina L. Gruenhagen of Iowa Farm Bureau Federation, West Des Moines, and Paul Swinton and James Pugh of Morain, Burlingame & Pugh, P.L.C., West Des Moines, for appellee-Worth County Farm Bureau.
    Wallace L. Taylor, Cedar Rapids, and Barclay Rogers of Sierra Club, San Francisco, California, for amici curiae Sierra Club, Iowa Farmers Union, and Worth County Concerned Citizens.
    J. Campbell Helton of Whitfield & Eddy, P.L.C., Des Moines, for amici curiae Iowa Farm Bureau Federation, Iowa Cattlemen’s Association, Iowa Pork Producers Association, Iowa Poultry Association, Iowa Dairy Products Association, Iowa Soybean Association, Iowa Institute for Cooperatives, Agribusiness Association of Iowa, Iowa Turkey Federation, Iowa State Dairy Association, and Iowa Corn Growers Association.
   CADY, Justice.

Worth County and the Worth County Board of Supervisors, collectively referred to as “the County,” appeal from a district court order declaring the County Rural Health and Family Farm Protection Ordinance to be void and unenforceable. On our review, we affirm the judgment of the district court.

I. Background Facts and Proceedings

Iowa is largely defined by its proud and rich agricultural economy. Approximately ninety percent of the land within its borders is devoted to agriculture, and the presence of agriculture in Iowa not only profoundly impacts all its residents, but, literally, the world beyond.

While agriculture has been woven into the very fabric of this state over each passing generation, one segment of this fertile heritage has been the subject of difficult debate and discourse within the last decade. This debate centers on livestock confinement operations, particularly hog confinements. The strength and longevity of the debate directly relates to the corresponding increase in the number and size of hog confinement operations in Iowa. Pork is a multibillion-dollar Iowa industry and now employs nearly 100,000 people. While the impact of hog production on the Iowa economy is substantial, its recent growth has engendered many concerns over its impact on the environment, the health of its workers, and the quality of life of nearby residents and Iowans in general. Large confinements generate a staggering amount of animal waste, which gives rise to legitimate concerns about air quality and contamination of lakes and streams, as well as underground water.

As a result of these concerns, and others, Worth County, located in north-central Iowa, enacted a county ordinance in 2001 called the “Rural Health and Family Farm Protection Ordinance.” The ordinance was the thoughtful product of the cumulative work of the Worth County Board of Health, a citizen advisory committee, and the Board of Supervisors. In essence, the ordinance addressed three areas:

1.It prohibited “the emission of objectionable odorous air contaminants or toxic air emissions from confinement structures, manure storage and treatment, waste disposal modalities, land application, and/or carcass disposal to degrade air quality.” The ordinance set specific concentrations for carbon dioxide, hydrogen sulfide, methane, carbon monoxide, and ammonia. If a complaint was filed, the County would take air samples at the site of the operation. An operation that violated the standards was then given ten business days to correct the violation.
2. It required a livestock operation to meet indoor air quality standards for hydrogen sulfide, ammonia, carbon monoxide, carbon dioxide, and dust. It mandated that operators test employees at the inception of the employment for pulmonary function and tuberculosis.
3. It required a livestock operation to install underground water monitoring wells to monitor for contaminants according to Environmental Protection Agency (EPA) standards.

One month after the ordinance was passed, an association called “Friends of Agriculture,” Worth County Farm Bureau, and several interested residents of the county filed a petition for declaratory judgment and a writ of certiorari in district court. The group, collectively referred to as the “agricultural group,” asked the court to declare the ordinance invalid and illegal. They eventually sought summary judgment, as did the County.

The district court found the ordinance was void and unenforceable because its subject matter was expressly preempted by state law. The district court also determined the governing state law was not unconstitutional.

The County appealed. It claims the ordinance is not expressly preempted by state law. Even assuming it is preempted, the County claims the state law is contrary to the home-rule amendment to our state constitution and is unconstitutional.

II. Scope of Review

Our scope of review is for correction of errors at law. Goodell v. Humboldt County, 575 N.W.2d 486, 491 (Iowa 1998). Our role is to decide whether the district court correctly applied the law to the undisputed facts. Id.

III. The County’s Home-Rule Authority

Before we discuss whether the county ordinance has been preempted by state law, we must first determine whether the ordinance is a valid exercise of the county’s home-rule authority. Id. at 491-92. Article III, section 39A of the Iowa Constitution, which added county home rule by amendment in 1978, provides:

Counties or joint county-municipal corporation governments are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly. The general assembly may provide for the creation and dissolution of joint county-municipal corporation governments. The general assembly may provide for the establishment of charters in county or joint-municipal corporation governments.
If the power or authority of a county conflicts with the power and authority of a municipal corporation, the power and authority exercised by a municipal corporation shall prevail within its jurisdiction.
The proposition or rule of law that a county or joint county-municipal corporation government possesses and can exercise only those powers granted in express words is not a part of the law of this state.

Thus, in order for a county ordinance to be a valid exercise of the home rule authority, it must (1) “determine their local affairs,” and (2) not be “inconsistent with the laws of the general assembly.”

Perhaps in an effort to avoid “judicial battles over the definition of ‘local affairs,’ ” Christopher A. Novak, Agriculture’s New Environmental Battleground: The Preemption of County Livestock Regulations, 5 Drake J. Agric. L. 429, 448 (2000) [hereinafter Novak], the legislature has described a county’s powers broadly as “any function it deems appropriate to protect and preserve the rights, privileges, and property of the county or its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents,” Iowa Code § 331.301(1). Under this description, almost anything qualifies as a local affair. However, this broad description, like the home-rule constitutional amendment, places an important qualification on counties’ powers: they may only exercise powers “if not inconsistent with the laws of the general assembly.” Id. In other words, counties may legislate on matters of statewide concern unless they are preempted by the general assembly. Goodell, 575 N.W.2d at 492, 494 (citations omitted).

IV. Preemption

It is an established principle of law that local government may not legislate those matters the legislative branch of state government has reserved to itself. City of Council Bluffs v. Cain, 342 N.W.2d 810, 812 (Iowa 1983). This legislative power to preempt local action is rooted in the county home-rule provision of our constitution and is essentially a doctrine of necessity justified by “the need to prevent dual regulation which would result in uncertainty and confusion.” Mo. Pac. R.R. v. Bd. of County Comm’rs, 231 Kan. 225, 643 P.2d 188,192 (1982); see Goodell, 575 N.W.2d at 492 (stating that the source of preemption is the prohibition under the home-rule constitutional provision “of the exercise of a home rule power ‘inconsistent with the laws of the general assembly’ ” (quoting Iowa Const, art. III, § 39A) (citing Sam F. Schiedler, Implementation of Constitutional Home Rule in Iowa, 22 Drake L.Rev. 294, 305 (1973)); Craig v. County of Chatham, 356 N.C. 40, 565 S.E.2d 172, 175 (2002) (preemption law is grounded in the need to avoid dual regulation). It recognizes that some matters, by their very nature, “inherently require uniform and consistent treatment at the state level” and are inappropriate “subjects for local regulation.” 56 Am.Jur.2d Municipal Corporations § 329, at 368 (2000).

Under Iowa law, state law may preempt local laws expressly or impliedly. Goodell, 575 N.W.2d at 492. As indicated earlier, we only consider the doctrine of express preemption in this case. Express preemption occurs when the general assembly specifically prohibits local legislation in an area or field by statutory language. Id. (citing Chelsea Theater Corp. v. City of Burlington, 258 N.W.2d 372, 373 (Iowa 1977)). A “local law that regulates in an area the legislature has specifically stated cannot be the subject of local action is irreconcilable with state law” and is invalid. Id.

Our legislature has enacted a statute that places limitations on ordinances adopted by a county. Iowa Code section 331.304A(2), which was passed shortly after our decision in Goodell, provides:

A county shall not adopt or enforce county legislation regulating a condition or activity occurring on land used for the production, care, feeding, or housing of animals unless the regulation of the production, care, feeding, or housing of animals is expressly authorized by state law. County legislation adopted in violation of this section is void and unenforceable and any enforcement activity conducted in violation of this section is void. A condition or activity occurring on land used for the production, care, feeding, or housing of animals includes but is not limited to the construction, operation, or management of an animal feeding operation structure, or aerobic structure, and to the storage, handling, or application of manure or egg washwa-ter.

The language of the statute expressly preempts the regulation of a “condition or activity occurring on land used for the production, care, feeding or housing of animals.” Id. (emphasis added). This is a broad area or field, which reveals a clear intent by our legislature to regulate livestock operations in Iowa. Thus, the real question we face is not whether the legislature has expressly preempted an area or field, but whether the area or field expressly preempted by the state is the same area or field regulated by the county ordinance — that is, whether the ordinance “regulat[es] a condition or activity occurring on land used for the production, care, feeding, or housing of animals.” Id. The test is whether the ordinance irreconcilably conflicts with the statute. Goodell, 575 N.W.2d at 492; see also Iowa Code § 331.301(4) (“An exercise of a county ordinance is not inconsistent with a state law unless it is irreconcilable with the state law.”).

The County argues that its ordinance does not conflict with section 331.304A because it does not “regulate” confinement structures. Instead, the County insists the ordinance is a public health ordinance and that any indirect effect it may have on the production, care, feeding, or housing of animals does not create a conflict with the state law so as to trigger the preemption doctrine.

In determining the meaning of a statute, we first look to the statutory text. State v. Truesdell, 679 N.W.2d 611, 617 (Iowa 2004) (“We apply statutes as written by our legislature, and resort to our rules of construction in the event of an ambiguity.” (citing State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003)). However, neither the general definitional section of chapter 331 nor section 331.304A defines “regulate.” See Iowa Code §§ 331.101, .304A. Accordingly, “we look to prior decisions of this court, similar statutes, dictionary definitions, and common usage.” Bob Zimmerman Ford, Inc. v. Midwest Auto. I, L.L.C., 679 N.W.2d 606, 609 (Iowa 2004) (citing Bernau v. Iowa Dept. of Transp., 580 N.W.2d 757, 761 (Iowa 1998)). Regulate means “to govern or direct according to rule” or “to bring under the control of law or constituted authority.” Webster’s Third New international Dictionary 1913 (2002); accord Carroll County Ethics Comm’n v. Lennon, 119 Md.App. 49, 703 A.2d 1338, 1347 (1998); see also Marshall v. Kan. City, 355 S.W.2d 877, 882 (Mo.1962) (en banc) (“The term ‘regulate’ as used in a delegation of municipal powers is one of broad import; it means generally to prescribe the manner in which a thing licensed may be conducted.” (Citations omitted.)); State ex rel. Cent. Outdoor Adven Co. v. Leonhard, 124 N.E.2d 187, 189 (Ohio Ct.Com.Pl.1953) (“To regulate means to adjust, order or govern by rule, method or established mode, to direct or manage according to certain standards.” (Citations omitted.)).

Clearly, the Worth County ordinance “govern[s] or direct[s] according to rule” “a condition or activity occurring on land used for the production, care, feeding, or housing of animals.” See Iowa Code § 331.304A(2). As previously noted, it sets standards for toxic and odorous air emissions, safety for workers in confinement feeding operations, and water pollution by confinement feeding operations. Nevertheless, the County responds that some leeway must be recognized in applying the preemption doctrine to exclude local regulation of an activity that only indirectly impacts the preempted activity. The County argues if its ordinance is preempted by section 331.304A(2) because it “regulat[es] a condition or activity occurring on land used for the production, care, feeding, or housing of animals,” then many other county ordinances, such as ordinances relating to storage of hazardous materials and construction standards for water wells, are also preempted. The County urges that we adopt a “common sense” approach.

Whether the additional ordinances cited by the County are preempted by section 331.304A(2) is not an issue before us. Our primary concern in interpreting a statute is to determine and effectuate the legislature’s intent. Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 750 (Iowa 2002) (“The ultimate goal ‘is to ascertain and give effect to the intention of the legislature.’ ” (quoting John Deere Dubuque Works v. Weyant, 442 N.W.2d 101, 104 (Iowa 1989)). Although the language of section 331.304A itself is sufficiently clear to show the general assembly intended to prohibit counties from regulating livestock confinement operations, there is additional evidence of that intent.

One commentator described the circumstances surrounding the enactment of the statute as follows:

Shortly before the Iowa Supreme Court released its opinion [in Goodell ], the leaders of the Iowa Legislature announced their intent to preempt county regulation of livestock operations. On April 13, 1998 House File 2494 passed the Iowa House on a 59-40 vote. The compromise legislation incorporated a narrower Senate provision that only preempted county regulation of livestock operations, and not broader agricultural activities as the House originally desired. The principal purpose of the legislation is found in section nine of the Act, which amends chapter 300 of the Iowa Code, the County Home Rule Authority provisions. The Act created code section 331.304A, which specifically precludes a county from “adopting] or enforcing] county legislation regulating a condition or activity occurring on land used for the production, care, feeding, or housing of animals unless the regulation of the production, care, feeding, or housing of animals is expressly authorized by state law.”

Novak, 5 Drake J. Agric. L. at 456.

Moreover, while Worth County promotes its ordinance as a health measure, its plain effect is to regulate activities that are a part of livestock confinement operations. The state law and the local ordinance not only share a common locus, but the activity regulated by the ordinance is, in effect, the same activity reserved for state regulation under state law. One activity of a livestock confinement operation involves the accumulation and disposal of manure. The county ordinance, while promoting health, regulates that activity by limiting manure contamination of air in and around a confinement facility, as well as contamination of the land and underground water. Thus, it regulates health only by requiring livestock confinement operators to engage in practices to avoid violating the ordinance. This creates an irreconcilable conflict with the state law. When the county ordinance is stripped of its health label, it is clearly exposed as an ordinance that regulates the manner and operation of livestock production.

We conclude the Worth County ordinance is the type of ordinance expressly preempted by the state statute. Our legislature intended livestock production in Iowa to be governed by statewide regulation, not local regulation. It has left no room for county regulation. The County nevertheless argues that even if that is the case, section 331.304A is unconstitutional and therefore cannot preempt the ordinance.

V. Constitutionality of Section 331.304A

The County correctly observes that article III, section 39A was adopted to change the balance of power between state and county governments from that expressed in the Dillon rule to that expressed in home rule. City of Clinton v. Sheridan, 530 N.W.2d 690, 691 (Iowa 1995). However, the amendment did not shift all legislative power to counties. The home-rule amendment expressly provides: “County ... governments are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government....” Iowa Const, art. Ill, § 39A (emphasis added). Thus, “the intention of the framers of the amendment was to grant [counties] power to rule their local affairs and government (other than to levy taxes), subject to the superior authority of the General Assembly.” Bechtel v. City of Des Moines, 225 N.W.2d 326, 332 (Iowa 1975) (citation omitted). By enacting section 331.304A, the legislature has exercised its superior authority, expressly retained in the home-rule amendment, to preempt county regulation of livestock confinement facilities. Accordingly, we conclude section 331.304A is not unconstitutional under article III, section 39A of the Iowa Constitution.

VI. Conclusion

Having determined that section 331.304A expressly preempted the Worth County ordinance and that it is not unconstitutional, the result is that the ordinance “is void and unenforceable.” Iowa Code § 331.304A(2). Thus, we affirm the district court’s decision granting summary judgment.

AFFIRMED.

      . See Econ. Research Serv., U.S. Dep't of Agric., The Economics of Food, Farming, Natural Resources, and Rural America: Iowa State Fact Sheet (Aug. 2., 2004), available at http://www.ers.usda.gov/statefacts/IA.htm [hereinafter Iowa State Fact Sheet ] (stating that in 2002, 88.7% of Iowa's total land area was farmland); Patty Judge, Iowa Ag Innovation Center Helping Iowa’s Producers with Value-Added Initiatives, News to Grow On (Iowa Dep't of Agrie. & Land Stewardship), Feb. 6, 2004 ("[0]ver ninety-two percent of Iowa's land [is] in production agriculture....”).

      . See Steve White, Note, Hog Wild: A Look at the Issue of Meatpacker Ownership of Livestock at the Federal and State Level, 52 Drake L.Rev. 793, 797 (2004) (noting an increase in the number of large hog and cattle operations in recent years).

      . See Iowa State Fact Sheet (stating that in 2000, 22.2% of Iowa’s population worked in farm-related jobs); Daniel M. Otto et al., The Role of Agriculture in the Iowa Economy (Aug. 1997), available at http://www. econ.ias-tate.edu/outreach/agriculture/AgImpactStudy/ reports/State.htm (discussing agriculture's economic contribution to Iowa).

      . Office of Water, Environmental Protection Agency, No. EPA-821-B-01-001, Environmental Assessment of Proposed Revisions to the National Pollutant Discharge Elimination System Regulation and the Effluent Guidelines for Concentrated Animal Feeding Operations, at x-xi, 1-1 to 1-2 (Jan.2001), available at http://www.epa.gov/ost/guide/cafo/pdf/EnvAss-essPtlof2.pdf.

      . In its analysis, the district court found the ordinance was not impliedly preempted. Because we ultimately agree with the district court that the subject of the county ordinance has been expressly preempted by state law, we do not address the issue of implied preemption.

      . As we explained in Goodell,

      Implied preemption occurs in two ways. When an ordinance " 'prohibits an act permitted by a statute, or permits an act prohibited by a statute,’ ” the ordinance is considered inconsistent with state law and preempted.
      Implied preemption may also occur when the legislature has "cover[ed] a subject by statutes in such a manner as to demonstrate a legislative intention that the field is preempted by state law.”

        Goodell v. Humboldt County, 575 N.W.2d 486, 493 (Iowa 1998) (citations omitted).

      . Under the Dillon rule municipal corporations possessed and could exercise only those powers granted in express words, or those necessarily implied or incident to the powers expressly granted, or those absolutely essential to the declared objects and purposes of the municipality.

        City of Clinton v. Sheridan, 530 N.W.2d 690, 691 (Iowa 1995) (citing Bechtel v. City of Des Moines, 225 N.W.2d 326, 328-29 (Iowa 1975)); see also Osborne M. Reynolds, Local Government Law 49 (2d ed.2001) (discussing the Dillon rule).