text:
    STATE of Iowa, Appellee, v. Ross Ian Rivers CASHEN, Appellee.
    No. 01-1655.
    Supreme Court of Iowa.
    July 16, 2003.

      Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Public Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. O’Dell, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Randall Jackson, Assistant County Attorney, for appellee.
   STREIT, Justice.

Marijuana was found near a man who claimed it wasn’t his and his girlfriend said it belonged to her. The police charged Ross Cashen with possession of the marijuana. The Iowa Court of Appeals affirmed his conviction. Cashen sought further review arguing there was insufficient evidence to prove he committed a crime and his trial counsel was ineffective for failing to move for a new trial. Because we find insufficient evidence to prove Cashen possessed the marijuana, we vacate the decision of the court of appeals and reverse the judgment and sentence of the district court.

I. Background and Facts

Ross Cashen was convicted of possession of marijuana. Cashen was a back seat passenger in a car that was stopped for a traffic violation. There were six people in the car, four of whom were sitting in the back seat. Cashen was sitting next to a window with his girlfriend sitting on his lap. Once the officer discovered one of the passengers had an outstanding warrant, he asked everyone to get out of the car.

After receiving Cashen’s consent to a search, the officer found a lighter and ZigZag cigarette rolling papers on him. Another officer searched Cashen’s girlfriend and found cigarette rolling papers and a small baggie of marijuana seeds in her pants pocket.

The driver consented to a search of the car. The officers found a baggie of marijuana wedged in the rear seat on the side where Cashen and his girlfriend had been seated. The baggie was stuck in the crack between the back and the bottom of the rear seat. Cashen twice denied any knowledge of the pot. At the jail, Cashen asked an officer if anyone had “fessed up” to owning the marijuana. The officer said no and asked if Cashen thought someone should claim ownership. Cashen said his girlfriend owned the marijuana. While at the jail, the girlfriend admitted the marijuana was hers.

The State charged Cashen with possession of marijuana. A jury found Cashen guilty. The court denied Cashen’s motion for a judgment of acquittal. Cashen appealed claiming there was insufficient evidence to support the conviction because the State failed to prove he had constructive possession of the marijuana. He also asserted his trial counsel was ineffective for failing to move for a new trial on the basis the verdict was contrary to the weight of the evidence.

The Iowa Court of Appeals affirmed Cashen’s conviction. The court determined there was sufficient evidence to conclude Cashen had constructive possession of the drugs. Specifically, the court found Cashen’s initial denials about the marijuana and his later implication of his girlfriend were indicative of his knowledge of the nature and presence of the drug found in the ear. The court also found there was sufficient evidence Cashen exérted dominion and control over the marijuana as evidenced by his proximity to it and his “suspicious activity.” Finally, the court held trial counsel was not ineffective for failing to move for a mew trial. This court granted Cashen’s petition for further review.

II. The Merits

On further review, we examine one issue. We consider whether there was sufficient evidence to establish Casheris constructive possession of the drugs. We review challenges to the sufficiency of evidence for correction of errors of law. State v. Yeo, 659 N.W.2d 544, 547 (Iowa 2003). We will uphold the jury’s verdict if there is substantial evidence to support it. Id. Evidence is substantial if it would convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Id. We review the record in the “light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record.” State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). The State has the burden to “prove every fact necessary to constitute the crime with which the defendant is charged.” Id. “The evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture.” Id. (citing State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981)).

A. Applicable Legal Principles

This case turns on the legal concept of possession.- In the realm of controlled substance prosecutions, possession can be either actual or constructive. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997). A defendant has actual possession of the drugs if he or she has “direct physical control” over the drugs. Id. Possession is constructive where the defendant has knowledge of the presence of the drugs “and has the authority or right to maintain control of [them].” Id. (citation omitted). In the case before us, Cashen did not have actual possession of the marijuana. The officers did not find the marijuana on Cashen’s person. Under these circumstances, the possession to be found, if any, must be constructive.

It is helpful to our discussion to address the progression of our case law regarding constructive possession. We begin with State v. Reeves where we articulated the test for possession. 209 N.W.2d 18 (Iowa 1973). In Reeves, we said the State need not prove actual possession; proof of constructive possession would be enough. Id. at 22. We identified various principles of law relating to possession of narcotics. To prove possession the State must establish by proof: (1) the accused exercised dominion and control over the contraband; (2) the accused had knowledge of the contraband’s presence; and (3) the accused had knowledge the material was a narcotic. Id. at 21-22. We addressed the inferences the State is permitted to make in prosecuting a controlled substance case. ■ For example, “possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused.... ” Id. at 22 (emphasis added). The “immediate and exclusive” access requirement stood undisturbed until 1990 when we retreated from our. earlier pronouncements of fair inferences to be made in proving the elements of constructive possession.

In State v. Rudd, we liberalized the inferences applicable to a finding of control and dominion over contraband and approved a jury instruction that defined constructive possession as follows:

Constructive possession occurs when the defendant maintains the control or a right to control the place where the controlled substance is found, and may be inferred when the substance is found in a place which is accessible to the defendant and subjected to her dominion and control, or the joint dominion and control of the defendant and other persons.

454 N.W.2d 570, 572 (Iowa 1990) (emphasis added). Our case law continued to develop and in State v. Simpson, we approved a similar joint possession instruction as in Rudd. However, the dissent in Simpson criticized the instruction contending it was error for the court to instruct the jury possession can be inferred upon proof that the defendant jointly controlled the place where the contraband was found, without also requiring proof that the place was “immediately and exclusively” accessible to the accused. 528 N.W.2d 627, 637 (Iowa 1995) (Ternus, J., dissenting). The dissent advocated a return to the principles in Reeves, stating those principles

strike a balance between two competing considerations. We want to convict persons guilty of drug offenses even though they are not caught “red-handed” with the drugs on their person. (Citation omitted). However, we also want to protect innocent bystanders from being convicted for drug offenses merely because they were in the wrong place at the wrong time.

Id. at 636 (citing Reid v. State, 212 Ga. App. 787, 442 S.E.2d 852, 853 (1994)).

In State v. McDowell we revisited the legal principles announced in Reeves regarding permissible inferences to be drawn in determining whether a defendant had possession of contraband. 622 N.W.2d 305, 308 (Iowa 2001). We noted “[pjroof of opportunity of access to a place where narcotics are found will not, without more, support a finding of unlawful possession.” Id. (quoting Reeves, 209 N.W.2d at 22). In McDowell, we implicitly rejected the erroneous application in Simpson of the principles regarding inferences to be made and avoided in constructive possession cases. Specifically, we found evidence the defendant was in joint possession of the premises to be insufficient to permit an inference of possession. Id. In doing so, we returned to a proper application of the principles stated in Reeves:

If the premises on which such substances are found are in the exclusive possession of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over such substances may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused the inference of knowledge is rebuttable and not conclusive. But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises.

Id. (quoting Reeves, 209 N.W.2d at 23) (emphasis added).

Most recently, we addressed the issue of constructive possession and again approved of the analysis articulated in Reeves. See Webb, 648 N.W.2d at 79. Our decision in Webb overruled both Rudd and Simpson. Id. In Webb, we reiterated, constructive possession is “knowledge of the presence of the controlled substances on the premises and the ability to maintain control over them.” Id. at 81. In determining whether a defendant had constructive possession, we consider a number of factors. They include: incriminating statements made by the defendant, incriminating actions of the defendant upon the police’s discovery of drugs among or near the defendant’s personal belongings, the defendant’s fingerprints on the packages containing drugs, and any other circumstances linking the defendant to the drugs. Id. at 79 (citing Emile F. Short, Annotation, Conviction of Possession of Illicit Drugs Found in Premises of Which Defendant was in Nonexclusive Possession, 56 A.L.R.3d 948 (1974)). We note these enumerated factors are to be used only as a guide in determining whether the State has established a case of constructive possession. Even if some of these facts are present, we are still required to determine whether all of the facts and circumstances, including those not listed above, allow a reasonable inference that the defendant knew of the drugs’ presence and had control and dominion over the contraband.

B. Analysis

Cashen, along with five other people, was present in the vehicle in which the drugs were found. This fact does not permit an inference of possession because (1) Cashen was not in exclusive possession of the premises — the car, and (2) Cashen did not have exclusive access to the place where the drugs were found — the back seat. The State was required to introduce other evidence that proved Cashen’s actual knowledge of the drugs and his authority or right to maintain control of them.

When the police officer searched Cash-en, he found cigarette rolling paper and a lighter. It could be argued Cashen’s possession of the rolling papers' and lighter shows he had the equipment necessary to use marijuana and he intended to use such drugs if the opportunity presented itself. It is argued that the fact Cashen had rolling papers on his person may suggest he knew the drugs were present. For this fact alone to give rise to a finding of constructive possession, we would have to make the inferential leap that Cashen had some degree of control and dominion over the drugs. Zig-Zag.papers; at most, show Cashen had possession of marijuana in the past and intended to do so again in the future. However, we cannot infer from this fact alone Cashen had authority or the ability to exercise unfettered influence over these drugs.

Another, and perhaps stronger, factor tending to show Cashen knew the marijuana was in the car is the two statements he made to the police regarding the identity of the rightful owner." At the scene, the officers told Cashen he was under arrest for possession of marijuana.-Cashen said he knew nothing about the marijuana. Again at the jail, he denied having any knowledge of the drugs. At the police station, Cashen asked if anyone had “fessed up” to its ownership. Responding that no one had claimed ownership, the police officer asked Cashen if he thought someone should. Cashen said the marijuana belonged to his girlfriend. Viewing these facts in the light most favorable to the State, we conclude the statements, at most, show Cashen had knowledge of the presence of the marijuana. Even assuming the State offered substantial evidence to prove Cashen’s knowledge, the State still failed to prove the second element of the offense, i.e., Cashen had dominion and control over the marijuana.

There is only one relevant fact to this element of the prosecution. Cashen’s closeness to the drugs was the only evidence offered by the State relevant to the question of control and dominion. As we have already concluded, however, Cashen’s proximity to the drugs, though pertinent, is not enough to show control and dominion. Cashen sat in the back seat of the car with his girlfriend seated on his lap with her back to the window. The police officer found the baggie of marijuana lodged in the rear seat on the side where Cashen had been sitting. At trial, the officer testified the. baggie, in relation to Cashen, was just behind him and off to the left of his hip.

• Just as proximity to the drugs should not be used to infer knowledge, it is insufficient to prove control and dominion. State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000); accord Pena v. State, 465 So.2d 1386, 1388 (Fla.Dist.Ct.App.1985); People v. Ruth, 45 Ill.App.3d 910, 4 Ill.Dec. 472, 360 N.E.2d 408, 413 (1977). In Atkinson, we quoted with approval an Arkansas case discussing certain factors to consider when examining cases where

contraband is found in a vehicle occupied by more than one person ... :(1) was the contraband in plain view, (2) was it with defendant’s personal effects, (3) was it found on the same side of the car seat as the defendant or immediately next to him, (4) was the defendant the owner of the vehicle, and (5) was there suspicious activity by the defendant.

Atkinson, 620 N.W.2d at 4 (citing Plotts v. State, 297 Ark. 66, 759 S.W.2d 793, 795 (1988)).

In this case, Cashen was not the owner of the car. The drugs were not in plain view. The marijuana was not found with Cashen’s personal effects. After the police found the marijuana, it cannot fairly be said that Cashen’s actions were of an incriminating nature. Cashen did not behave suspiciously when the car was stopped for the traffic violation. There is no evidence to suggest Cashen made any suspicious or furtive movements in an effort to conceal the drugs from the officers once the car was pulled over. An officer also testified Cashen did not smell of marijuana. There was no evidence of how long the marijuana had been in the vehicle. The State did not offer evidence showing Cashen’s fingerprints on the baggie. No witness testified that the marijuana belonged to Cashen. In fact, his girlfriend claimed ownership. There was no evidence showing Cashen had control and dominion of the drugs with the ability to access them. See Webb, 648 N.W.2d at 77 (possession “may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused”) (quoting Reeves, 209 N.W.2d at 22-23).

The only fact relevant to Cash-en’s alleged control and dominion over the drugs was his proximity to the marijuana. Simply because a person can reach out and grasp something does not mean he or she has control or dominion over the object. A defendant’s mere proximity to contraband is insufficient to support a finding of constructive possession. We do not presume possession where the defendant does not own the car and a finding of constructive possession cannot rest on mere proximity. Atkinson, 620 N.W.2d at 3-4. Cashen was a passenger in a car crammed with six passengers, four of whom were seated in the back seat. The other three passengers riding in the back seat were just as close to the drugs as was Cashen. Because Cashen was not in exclusive possession of the premises, but shared the vehicle with five other people, and because he did not have exclusive access to the place where the drugs were located, the State was required to prove facts other than mere proximity to show his dominion and control of the drugs. Regardless of one’s suspicions, this evidence was insufficient as a matter of law to show that Cashen. had control and dominion over the marijuana.

III. Conclusion

The evidence was insufficient to support the conviction of possession of marijuana. Our possession statute does not criminalize mere proximity to contraband. Given the circumstances above, Cashen’s proximity is insufficient to prove beyond a reasonable doubt that he had dominion and control over the' marijuana. Therefore, we vacate the decision of the court of appeals and reverse the district court’s judgment of conviction and sentence on the charge. Our disposition of the case renders it unnecessary to address Cashen’s ineffective assistance of counsel claim.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED.


source: Caselaw Access Project

author: CADY, Justice. CARTER, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Tonya Mae BRIGGS, Appellant.
    No. 01-1914.
    Supreme Court of Iowa.
    July 16, 2003.

      Christopher A. Kragnes and Tiffany Koenig, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Thomas DeSio, Assistant County Attorney, for appellee.
   CADY, Justice.

In this appeal, we consider whether the imposition of cash only bail violates the Iowa Constitution. We conclude that it does not, and affirm the district court.

I. Background Facts and Proceedings.

On August 10, 2001, Des Moines police arrested Tonya Briggs after she propositioned an undercover police officer. Briggs was later charged with prostitution, marking the fourth time she had been charged with the same offense in less than a year. She made an initial appearance on August 11 and, after her bond was reviewed, was released on $6500 bond “cash/surety” pending her arraignment on September 24. She posted bail on August 19 with the assistance of a local bail bond company.

Briggs did not appear for her arraignment on September 24. This prompted the district court to issue a bench warrant for her arrest. The warrant set bond at $6500 “CASH.” Briggs eventually appeared for arraignment and her bond was continued, “at 6,500 — cash only,” pending her pretrial conference and trial.

Before the date of her pretrial conference arrived, Briggs filed an application for bond review. She argued she “is guaranteed the right to reasonable bail by the Fourteenth Amendment [of the United States Constitution] and by Article I, Section[s] 12 [and] 17 of the Constitution of the State of Iowa.” Following a hearing on her application the district court denied the request. It observed,

[the] [p]urpose of a bond is to ensure the defendant’s presence on court dates and also to ensure protection of the public. Based on the defendant’s criminal history and the fact that she did fail to appear for her arraignment in this case, the Court does find that $6,500 cash only is reasonable to ensure her presence and to ensure the protection of the public from further criminal activity.

Immediately after the denial of the application, Briggs signed a waiver of jury trial and stipulation to a trial on the minutes of testimony on the prostitution charge. She was found guilty and agreed to waive her right to file a motion in arrest of judgment, allowing for her immediate sentencing to a period of incarceration not to exceed two years. On November 20, Briggs filed a timely notice of appeal from the judgment and sentence of the district court, alleging the district court’s restriction of her bail to “cash only” violated several constitutional provisions.

II. Standard of Review.

Ordinarily, we review a district court’s decisions related to bail for an abuse of discretion. State v. Kellogg, 534 N.W.2d 431, 433 (Iowa 1995). However, Briggs’ arguments implicate a number of constitutional provisions, making our review de novo. See id. at 434; see also Klouda v. Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 260 (Iowa 2002).

III. Preservation of Error and Mootness.

The State . contends that Briggs failed to preserve error on her constitutional claims and that her conviction for prostitution based on the minutes of testimony in her case made her claims moot and no longer justiciable before this court. We agree with the State in part on one of these issues.

In her motion for bond review in the district court, Briggs alleged the imposition of cash only bail impinged on a constitutional right derived from the Fourteenth Amendment to the United States Constitution. On appeal, she alleges a violation arising out of the “excessive bail” clause of the Eighth Amendment. See U.S. Const, amend. 8. The State argues Briggs failed to cite the Eighth Amendment in presenting her initial arguments in the district court, and this failure constituted a waiver of any such claim on appeal. We agree.

Several principles can be stated in relation to the Eighth and Fourteenth Amendments. See Willson v. City of Des Moines, 386 N.W.2d 76, 80 (Iowa 1986) (quoting Daniels v. Williams, 474 U.S. 327, 337, 106 S.Ct. 662, 677-78, 88 L.Ed.2d 662, 672 (1986) (Stevens, J., concurring)). The Fourteenth Amendment, of course, is the gateway through which the guarantees of most of the provisions of the Bill of Rights are made applicable to the actions of individual states and state actors. See id. Thus, the provisions of the Eighth Amendment — as portions of the Bill of Rights— could potentially apply to this controversy via the guarantees of the Fourteenth Amendment. See id. Of course, the Fourteenth Amendment has other applications, including the extension of due process rights to all citizens. See id. In some fashion, each of these principles may be applicable to Briggs’ constitutional claim, and may have influenced the method by which her claim was put before the district court.

Yet, as a result of the method by which her claim was actually presented, it is impossible to say precisely what federal constitutional claim Briggs presented to the district court and whether that same claim is being reasserted on appeal. The clearest indicator of this confusion is Briggs’ failure to mention the Eighth Amendment in the district court (although mentioning the Fourteenth Amendment) while premising her federal constitutional claim on the Eighth Amendment (without discussing the Fourteenth Amendment) on appeal. We could infer that Briggs attempted to argue an “excessive bail” claim arising from the Eighth Amendment as incorporated by the Fourteenth Amendment in the district court, yet this is far from clear given the limited argument on this issue. We could also just as easily conclude that her initial allegation of a violation arising from the Fourteenth Amendment was premised on due process guarantees. Yet, such a claim is far different than arguing — as she does on appeal — a violation of the Eighth Amendment. In short, we believe this confusion is indicative of the failure to properly preserve error on a claimed violation of a federal constitutional right relating to cash only bail. Thus, we agree with the State that Briggs has failed to preserve error on this portion of her claim.

On the other hand, we do believe she preserved error on her state constitutional claims. A more intriguing question, however, is whether this controversy is moot and no longer justiciable in light of Briggs’ waiver and stipulation and the district court’s determination of her guilt. As a rule, we do not decide appeals in which “the issue becomes nonexistent or academic and, consequently, no longer involves a justiciable controversy.” State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002). However, an exception to this rule exists for those cases presenting “issues of broad public importance likely to recur.” Id. Briggs’ arguments based on the propriety of her bail became moot after she waived her jury trial and was found guilty. Any decision we issue relating to cash only bail will have no further effect on her at this point in time. To determine whether her claim should still be considered, we look to four factors:

(1) the private or public nature of the issue; (2) the desirability of an authoritative adjudication to guide public officials in their future conduct; (3) the likelihood of the recurrence of the issue; and (4) the likelihood the issue will recur yet evade appellate review.

Id. After considering these factors, we conclude that we should entertain this controversy despite it being moot.

Questions resting on the nature and propriety of cash only bail are of a pressing public interest. The imposition of cash only bail is a regular occurrence in our district courts. The constitutional implications of this form of bail are of great relevance for members of the public, the bar, and the judiciary. The need to provide guidance on this issue is manifest. Moreover, in the absence of authoritative guidance, it is highly likely this issue will recur, potentially resulting in varied and inconsistent interpretations of important constitutional provisions. Finally, although it is conceivable that this issue could reach us under circumstances that would not involve a moot controversy, we believe this issue is highly likely to recur yet evade our review. For all of these reasons, we believe this is one of the exceptional circumstances in which our review is proper even in light of the mootness of the underlying controversy. We turn now to our consideration of the core issue presented by this appeal.

IV. Bailable by Sufficient Sureties.

Briggs argues that the intersection of two provisions of the Iowa Constitution prevents the imposition of cash only bail. Primary of these two is article I, section 12, which provides:

No person shall after acquittal, be tried for the same offence. All persons shall, before conviction, be bailable, by sufficient sureties, except for capital of-fences where the proof is evident, or the presumption great.

Iowa Const, art. I, § 12 (emphasis added). In Briggs’ estimation, the “sufficient sureties” clause of section 12 precludes any bail option that prevents unfettered access to a surety. Thus, she argues, the sufficient sureties clause, combined with the “excessive bail” clause of article I, section 17 of the Iowa Constitution, bars the imposition of cash only bail. Iowa Const, art. I, § 17 (“Excessive bail shall not be required; excessive fines shall not be imposed, and cruel and unusual punishment shall not be inflicted.”' (Emphasis added.)). Briggs asserts that this interpretation is consistent with and commanded by the language of the Iowa Constitution, especially in light of that language’s meaning at the time of our constitution’s drafting.

It is necessary to note at the outset the full context in which the district court’s decisions related to bail were made. Although Briggs correctly cites the two constitutional provisions on bail, she pays little heed to the statutory provisions of the Iowa Code, which also play an important role in any bail analysis. As the State indicates, the district court acted in accordance with the provisions of chapter 811 of the Iowa Code — which describe the operation of the bail process — in setting Briggs’ bail. See Iowa Code §§ 811.1-.12. Most importantly, Briggs’ bail was apparently considered and reconsidered in light of the provisions of Iowa Code section 811.2.

The presence and operation of these statutory bail provisions forces us to re-frame the argument Briggs presents. Although her challenge is focused on the district court’s decision denying her application for bond review, the bail questions before the court arose in the context of the Iowa Constitution and Iowa Code section 811.2. Because Briggs challenges a bail determination resting on a statutory provision, she carries the heavy burden of rebutting the presumption that the statute is constitutional. State v. Biddle, 652 N.W.2d 191, 200 (Iowa 2002). Accordingly, she “must negate every reasonable basis upon which the court could hold the statute constitutional” and “show beyond a reasonable doubt that [the] statute violates the constitution.” Id.

To determine whether Iowa Code section 811.2 and, in turn, the decisions of the district court violate the constitution, we must first determine the actual meaning of the sufficient sureties clause. Our polestar in this analysis is the intent of the framers of our constitution. Howard v. Schildberg Constr. Co., 528 N.W.2d 550, 553 (Iowa 1995); see also Edge v. Brice, 253 Iowa 710, 718, 113 N.W.2d 755, 759 (1962) (noting the framers’ intent that constitutional provisions “endure for an extended future period”). First and foremost, “[w]e give the words used by the framers their natural and commonly-understood meaning.” Howard, 528 N.W.2d at 553. However, we may also “examine the constitutional history and consider ‘the object to be attained or the evil to be remedied as disclosed by the circumstances at the time of adoption.’ ” Id. (quoting Redmond v. Ray, 268 N.W.2d 849, 853 (Iowa 1978)).

As both parties indicate, any attempt to give the words of the sufficient sureties clause “their natural and commonly-understood meaning” is impeded by the changing understanding of this terminology from the time of our constitution’s drafting to the present. Id. Although an interpretation that incorporates modern understandings of the terms is possible, we believe it is necessary to examine our constitutional history to properly gauge the intent of the framers in including this clause. See id. This requires an abbreviated review of the history of bail, the role of sureties in the bail system, and our constitution. At the intersection of these histories, the meaning and purpose of the sufficient sureties clause is revealed. .

1. “Sufficient Sureties” in Historical Perspective.

It is generally accepted that the concept of bail arose in medieval England as a method by which feudal sheriffs could, at their discretion, release prisoners from squalid local jails while they waited for traveling judges to arrive in the area and conduct any necessary trials. Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 966 (1961) [hereinafter Yale article]; Ronald L. Goldfarb, Ransom: A Critique of the American Bail System 23-24 (1965); Daniel J. Freed & Patricia M. Wald, Bail in the United States 1 (1964); see also June Carbone, Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 Syracuse L.Rev. 517, 519-21 (1983). But see Goldfarb at 6, 21-23 (noting other possible origins of bail). A prisoner’s release was often conditioned on his or her delivery into the hands of a surety, a responsible third-party known to the sheriff and the prisoner, who guaranteed the presence of the accused for any further court proceedings. Freed & Wald at 1; Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L.Rev. 731, 745 (1996). If the surety failed to deliver the accused at the appropriate time, he became personally responsible for providing some recompense to the state. Freed & Wald at 1; Yale article at 966. In the beginning, the surety was seen as literally standing in the place of the prisoner, thus permitting the state to punish the surety in the same way it would have punished the absent prisoner. Drimmer, 33 Hous. L.Rev. at 744 n. 60; see also Carbone, 34 Syracuse L.Rev. at 520. Bail guarantees linked to monetary or property forfeiture were not conceived of initially and only developed over time. See Freed & Wald at 1.

The medieval bail system sustained itself by serving the interrelated interests of the state, the prisoner, and the surety. The state avoided the costs of jailing a prisoner, forfeiting direct supervision for a guarantee that the prisoner would be returned at the appropriate time. The prisoner gained temporary freedom, supervision by an individual often of their own choosing, and the tantalizing opportunity to “skip” bail and avoid punishment. As a counterbalance to the threat of physical or monetary forfeiture, sureties were granted wide-ranging powers to ensure the accused remained under their control. Unfortunately, the system was rife with corruption, characterized by inconsistent application, and often harsh in its outcomes. See Carbone, 34 Syracuse L.Rev. at 323-24; Goldfarb at 26.

In an attempt to alleviate these problems, the bail system’s precepts were codified and regulated by the Statute of Westminster in 1275. Carbone, 34 Syracuse L.Rev. at 523-24. While the Statute codified problematic contemporary bail practices, it also provided the first standardization of those practices and allowed for the bail system to be uniformly administered for the first time. Id.; Yale article at 966. It accomplished this in part by specifying “the conditions under which pretrial release was permissible” and “limiting] the power of the sheriff to determining sufficient security in each case, a power subsequently transferred to justices of the peace.” Yale article at 966. It also provided “a rudimentary recognition of a right to bail for at least that small class of prisoners whom the local sheriff’ was now required to allow to be bailed. Carbone, 34 Syracuse L.Rev. at 523. Each of these concepts would be restated and reapplied over ensuing centuries; but remained at the core of nearly all bail systems. See id. at 527-33.

When the first English colonists arrived in America in the seventeenth century, they brought the bail system with them. Id. at 529. However, they were largely disenchanted “with the confusing and conflicting categories of the [Statute of Westminster]- and colonial constitutions forged a new definition of the right to bail.” Id.; see• also Goldfarb at 26-27 (describing the subsequent evolution of some of the reforms generated by the Statute of Westminster).. .Importantly, the first constitutive documents of the colonies, the Massachusetts Body of Liberties (1641) and the Pennsylvania Constitution (1682), each included mandatory bail provisions with a “sufficient sureties” clause. Carbone, 34 Syracuse L.Rev. at 530-32. The Pennsylvania provision was later incorporated into the state’s first post-independence constitution, providing a model for other state constitution drafters to follow. See id. at 532; see also Yale article at 977 app. (listing state constitutions containing a sufficient sureties clause).

At the same time, the dramatic expansion of the colonial population and the seemingly limitless frontier beyond the colonies’ borders provoked some necessary alterations to the way the system had traditionally functioned. Individuals’ ties to their local community became increasingly attenuated; most colonists were, by nature, new to their communities and arrived with limited or non-existent connections to their fellow citizens. Drimmer, 33 Hous. L.Rev. at 748^49. These factors made it difficult for a sheriff to “judge the trustworthiness of sureties and defendants based on personal knowledge.” Id. at 748. Although sureties in England had utilized monetary and property based guarantees, the colonial bail system soon became dependent on them as a substitute for personal surety. Moreover, this dependence created a business opportunity, and “by the mid-nineteenth century, the personal surety system had evolved into a commercial bond system, with bondsmen charging fees to serve as sureties.” Id. at 749; see also Peggy M. Tobolowsky & James F. Quinn, Drug-Related Behavior as a Predictor of Defendant Pretrial Misconduct, 25 Tex. Tech L.Rev. 1019, 1019 n. 2 (1994) (“During the nineteenth century, a commercial or professional bondsman system gradually replaced the personal surety system.”); Freed & Wald at 3. Coincidentally, it was during this same era that the citizens of the territory of Iowa approved our first constitution and Iowa was admitted as a state.

2. “Sufficient Sureties” in the Iowa Constitution(s).

The bail system had been in operation for centuries before the first settlers of the Iowa territory arrived from Illinois in the early 1830s. See James Alton James, Constitution and Admission of Iowa Into the Union, Stud, in Hist. & Pol. Sci., July 1900, at 9. In the interim between settlement and admission as a state, the territory operated under four constitutive documents: the Northwest Ordinance of 1787, the Organic Law of Michigan, the Organic Law of Wisconsin, and, finally,' the Organic Law of Iowa. Each of these documents applied to the settler population of Iowa, although the Northwest Ordinance provided the baseline statement of law from which each organic law made territory-specific deviations. None of these documents included a sufficient sureties clause, although article 2 of the Northwest Ordinance contemplated a right to bail, providing, in part: “All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great.” Northwest Ordinance, ch. 8, 1 Stat. 50 (1789).

The sufficient sureties clause eventually entered our constitutional lexicon when the delegates to our state’s first constitutional convention met to draft our first constitution in October 1844. Unfortunately, no comment is recorded in relation to the clause in the scant records remaining from the convention. See Fragments of the Debates of the Iowa Constitutional Conventions of 1811 and 18⅛6 (Benjamin F. Shambaugh ed., 1900) [hereinafter 1844/46 Debates]. The committee charged with drafting a bill of rights delivered a draft in which the clause was present, and the clause remained in the constitution eventually presented to the people for ratification. See id. at 24-25, 34-43, 162. Moreover, through thirteen years of turmoil over ratification and two subsequent revisions of our constitution, the clause remained unchanged and, from all indications, uncommented upon. See id.; The Debates of the Constitutional Convention 97-226 (1857) [hereinafter 1857 Debates] (providing a transcript of the debate over revisions to the Bill of Rights of the 1844/46 constitution).

3. The Meaning of the Sufficient Sureties Clause.

The gradual emergence of the sufficient sureties clause and the very limited record of its eventual inclusion in our constitution requires us to draw our conclusions on its meaning and application from the historical development of the bail system and other contextual indicators of its meaning. Ultimately, we believe the core purpose of the clause was to guarantee a bailable individual access to a surety of some form. However, a number of factors leads us to conclude that the framers did not intend that such access be unfettered or tied specifically to a commercial bonding process.

The strongest support for our conclusions rests on the language of the clause itself in historical perspective. We believe the framers were at least familiar with the history of the bailing process and the role of surety in that process. Moreover, we know that the framers were familiar with the provisions of other constitutive documents and regularly referenced them in the course of debating drafts of our constitution. See, e.g., 1844/46 Debates at 35, 40, 45; 1857 Debates at 98 (realizing the convention was to debate the report on the Bill of Rights, one delegate “began to compare our Bill of Rights with the Bill of Rights in the constitutions of other States,” noting, “I suppose that was the reason why these constitutions were given to us, that we might have the opportunity of making these comparisons.”). These factors indicate that the framers were conscious of the historical lineage of the words they chose and meant what they said: “[a]ll persons shall ... be bailable, by sufficient sureties,” subject to some exceptions. Iowa Const, art. I, § 12 (emphasis added). We believe this was a clear creation of a right to access a surety of some form. However, this language does not indicate that the framers intended that a person should be bailable by any surety without limit.

To the contrary, the framers chose an explicit limitation on access to a surety by using the word sufficient in the sufficient sureties clause. By including this qualification for a surety, the framers carved out a measure of discretion for the person overseeing the bailing process. This was consistent with the historical approach to sureties. See Yale article at 966 (noting that one of the innovations of the Statute of Westminster was its limitation on “the power of the sheriff to determining sufficient security in each case, a power subsequently transferred to justices of the peace”). Moreover, we believe this investment of discretion with the judicial officer was part of a quid pro quo for a bailable individual that reflected the historical relationship between the state, the prisoner, and the surety.

Our framers chose to provide a limited right to bail in the Iowa Constitution, and provided some protection for this right in that a sufficient surety could bail an accused individual. In exchange, the framers created a potential exception by which the state could retain oversight over this process. Ultimately, this trade off served what has long been acknowledged to be the primary purpose of bail: assuring á defendant’s appearance in court. See Ex Parte Milburn, 34 U.S. (9 Pet.) 704, 709, 9 L.Ed. 280, 282 (1835); State v. Cain, 608 N.W.2d 793, 796 (Iowa 2000); State v. Costello, 489 N.W.2d 735, 737 (Iowa 1992); State v. Zylstra, 263 N.W.2d 529, 531 (Iowa 1978); see also Rendel v. Mummert, 106 Ariz. 233, 474 P.2d 824, 828 (1970); People ex rel. Gendron v. Ingram, 34 Ill.2d 623, 217 N.E.2d 803, 806 (1966) (“Sufficient, as used in the [Illinois] constitution, means sufficient to accomplish the purpose of bail, not just the ability to pay in the event of a ‘skip.’ ”). The defendant was given a right to be bailed, subject to the state’s analysis of a surety’s sufficiency to provide adequate recompense if the prisoner did not show for his judicial proceedings. By allowing a court to judge the sufficiency of the surety, the court was also permitted to judge — implicitly—the sufficiency of the surety’s interest in making sure the prisoner was present for further court proceedings'. Yet, no part of this process dictates unfettered access to a surety for a prisoner. In fact, unfettered access would be contrary to the language of our constitution and, indeed, the long history of the bail system’s development and operation.

We are also confident that the framers did not intend to favor one particular method of surety — commercial bonding— by inclusion of the sufficient sureties clause. The historical record bears out that the concept of commercial bonding was emerging around the time of our constitution’s framing. This emergence brought to light a new concept that deviated from the traditional methods of personal, monetary, or property surety that featured highly personalized contact between the state, the prisoner, and the surety. While it is possible that our framers had both traditional and commercialized surety in mind when drafting the sufficient sureties clause, we do not believe the traditional form of surety had been fully eclipsed nor was the commercial form truly ascendant. At most, our framers had both forms in mind. To conclude the sufficient sureties clause extends an unfettered right to a commercial bail bondsmen contradicts the language of our constitution as well as historical reality.

Iowa Code section 811.2 permits a district court judge to set cash only bail if such bail will best guarantee the accused’s further presence for necessary judicial proceedings. See Iowa Code § 811.2(l)(d), (e). In light of the foregoing discussion, we conclude that this is permissible under the sufficient sureties clause of the Iowa Constitution so long as the accused is permitted access to a surety in some form. However, if the accused shows that the bail determination absolutely bars his or her utilization of- a surety of some form, a court is constitutionally bound to accommodate the accused’s predicament.

Finally, we believe it is possible that a cash only bond could be found unconstitutional under the excessive bah clause of article I, section 17 of the Iowa Constitution. However, we do not believe the excessive bail clause combines with the sufficient sureties clause so as to automatically prevent cash only bail. Instead, we believe the excessive bail clause works with the sufficient sureties clause to protect the interests of the prisoner in the interrelationship between the state, the prisoner, and the surety. Thus, it is conceivable that the use of cash only bail could violate the excessive bail clause even though its use does not automatically violate the sufficient sureties clause.

V. Application to Briggs’ Appeal.

Briggs claims the imposition of cash only bail in her case has violated both the sufficient sureties and excessive bail clauses. However, she presented no evidence to show that she was absolutely precluded from accessing a surety of some form. Instead, her allegations appear to center on the denial of access to a commercial bail bond. As we concluded above, there is no absolute right-to such access. Briggs has made no claim that she could not otherwise find a sufficient surety. Under other circumstances, we would, perhaps, remand this issue to the district court to determine whether Briggs’ access to a surety was completely precluded. However, Briggs’ claim is moot, and any further remand on this issue would be an unwarranted and unnecessary waste of judicial resources.

We also conclude that Briggs’ allegation that her cash only bail was excessive is unavailing. We do not often have the opportunity to consider our excessive bail clause. However, when we do have such an opportunity, the similarity between our clause and the Eighth Amendment’s prohibition on excessive bail “permits us to look to the interpretations by the United States Supreme Court for guidance in interpreting our own clause.” State v. Izzolena, 609 N.W.2d 541, 547 (Iowa 2000). The Court’s clearest statement on the federal excessive bail clause came in its observation that “[t]he only arguable substantive limitation of the Bail Clause is that the Government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.” United States v. Salerno, 481 U.S. 739, 754, 107 S.Ct. 2095, 2105, 95 L.Ed.2d 697, 713 (1987). A consideration of this limitation requires a comparison between “the interest the Government seeks to protect” and the method by which it is being protected. Id.

Iowa Code section 811.2 vests the determination of the appropriate form of bail in the discretion of the district court. Iowa Code § 811.2. The court’s determination is guided by the necessity of “reasonably as-surfing] the appearance of the person for trial or deferral of judgment and [guaranteeing] the safety of other persons.” Id. § 811.2(1). These purposes are accomplished by considering a number of factors in setting bail, including the nature of the defendant’s offense, prior record of criminal activity, and adherence to any other bail requirements imposed by the district court in the past or present. See id. § 811.2(2).

Briggs stood accused of prostitution for the fourth time within a single year. The district court at first permitted her to be bailed by commercial bond, but Briggs abused that opportunity by “skipping” bail and failing to appear for her arraignment. After Briggs appeared for arraignment and the district court set her bail at cash alone Briggs challenged the court’s decision by an application for bond review. In reviewing that application and refusing to alter the bail amount and method of satisfaction, it is clear that the district court considered the purpose of bail and the interests the government sought to protect. Moreover, the method by which the state protected that interest — bail set at $6500 cash — was reasonably related to those interests. We conclude that Briggs’ bail was not excessive.

VI. Conclusion.

For all of the foregoing reasons, we affirm the district court’s decisions related to bail as well as its judgment and sentence.

AFFIRMED.

All justices concur except CARTER, J., LAVORATO, C.J., and TERNUS, J„ who dissent.

CARTER, Justice

(dissenting).

I dissent.

Under the bill of rights to our constitution, “[a]ll persons shall, before conviction, be bailable, by sufficient sureties, except for capital offences where the proof is evident, or the presumption great.” Iowa Const, art. I, § 12. This language clearly mandates that those accused of noncapital offenses are bailable. In describing how the accused is bailable, the constitution expressly provides that this shall be “by sufficient sureties.” A requirement of cash bail is not a surety transaction. Our bill of rights was adopted in 1857. Three years prior thereto this court, relying on the current edition of “Webster’s Dictionary,” defined surety as

one who enters into a bond, or recognizance to answer for another’s appearance in court, or for his payment of a debt or for the performance of some act.

Pitkins v. Boyd, 4 Greene 255, 259 (Iowa 1854). A surety transaction is a tripartite arrangement between an obligee, a prinei-pal obligor, and a secondary obligor who vouches for the performance of the primary obligor.

The majority states that, “if the accused shows that a bail determination absolutely bars their utilization of a surety of some form, a court is constitutionally bound to accommodate the accused’s predicament.” A cash-only bond is a per se denial of the constitutional guarantee to bail “by sufficient sureties.” The majority mistakenly assumes that a surety arrangement may exist by having a third party post the bail. That would not involve a surety relationship and, indeed, is not possible under Iowa law. We have recognized that

there are no provisions for the deposit of money by any person other than the defendant himself — no right of surrender except by the bail or the defendant himself, and when a deposit of money is made, no right of return, except to the defendant. The thought that a third person may furnish the money that defendant is authorized to deposit and af-terwards surrender the defendant and secure a return of the deposit is distinctly negatived.

State v. Owens, 112 Iowa 403, 407, 84 N.W. 529, 530 (Iowa 1900). Although this case was decided under the bail statutes in effect at the time, I submit it is fairly reflective of the understanding of cash bail prevailing at the time the bill of rights was adopted.

The fact that there is a statutory provision for posting cash bond cannot overturn a constitutional provision guaranteeing the right to be bailable by sufficient sureties. Nor does the statute in fact attempt to do that. It provides:

[T]he magistrate shall, either in lieu of or in addition to the above methods of release [release on recognizance] impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial ...:
d. Require the execution of a bail bond with sufficient surety, or the deposit of cash in lieu of bond.

Iowa Code § 811.2 (2001). I submit that the language “in lieu of bond” in this statute is fairly read to mean that cash may be posted in lieu of a surety bond at the election of the person required to post bond. That type of interpretation would be consistent with the constitutional guarantee. The majority’s contribution is inconsistent with the constitutional guarantee.

The majority argues that, because the framers limited bail to the providing of “sufficient sureties,” they carved out a measure of discretion for the person overseeing the bail process. Of course, the person overseeing the bail process must be satisfied with the sufficiency of the surety arrangement. That does not mean, however, that the persons overseeing the bail process may deny the constitutional Cgnt to bail by surety by requiring that bail involve the posting of '•""R

The Supreme Court of Ohio, in interpreting a similar constitutional provision guaranteeing bail by surety, held that

the judge’s discretion is limited to setting the amount of the bond. Once that amount is set, and the accused exercises his constitutional right to list a surety to post bail on his behalf, that being one of the options set forth in [the statute], the clerk of courts must accept a surety bond to secure the defendant’s release, provided the sureties thereon are otherwise sufficient and solvent.

State v. Hendon, 66 Ohio St.3d 115, 609 N.E.2d 541, 543-44 (1993). Similarly, the Tennessee court of appeals in interpreting a constitutional provision authorizing bail by sureties stated:

It would strain any method of statutory construction to hold that this language gives the judge discretion to require a particular form of bail. If the judge were held to have discretion to require a cash-only bond, he would also arguably have the power, for instance, to demand that a defendant put up qualifying real estate in order to secure his release. If a particular defendant had no qualifying real estate, such a requirement would effectively detain the accused in violation of article I, section 15 of the Tennessee Constitution ... which provide that “all defendants shall be bailable by sufficient sureties.” The same result could arise if a cash-only deposit was required of a defendant who had real estate or other sufficient surety, but no cash.

Lewis Bail Bond Co. v. Gen. Sessions Ct., No. C-97-62, 1997 WL 711137, at 5 (Tenn.Ct.App.1997). The Tennessee court correctly recognizes that a cash-only bond will in most instances be more onerous to a person seeking bail than the constitutional guarantee of bail by sufficient sureties. The opinion of the majority tacitly concedes that that will be the situation with respect to this defendant.

Our constitution guarantees an accused the right to bail “by sufficient sureties.” This is indeed an unfettered right to bail by that means. Demanding a cash-only bail is a clear denial of that right. The order of the district court related to bail should be reversed.

LAVORATO, C.J., and TERNUS, J., join this dissent.

      . Further confusing this issue is the fact that Briggs also alleged initially a violation of the Equal Protection Clause of the Fourteenth Amendment, claiming invidious discrimination in the imposition of cash only bail. See U.S. Const, amend. 14, § 1. No mention of equal protection or invidious discrimination is made on appeal.

      . Iowa Code section 811.2 (2001) provides in part:
      1. Conditions for release■ of defendant. All bailable defendants shall be ordered released from custody pending judgment or entry of deferred judgment on their personal recognizance, or upon the execution of an unsecured appearance bond in an amount specified by the magistrate unless the magistrate determines in the exercise of the magistrate’s discretion, that such a release will not reasonably assure the appearance of the defendant as required or that release will jeopardize the personal safety of another person or persons. When such determination is made, the magistrate shall, either in lieu of or in addition to the above methods of release, impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or deferral of judgment and the safety of other persons, or, if no single condition gives that assurance, any combination of the following conditions: ...

        d. Require the execution of a bail bond with sufficient surety, or the deposit of cash in lieu of bond. However, except as provided in section 811.1, bail initially given remains valid until final disposition of the offense or entry of an order deferring judgment. If the amount of bail is deemed insufficient by the court before whom the offense is pending, the court may order an increase of bail and the defendant must provide the additional undertaking, written or in cash, to secure release....

        e. Impose any other condition deemed reasonably necessary to assure appearance as required, or the safety of another person or persons including a condition requiring that the defendant return to custody after specified hours, or a condition that the defendant have no contact with the victim or other persons specified by the court....
      2. Detemiination of conditions. In determining which conditions of release will reasonably assure the defendant's appearance and the safety of another person or persons, the magistrate shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the defendant’s family ties, employment, financial resources, character and mental condition, the length of the defendant's residence in the community, the defendant's record of convictions, including the defendant’s failure to pay any fine, surcharge, or court costs, and the defendant's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

      . The initial recognition of a right to bail of the Statute of Westminster underlies the language of a majority of state constitutions and successive forms of federal legislation guaranteeing bail in certain cases. See Bail:. An Ancient Practice Reexamined, 70 Yale L.J. 966, 977 app. (1961). Indeed, the first portion of article I, section 12 of the Iowa Constitution contemplates that, "[a]ll persons shall, before conviction, he bailable." (Emphasis added). Although many state constitutions and federal legislation guarantee bail in many cases, it is generally accepted that the United States Constitution includes no such guarantee. See 8A Am.Jur.2d Bail & Recognizance § 11, at 276 (1997); see also United States v. Salerno, 481 U.S. 739, 752-54, 107 S.Ct. 2095, 2104-05, 95 L.Ed.2d 697, 712-14 (1987).

      . Civil government in the Iowa territory was borne of the necessity of making and maintaining land claims. James Alton James, Constitution and Admission of Iowa Into the Union, Stud, in Hist. & Pol. Sci., July 1900, at 9-11; see also Benjamin F. Shambaugh, The Constitutions of Iowa 27-33 (1934). To that end, the settlers created claim associations invested with powers to grant and enforce such claims. Shambaugh, at 32-33. These associations had constitutive documents, but surviving examples include no mention of bail or any associated concept. See Shambaugh, at 33-49' (discussing the content of "squatter constitutions”); Jesse Macy, Institutional Beginnings in a Western State, Stud, in Hist. & Pol. Sci., July 1884, at 33-38. In addition, a recounting of the first murder trial within the Iowa territory makes no mention of bail or a bailing process. See Macy, Stud, in Hist. & Pol. Sci., July 1884, at 7-8.

      . Iowa’s constitution “belongs to a group of Constitutions adopted from 1845 to 1857” which, in the opinion of one commentator, represent “the fully matured constitutional system.” Emlin McClain, The Constitutional Convention and the Issues Before It, in Proceedings of the Fiftieth Anniversary of the Constitution of Iowa 155, 164 (1907). All but four of the constitutions adopted in original or revised form during this period included a sufficient sureties clause. See Cal. Const, art. I, § 7 (1849); Ill. Const, art. XIII, § 13 (1848); Ind. Const, art. I, § 17 (1851); Iowa Const, art. I, § 12 (1846); Kan. Const. Bill of Rights no. 14 (1857); Kan. Const, art. I, § 9 (1855); Ky. Const, art. XIII, § 18 (1850); La. Const, tit. VI, art. 104 (1852); La. Const, tit. VI, art. 108 (1845); Minn. Const, art. I, § 7 (1857); N.J. Const, art. I, § 10 (1844); Ohio Const, art. I, § 9 (1851); Or. Const, art. I, § 14 (1857); Tex. Const, art. I, § 9 (1845); Wis. Const, art. I, § 8 (1848); see generally Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws (1909) (providing the four state constitutions adopted during this period that did not include "sufficient sureties” clauses (Maryland (1851), Michigan (1850), New York (1846), and Virginia (1850))).

      . It is not insignificant that the Iowa Constitution was likely patterned on several state constitutions that included sufficient sureties clauses drafted before commercial bonding emerged. See Ala. Const, art. I, § 17(1819); Ark. Const, art. II, § 16 (1836); Conn. Const, art. I, § 14 (1818); Del. Const, art. I, § 12 (1831); Del. Const, art. I, § 12 (1792); Fla. Const, art. I, § 11 (1838); Ill. Const, art. VIII, § 13 (1818); Ind. Const, art. I, § 14 (1816); Ky. Const, art. X, § 16 (1799); Ky. Const, art. XII, no. 16 (1792); Mich. Const, art. I, § 12 (1835); Miss. Const, art. I, § 17 (1832); Miss. Const, art. I, § 17 (1817); Mo. Const, art. XIII, § 11 (1820); Ohio Const, art. VIII, § 12 (1802); Pa. Const, art. IX, § 14 (1838); Pa. Const, art. IX, § 14 (1790); Tenn. Const, art. I, § 15 (1834); Tenn. Const, art. XI, § 15 (1796). Although the historical exigencies of the day clearly influenced our framers in other regards, the emergence of commercial bail bonding' — -which easily could have engendered significant debate and alteration of the traditional sufficient sureties clause — apparently did not. See Shambaugh at 145 (discussing the delegates’ preoccupation with drafting language pertaining to banking corporations in light of "the sting of recent bank failures and the evils of a depreciated currency”). Instead, the sufficient sureties clause appeared in our constitution seemingly by rote. See Fragments of the Debates of the Iowa Constitutional Conventions of 1844 and 1846 24-25, 34-43, 162 (Benjamin F. Shambaugh ed., 1900).

      . We are aware that other jurisdictions have come to opposite conclusions on cash only bail in light of the provisions of their state constitutions or other state law. State v. Parker, 546 So.2d 186, 186 (La.1989); State v. Golden, 546 So.2d 501, 503 (La.Ct.App.1989); State v. Brooks, 604 N.W.2d 345, 352 (Minn.2000); State ex rel. Jones v. Hendon, 66 Ohio St.3d 115, 609 N.E.2d 541, 544 (1993); Lewis Bail Bond Co. v. General Sessions Ct. of Madison County, No. C-97-62, 1997 WL 711137, at *5 (Tenn.Ct.App. Nov. 12, 1997). However, the historical emergence of the sufficient sureties clause in light of our constitutional history leads us to conclude the Iowa Constitution includes a right of access to a surety, but does not guarantee unfettered access.

      . Every "suretyship” involves three parties: "principal” whose debt or default is subject to the transaction; "obligee,” one to whom debt or obligation runs; and "surety,” one that undertakes to perform debt or obligation if principal does not.
      72 C.J.S. Principal & Surety § 2, at 175 (1987).

      . The provision of the Ohio Constitution interpreted in this case provided
      [a]ll persons shall be bailable by sufficient sureties, except a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evidence or the presumption great and where the person poses a substantial risk of serious physical harm to any person in the community.
      Ohio Const, art. I, § 9 (1851).


author: STREIT, Justice.'

text:
    CITY OF SIOUX CITY, A municipal corporation, Appellant, v. IOWA DEPARTMENT OF REVENUE & FINANCE, Appellee.
    No. 02-0939.
    Supreme Court of Iowa.
    July 16, 2003.

      James L. Abshier, City Attorney, Sioux City, for appellant.
    Thomas J. Miller, Attorney General, and Lucille M. Hardy, Assistant Attorney General, for appellee.
   STREIT, Justice.'

“Life is like a sewer — what you get out of it depends on what you put into it.” The City of Sioux City claims what you put into a sewer determines if sales tax should be paid on it. The city presents the question: Do “sewage services” include the collection of rainwater? The Iowa Department of Revenue and Finance says “yes.” It collected five years of back sales taxes on gross receipts for rainwater collection services provided to nonresidential commercial operations from Sioux City. The city requested a refund arguing the term “sewage services” includes only the vile liquids and solids that pass through the city’s sanitary sewers. The department denied the city’s request finding “sewage services” applies to anything that flows through the sewers, including rainwater. An administrative law judge found “sewage services” do not include rainwater collection and therefore the city was entitled to a refund. The department appealed, and the director reversed relying upon the administrative rule that defines “sewage services” as including rainwater collection services among other services to be taxed. On judicial review, the district court affirmed the director’s decision. We find the department did not exceed its discretion in interpreting Iowa Code section 422.43(11) (1997) by administrative rule. Pursuant to this rule, we conclude the term “sewage services” as used in section 422.43(11) includes storm water drainage services. Therefore, we affirm.

I. Background and Facts

In 1998, the Iowa Department of Revenue and Finance conducted an audit of Sioux City’s sales tax collection practices. The department discovered the city had not collected sales tax on the storm water drainage fees charged to nonresidential commercial operations. Relying on Iowa Code section 422.43(11), as interpreted by Iowa Administrative Code rule 701— 26.72(l)(a) (1998), the department levied and assessed sales taxes on such fees going back to 1993. The city paid the assessment and then requested a refund. The department denied the city’s request and the city filed a protest.

The dispute centered on whether the term “sewage services” as it is used in Iowa Code section 422.43(11) includes the drainage of rainwater. The administrative law judge concluded rainwater is not sewage and reversed the department’s denial of the city’s refund request. The department appealed and the director of the department reversed the administrative law judge’s decision. On judicial review, the district court affirmed the director’s decision. The city appeals asserting the trial court erred in interpreting Iowa Code section 422.43(11) to authorize the implementation of sales tax on nonresidential commercial operations for storm water drainage services.

II. Scope of Review

On appeal we consider whether the department had discretion to interpret the term “sewage services” as it is used under Iowa Code section 422.43(11). We also determine whether the department’s definition of “sewage services” in Iowa Administrative Code rule 701 — 26.72(l)(a) was reasonable. On judicial review of a final agency action, our review is limited to correcting any errors of law made by the department. Iowa Code § 17A.19(8)(e).

III. Scope of the Department’s Discretion

The first issue is whether the department had authority to interpret Iowa Code section 422.43(11). We start from the proposition that the department “has no inherent power and has .only such authority as is conferred by statute or is necessarily inferred from the power expressly granted.” Schmidt v. Iowa State Bd. of Dental Exam’rs, 423 N.W.2d 19, 21 (Iowa 1988). The question then is whether the legislature “expressly” granted to the department the authority to interpret Iowa Code section 422.43(11). The 1992 enactment of Iowa Code section 422.43(11) imposed a sales tax on gross receipts derived from a number of different services, including “sewage services for nonresidential commercial operations.” When the legislature added the provision of “sewage services” to the list of services for which the city shall collect a sales tax on the gross receipts, the legislature did not define the term “sewage services.” Iowa Administrative Code rule 701 — 26.72(3) provides,

Retailers obligated to collect the tax. Counties, municipalities, sanitary districts, or any other persons which provide sewage services to nonresidential commercial operations are obligated to collect Iowa sales tax upon the gross receipts from the rendering, furnishing, or performing of sewage services to those operations.

Iowa Admin. Code r. 701—26.72(3). Because the legislature did not define “sewage services,” the department enacted Iowa Administrative Code rule 701-26.72(1)(a) defining the term. The department interpreted “sewage services” as

the service of collecting rainwater and other liquid and solid refuse or excreta for drainage or purification by means of pipes, channels, or conduits usually placed underground.

Iowa Admin. Code r. 701 — 26.72(l)(a).

In section 422.68 the legislature empowered the department to administer and enforce the rules of chapter 422. The general enabling statute gives the department “the power and authority to prescribe all rules not inconsistent with the provisions of [chapter 422], necessary and advisable for its detailed administration and to effectuate its purposes.” Iowa Code § 422.68 (2001) (emphasis added). The adoption of administrative rules which “amend or nullify legislative intent exceeds the department’s authority.” Sorg v. Iowa Dep’t of Revenue, 269 N.W.2d 129, 131 (Iowa 1978).

Given the broad language of the enabling statute, the scope of the department’s authority is expressly comprehensive. The statute says the department is charged with the responsibility of administering the provisions of chapter 422. The statute also expressly delegated to the department the rule making powers necessary to enforce the laws. Bearing in mind the practical considerations involved in the legislature’s vesting the department with discretion to enforce the laws, it follows the department has authority to define terms necessary to fulfill its responsibility. When the department interpreted section 422.43(11), it did so pursuant to the enabling statute. We will grant relief only if the department’s interpretation was “unreasonable, arbitrary, or capricious or characterized by an abuse of discretion.” Iowa Code § 17A.19(8)(p').

IV. Reasonableness of the Department’s Interpretation

The city seeks to prove the department’s interpretation of the statute is not consistent with the language of Iowa Code section 422.43(11). Relief from the department’s action may be granted if the department’s action was “unreasonable, arbitrary, or capricious” or characterized by an abuse of discretion. Iannone v. Dep’t of Revenue & Fin., 641 N.W.2d 735, 738 (Iowa 2002). Action is arbitrary when it is “taken without regard to the law or facts of the case.” Dawson v. Iowa Bd. of Med. Exam’rs, 654 N.W.2d 514, 519-20 (Iowa 2002). An abuse of discretion exists if the department action was unreasonable or lacked rationality. Iannone, 641 N.W.2d at 738. Action is unreasonable when it is “clearly against reason and evidence.” Dawson, 654 N.W.2d at 519.

Turning to the reasonableness of the department’s interpretation of “sewage services,” we apply the well-established rules of statutory construction. Generally, statutory words are presumed to be used in their ordinary and commonly understood sense. The city and department each emphasize different and, at first glance, incompatible definitions of the word “sewage.” The city advocates the term “sewage services” encompasses only the vile solids and liquids that pass through the city’s sanitary sewers. The department contends “sewage services” apply to anything that flows through the sewers, including rainwater. The following discussion is helpful in determining what “sewage services” is meant to encompass.

The primary meaning of the word “sewage” is that which passes through a sewer, and a secondary meaning is derived from the usual character of the contents of a sewer, and as used, in that sense the word signifies the refuse and foul matter solid or liquid, which is so carried off: excreted, as well as waste, refuse or foul matter, carried off in sewers and drains, whether open or closed, by water flowing therein.
The words “sewage”' and “sewerage” both have reference to the general drainage of a city or town by means of sewers and are applied to matter carried away in drains as well as that carried in sewers, and the terms include all kinds of drainage and water discharge.

80 C.J.S. Sewage or Sewerage-Sewer § 62, at 129 (1953) (emphasis added). See also Morgan v. City of Danbury, 67 Conn. 484, 35 A. 499, 500 (1896). Other jurisdictions have defined sewage as “the general drainage of a city or town by means of sewer.” City of Valparaiso v. Parker, 148 Ind. 379, 47 N.E. 330, 331 (1897); accord Citrano v. Hingham Mut. Fire Ins. Co., 58 Mass. App.Ct. 906, 788 N.E.2d 975, 976 (2003); Morgan, 35 A. at 500.

To hinge the proper definition of “sewage services” on the word “sewage” alone is to ignore the other statutory term. When the legislature used the word “services” it intended for the statute to apply to services rendered via the municipality’s sewer system. A “sewer” is defined as

an artificial, usually subterranean, conduit to carry off water and certain waste matter, as (a) surface water due to rainfall; (b) household waste, as slops waste water from sinks, baths, etc., and excreta consisting of urine, feces; (c) waste water from industrial works.

80 C.J.S. Sewage or Sewerage Sewer § 62, at 131. Given these commonly understood meanings of the words “sewage” and “sewer” the department’s act in defining “sewage services” to include the service of collecting rainwater was reasonable. See Iowa Admin. Code r. 701 — 26.72(l)(a). Nothing in the statute suggests the legislature intended to limit such services, based on content, or to restrict sewage services to the collection of sanitary sewage. ’

Our determination is reinforced by an examination of legislative intent. Certain code provisions reveal the legislature’s intent in other chapters to specify a more specific type of sewage services. For example, Iowa Code section 362.2(6) (1997) defines “city utility” in part as “all or part of a ... sanitary sewage system.” Iowa Code section 388.2 (1997) also refers to the existence of “sanitary sewage.” When the legislature enacted Iowa Code section 422.23(11), it did not use the more narrow term “sanitary sewage.” It is clear, on other occasions, the legislature has chosen to restrict the definition of “sewage” to “sanitary” sewage. The legislature’s use of the narrow definition indicates its awareness of the difference between sanitary sewage and “sewage services.” See, e.g., Iowa Code §§ 384.84(2)(a) (1997) (referring to “services of sewer systems, storm water drainage systems, sewage treatment, solid waste collection, water, solid waste disposal), 384.84(3)(a) (1997) (referring to same services as listed in section 384.84(2)(a)). In this case, the legislature used the broad term “sewage services,” indicating its intent to apply the statute using the more expansive definition of sewage. Because the legislature did not specifically limit the meaning of the term, the department acted reasonably in defining “sewage services” to include that which flows through both the sanitary and storm sewers. The department’s decision to define sewage in a broad manner is consistent with Iowa Code section 422.43(11) and legislative intent.

Finally, we note the department promulgated its administrative rule defining “sewage services” in 1992. The legislature has not amended Iowa Code section 422.43(11) since the department enacted the Iowa Administrative Code rule 701 — 26.72(l)(a). We consider the legislature’s inaction as a tacit approval of the department’s action. 2 Am.Jur.2d Administrative Law § 92 at 116 (1994). See also Drahaus v. State, 584 N.W.2d 270, 276 (Iowa 1998) (legislature’s failure to amend a statute in response to a particular interpretation of the statute announced by the court is presumed that the “legislature has acquiesced in that interpretation”). The fact that this administrative rule has been in effect for eleven years strongly cautions against finding the rule invalid.

V. Conclusion

The department did not exceed its authority in interpreting Iowa Code section 422.43(11). The legislature “expressly” vested with the department the authority to define “sewage services” and promulgate an administrative rule reflecting its definition. We conclude the department’s interpretation of “sewage services” was reasonable and Iowa Administrative Code rule 701 — 26.72(l)(a) is a valid administrative rule.

AFFIRMED.

      . Tom Lehrer, We Will All Go Together When We Go, on An Evening Wasted with Tom Lehrer (Warner Brothers 1959).

      . In the case before us, we examine whether the legislature “expressly” vested authority in the department to interpret the statute. We note the 1998 amendments to the Iowa Administrative Procedure Act do not apply to the case before us as the amendments were not effective until July 1, 1999. See 1998 Iowa Acts ch. 1202, § 46; Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 57 (1998) (“expressly” vested has been replaced by the standard of “clearly” vested). The department denied the city's request for a refund in 1998, before the effective date. The amendments did not change the law, but only "clearly and firmly” restated current law. See id. at 73. The amendments strengthen the proposition that the department has no inherent authority, but only those "powers expressly or impliedly delegated to [it] by law.” Id.

      . The city’s content-based definition of “sewage services.”

      . The State's system-based definition of “sewage services.”


author: CARTER, Justice.

text:
    Galen C. GRABILL, Michael W. Nichols, James A. Petersen, Jeffrey L. Petersen, and Jayne Petersen, Appellants, v. ADAMS COUNTY FAIR AND RACING ASSOCIATION, Gail Hampel, Karen Hampel, and Roger Ruchti, Appellees.
    No. 02-0646.
    Supreme Court of Iowa.
    July 16, 2003.

      J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck & Lauterbach, P.C., Harlan, for appellants.
    Dennis M. Gray of Peters Law Firm, P.C., Council Bluffs, for appellees Adams County Fair and Racing Association, Gail Hampel, and Karen Hampel.
    Janice M. Thomas of Patterson, Lorent-zen, Duffield, Timmons, Irish, Becker & Ordway, L.L.P., Des Moines, for appellee Roger Ruchti.
   CARTER, Justice.

Plaintiffs, Galen C. Grabill, Michael W. Nichols, James A. Petersen, and Jeffrey L. Petersen, participants in auto races at the Adams County Speedway in Corning, and Jayne Petersen, spouse of Jeffrey, appeal from a judgment establishing that they had released the racing promoters and others from any claim for injuries arising from a fireworks demonstration at the speedway. The defendants are Adams County Fair and Racing Association, Gail Hampel, Karen Hampel, and Roger Ruchti. After reviewing the record and considering the arguments presented, we conclude that a release signed by all plaintiffs except Jayne Petersen is a complete defense to their action seeking recovery for personal injuries against all of the defendants. Because Jayne Petersen did not sign the release in question, the trial court’s grant of summary judgment on her claim was improper. The grant of summary judgment on the other claims is affirmed. The judgment on Jayne Petersen’s claim is reversed and the case remanded for further proceedings on her claim.

Automobile races were held at the Adams County Speedway in Corning on August 22, 2000, as an activity of the defendant Adams County Fair and Racing Association. That evening a special race, known .as the Hav-A-Tampa race, was being held. Defendant Gail Hampel was the promoter of the racing events at the speedway, and defendant Roger Ruchti was a racing official in charge of the fireworks that were to be set off during the event. Gail’s wife, Karen, was a person present in the restricted area during the activities.'

The plaintiffs who participated in the races were on the infield of the racetrack known as the pit area. This is a restricted area. Each of them was required to sign a release and pay a fee in order to enter the pit area. They testified in their depositions that they had signed similar releases every time they participated in races at other racetracks in Iowa. The release stated in part that the -person signing it waived all claims “arising out of or related to the activity.”

Shortly after the parade lap passed the grandstand, Ruchti discharged a firework display in the pit area. Three or four of the fireworks rocketed horizontally into the infield instead of flying into the air. The loose fireworks exploded in the pit area injuring plaintiffs. The injured parties brought the present action against defendants, seeking recovery for personal injuries. Plaintiff Jayne Petersen also joined in the action, seeking recovery for loss of consortium. Defendants filed a motion for summary judgment, which was resisted by plaintiffs. Following a hearing, the district court granted the motion and dismissed the claims of all plaintiffs. Additional facts will be discussed in our consideration of the legal issues presented.

I. Standard of Review.

The court reviews a grant of summary judgment for correction of errors at law. Iowa R.App. P. 6.4. Summary judgment is granted if there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). The resisting party must set forth specific facts showing that a genuine factual issue exists. Huber v. Hovey, 501 N.W.2d 53, 55 (Iowa 1993); Suss v. Schammel, 375 N.W.2d 252, 254 (Iowa 1985); Froning & Deppe, Inc. v. S. Story Bank & Trust Co., 327 N.W.2d 214, 215 (Iowa 1982). “Summary judgment is proper if the only issue is the legal consequences flowing from undisputed facts.” Huber, 501 N.W.2d at 55.

II. Whether Plaintiffs’ Injuries, Caused by the Discharge of Fireworks During a Racing Event, Were Covered by the Release and Waiver of Liability Signed by Them Prior to their Participation in the Event.

A. Arguments. Plaintiffs assert that the releases they signed did not cover the discharge of fireworks because that activity was not related to the racing events in which they were participating. They also assert that the discharge of fireworks is an ultrahazardous activity that should not be included in a blanket release without specific reference to such activity.

Defendants argue this case is particularly suited for resolution on summary judgment, as the matter is simply a question of contract interpretation. They urge the type of release involved here may be enforced even though the parties have not contemplated the precise circumstance that occurred, especially when the risk occurred within the restricted area covered by the release.

B. Analysis. The release signed by the plaintiffs stated:

RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT
Adams Co. Speedway, Corning, la 8/22/00_ Date Release Signed DescRiption And Location Of Scheduled Event(s)
IN CONSIDERATION of being permitted to compete, officiate, observe, work for, or participate in any way in the EVENT(S) or being permitted to enter for any purpose any RESTRICTED AREA (defined as any area requiring special authorization, credentials, or permission to enter or any to which admission by the general public is restricted or prohibited), EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin"
1. Acknowledges, agrees, and represents that he have or will immediately upon entering any of such RESTRICTED AREAS, and will continuously thereafter, inspect the RESTRICTED AREAS which he enters, and he further agrees and warrants that, if at any time, he is in or about RESTRICTED AREAS and he feels anything to be unsafe, he will immediately advise the officials of such and if necessary will leave the RESTRICTED AREAS and/or refuse to participate further in the EVENT(S).
2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel, any persons in any RESTRICTED AREA, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the EVENT(S), premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) and each of them, their directors, officers, agents and employees, all for the purposes herein referred to as “Releasees,” FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
3. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the Releasees and each of them FROM ANY LOSS, LIABILITY, DAMAGE, OR COST they may incur arising out of or related to the EVENT(S) WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCE OF RELEASEES or otherwise.
5. HEREBY acknowledges that THE ACTIVITIES OF THE EVENT(S) ARE VERY DANGEROUS and involve the risk of serious injury and/or death and/or property damage. Each of THE UNDERSIGNED, also expressly acknowledges that INJURIES RECEIVED MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE RELEAS-EES.
6. HEREBY agrees that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to all acts of negligence by the Releasees, INCLUDING NEGLIGENT RESCUE OPERATIONS and is intended to be as broad and inclusive as is permitted by the laws of the Province or State in which the Event(s) is/are conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue 'in full legal force and effect.
I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW-

Contracts releasing persons from liability for their own negligent acts have been found to be enforceable and are not contrary to public policy. Bashford v. Slater, 250 Iowa 857, 865, 96 N.W.2d 904, 909 (1959); Weik v. Ace Rents, Inc., 249 Iowa 510, 515, 87 N.W.2d 314, 317 (1958); Sears, Roebuck & Co. v. Poling, 248 Iowa 582, 587, 81 N.W.2d 462, 465 (1957). Releases assented to by participants in hazardous activities have been upheld in Huber, 501 N.W.2d at 55; Bashford, 250 Iowa at 865, 96 N.W.2d at 909; and Korsmo v. Waverly Ski Club, 435 N.W.2d 746, 748 (Iowa Ct.App.1988).

The release clearly identifies the individuals who are to be considered released parties: “promoters, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel, any persons in any RESTRICTED AREA, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the EVENT(S) ... and each of them, their directors, officers, agents and employees.” The Adams County Fair and Racing Association should be covered as a racing association. Gail Hampel was the promoter of the racetrack and should be covered by the release as a promoter. Roger Ruchti was an official at the races, first as a ticket-taker, then as a tech inspector and finally was in charge of the pit gate. Additionally, Ruchti had been in charge of discharging fireworks each year at the racetrack since 1988 or 1989. He would seem to be covered as an official of the event or as any person in the restricted area. The record does not disclose Karen Hampel’s role at the racetrack, but she would be covered by the release as “any person in the restricted area.”

Plaintiffs’ contention that the release waived only damages caused by racing contravenes the rather broad language used in the release. The release specified the description and location of the “event(s)” as “Adams Co. Speedway, Corning, la.” It is also clear that anyone participating in the “event(s)” or entering the “restricted area” was required to sign the release. For example, the release requires the signer to continuously inspect the restricted areas and leave such areas if he feels unsafe. Also, it releases a large group of individuals from “ALL LIABILITY,” even when caused by the negligence of the released parties. We believe the language “HEREBY acknowledges that THE ACTIVITIES OF THE EVENT(S) ARE VERY DANGEROUS” implies that more than racing is included in the festivities.

Although it does not appear in the record that the plaintiffs participating in the races had knowledge that there would be a fireworks display that evening, each testified in their depositions that they had participated at other racetracks where fireworks were discharged. In upholding the release of a race promoters liability in Huber, we recognized that a releasing party does not need to have contemplated the precise occurrence that caused injury as long as the occurrence was within the broad range of events that might transpire with respect to the matter being undertaken. Huber, 501 N.W.2d at 56; see also Korsmo, 435 N.W.2d at 749 (parties need not contemplate precise occurrence as long as it is within a broad range of likely activities). Judged by this standard, we believe that the district court properly granted the motion for summary judgment.

Plaintiffs also argue that including the discharge of fireworks within the scope of the release would be improper because fireworks present an ultrahazardous activity. Plaintiffs cite to 35 C.J.S. Explosives § 34 (1999) in support of their position that the discharge of fireworks is an ultra-hazardous activity. Although it is illegal to discharge fireworks within Iowa without a permit, it does not appear to us that the discharge of fireworks is an ultrahazardous activity. It has been recognized that

a fireworks display is not an ultrahazar-dous activity even though it is an activity that threatens a grave risk of harm or death, since the risk of serious harm from the discharge of fireworks is one that could be eliminated through the non-negligent manufacture of the fireworks, and since fireworks displays are a matter of common usage on appropriate occasions such as the Fourth of July.

57A Am.Jur.2d Negligence § 403, at 395 (1989). More importantly, we are satisfied the danger that the fireworks presented in the restricted area was a matter against which the racing promoters were attempting to protect themselves.

III. Whether the Comparative Fault Statute Regarding Spousal Consortium Claims Negates Prior Case Law Holding Such a Claim is Not Derivative of the Spouse’s Claim.

Plaintiff Jayne Petersen argues that her claim for loss of consortium is not covered by the release because she did not sign it and was not otherwise made a party to its provisions. In support of her claim, she notes that we held in Huber, 501 N.W.2d at 57, that the release we upheld in that case as precluding the claims of a racing participant who signed the release did not bar his spouse’s claim for loss of consortium because she had not signed the document. We reach a similar conclusion in the present case. Although defendants urge that a 1997 amendment to Iowa Code section 668.3 provides that an injured person’s claim is imputed to that person’s spouse in the trial of a loss-of-consortium claim, that statute in no way negates the fact recognized in Huber and other cases that the claim continues to be that of the spouse seeking recovery for loss of consortium. While section 668.3(l)(b) may aid defendants in the trial on the merits, it does not serve to subject a loss-or-consortium claimant to the terms of a release that the claimant has not signed or otherwise accepted.

We have considered all issues presented and conclude that the grant of summary judgment dismissing the claims of the male plaintiffs is affirmed. The judgment dismissing the claim of plaintiff Jayne Petersen is reversed, and the cause is remanded for further proceedings on her claim.

AFFIRMED IN PART AND REVERSED IN PART.

All justices concur except LARSON, J., who takes no part.