State of Iowa v. Patrick Ryan Nicoletto , 845 N.W.2d 421 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 12–1862
Filed April 11, 2014
STATE OF IOWA,
Appellee,
vs.
PATRICK RYAN NICOLETTO,
Appellant.
Appeal from the Iowa District Court for Davis County, Myron L.
Gookin, Judge.
A criminal defendant appeals his conviction for sexual exploitation
by a school employee in violation of Iowa Code section 709.15.
REVERSED.
John K. Rigg, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, until
withdrawal, then Sheryl A. Soich, Assistant Attorneys General, Rick L.
Lynch, County Attorney, for appellee.
2
APPEL, Justice.
A jury convicted the defendant, a worker at a local pipe
manufacturer who coached high school basketball pursuant to a
coaching authorization but was not a licensed teacher, of sexual
exploitation by a school employee in violation of Iowa Code section
709.15(3)(a) and (5)(a) (2009). The sexual exploitation statute defines
“school employee” as “a practitioner as defined in section 272.1.” Iowa
Code § 709.15(1)(f). Section 272.1 defines “practitioner” as “an
administrator, teacher, or other licensed professional, including an
individual who holds a statement of professional recognition, who
provides educational assistance to students.” Id. § 272.1(7). The State
prosecuted the defendant solely under the theory that he fell into the
category of “other licensed professional” because he held a coaching
authorization issued pursuant to Iowa Code section 272.31. Although a
coach who holds a teaching or other professional license is clearly
subject to the statute, a mere holder of a coaching authorization without
a professional license within the meaning of section 272.1(7) does not fall
under the sexual exploitation statute. Accordingly, we reverse the
conviction and remand the case to the district court with instructions to
dismiss the case.
I. Background Facts and Prior Proceedings.
A reasonable jury could have found the following facts. Patrick
Nicoletto worked as a night employee at a local pipe manufacturer. He
also entered into contracts with the Davis County Community School
District to be an assistant high school girls’ basketball coach during the
2007 to 2008 and 2008 to 2009 school years. The first contract, dated
August 29, 2007, stated Nicoletto’s term as coach would commence
November 5 of that year and include “90 days of service and such other
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time as may be assigned to coach post-season tournaments or other
related duties.” The second contract, dated March 25, 2008, contained
the same language, except it stated Nicoletto’s coaching term would
commence November 4 of that year. Under the contracts, the State paid
Nicoletto $1940.40 per year. As a condition of payment for his coaching
services, Nicoletto was contractually required to obtain either a teaching
certificate with a coaching endorsement or a coaching authorization.
Because he is not a teacher, Nicoletto obtained a coaching authorization.
In addition to basketball, Nicoletto coached high school baseball for
Davis County.
The Davis County high school basketball season generally lasts
from November through the second week in February. During his first
season, Nicoletto coached the freshman girls’ basketball team and
assisted with the varsity team. At some point during that season, S.L., a
sixteen-year-old junior on the varsity team, began an exchange of text
messages with Nicoletto. Though the messages were originally basketball
related, they soon turned flirty and sexual in nature.
Sometime during 2008, Nicoletto invited S.L. to his house. While
at first Nicoletto and S.L. engaged in physical intimacy short of sexual
intercourse, they eventually engaged in sexual intercourse every week or
two at Nicoletto’s home.
Nicoletto and S.L. took steps to conceal their relationship. For
instance, S.L. would park her vehicle behind Nicoletto’s house or park at
a nearby park and wait for Nicoletto to pick her up. S.L. often informed
her parents she was staying at the homes of various friends. Other
times, S.L. would spend the night at a motel owned by her aunt and
uncle and Nicoletto would pick her up. The relationship continued
throughout the summer, at times during which S.L. would participate in
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organized basketball scrimmages against other high schools. Nicoletto
was present at these scrimmages.
When S.L.’s senior year began in the fall, her school schedule did
not require her to be at school until 10:00 a.m. In the mornings, S.L.
would go to Nicoletto’s house to meet him after he arrived home from
work. At some point near the beginning of the fall semester, the school
principal became concerned about the possible relationship between
Nicoletto and S.L. and telephoned Nicoletto to ask about it. Several
weeks later, the principal called S.L. into his office to discuss the matter.
S.L. denied existence of the relationship. Nicoletto ended the
relationship with S.L. in mid-September.
When the new basketball season started, S.L. and Nicoletto
discussed how to keep their relationship from the rest of the team. By
January or February 2009, S.L. learned Nicoletto was experiencing
relationship difficulties with another woman whom he was dating at the
time. Nicoletto had also moved by this time, and when S.L. went to see
his new house, they engaged in intimacy, which may have included
intercourse, once more.
The State charged Nicoletto with sexual exploitation by a school
employee in violation of Iowa Code section 709.15(3)(a) and (5)(a). A jury
found Nicoletto guilty. The district court sentenced him to five years
imprisonment plus a ten-year special sentence under Iowa Code section
903B.2. Nicoletto timely filed an appeal, which this court retained.
II. Issues.
On appeal, Nicoletto raises a number of challenges. Among other
things, Nicoletto argues that because he was not a school employee as
that term is used under Iowa Code section 709.15(3)(a), he was not
subject to criminal prosecution under this statute. Because the question
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of whether Nicoletto was subject to prosecution under section
709.15(3)(a) is dispositive, we need not reach the other issues.
III. Scope of Review.
We review issues of statutory interpretation and application for
correction of errors at law. E.g., State v. Romer, 832 N.W.2d 169, 174
(Iowa 2013); State v. Gonzalez, 718 N.W.2d 304, 307 (Iowa 2006); State v.
McCoy, 618 N.W.2d 324, 325 (Iowa 2000).
IV. Discussion.
A. Statutory Framework. Section 709.15(3)(a) prohibits “[s]exual
exploitation by a school employee.” “Sexual exploitation” occurs when a
school employee engages in “[a]ny sexual conduct with a student for the
purpose of arousing or satisfying the sexual desires of the school
employee or the student.” Iowa Code § 709.15(3)(b).
The sexual exploitation statute does not contain a definition of
“school employee.” Instead, the sexual exploitation statute provides that
“ ‘school employee’ means a practitioner as defined in section 272.1.” Id.
§ 709.15(1)(f) (emphasis omitted). Accordingly, to understand who is a
school employee subject to the criminal prohibitions of the sexual
exploitation statute, we must refer to another chapter of the Code.
Iowa Code chapter 272 pertains to the board of educational
examiners. Section 272.1, which is incorporated into the criminal
statute under which Nicoletto was prosecuted, defines “practitioner” as
“an administrator, teacher, or other licensed professional, including an
individual who holds a statement of professional recognition, who
provides educational assistance to students.” Id. § 272.1(7).
The State concedes Nicoletto was not an administrator, teacher, or
holder of a statement of professional recognition. It claims, however,
Nicoletto was an “other licensed professional” under section 272.1(7).
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Section 272.1 does not define “other licensed professional,” but it does
define “license”:
“License” means the authority that is given to allow a person
to legally serve as a practitioner, a school, an institution, or
a course of study to legally offer professional development
programs, other than those programs offered by practitioner
preparation schools, institutions, courses of study, or area
education agencies. A license is the exclusive authority to
perform these functions.
Id. § 272.1(5).
Section 272.2 creates the board of examiners and grants it
exclusive authority to license practitioners and establish licensing
criteria. Id. § 272.2(1). Section 272.7 relates to the validity of the
licenses. Id. § 272.7. Section 272.31 separately sets forth the
requirements to obtain a coaching authorization. Id. § 272.31(1). 1
B. Positions of the Parties.
1. The State. The State centers its claim that Nicoletto is a
licensed professional on definitions of “license” and “professional.” The
State points to the definition of “license” in Iowa Code section 272.1(5)
(2009) as well as Iowa Code section 272.7, which provides in part that
“[a] person employed as a practitioner shall hold a valid license with an
endorsement for the type of service for which the person is employed.”
Under these two provisions, the State argues, a coaching authorization
functions as a license because a person who is not a teacher cannot be
employed as the coach of an interscholastic athletic activity unless he or
1The legislature has amended chapter 272 in several ways since 2009. Section
272.2(1) now provides, in addition to the board of education examiners’ authority to
license practitioners, that the board has exclusive authority to “[p]rovide annually to
any person who holds a license, certificate, authorization, or statement of recognition
issued by the board, training relating to the knowledge and understanding of the
board’s code of professional conduct and ethics.” Iowa Code § 272.2(1)(b) (2013)
(emphasis added). Section 272.31 now provides for authorizations for both coaches and
school business officials. See id. § 272.31(1)–(3).
 7
she possesses an authorization. The State notes the school district
required Nicoletto to prove he possessed a coaching authorization as a
condition of his employment. Relying on the definitional language of
section 272.1(5), the State further remarks that Nicoletto’s authorization
was the exclusive authority to act in the capacity as a coach because he
could not be a part-time paid coach without one.
The State then points to a dictionary’s definition of “professional”
as “one with sufficient authority of practical experience in an area of
knowledge or endeavor to resemble a professional.” See Webster’s Third
New International Dictionary 1811 (unabr. ed. 2002) [hereinafter
Webster’s]. The State argues one who holds a coaching authorization is
a professional under this definition because he or she is authorized to
act in a capacity regulated by statute and must have successfully
completed certain courses. The State also maintains the holder of a
coaching authorization must complete special training on topics not
within the scope of common knowledge, which qualifies the holder of a
coaching authorization as a professional.
As to the requirement of section 272.1(7) that the violator be
someone who provides “educational assistance to students,” the State
contends the scope of the statute is broad enough to encompass
Nicoletto’s coaching activities. The State suggests the statute covers
many people who do not engage in classroom teaching activities, such as
administrators, school service personnel, superintendents, athletic
trainers, and counselors. For further support, the State cites State v.
Romer, 832 N.W.2d 169, 177 (Iowa 2013), in which we stated it would be
“illogical . . . to conclude the legislature intended to require an existing
teacher–student relationship in order for a school employee to violate this
Code section.”
8
The State then connects the dots, arguing that because Nicoletto is
a licensed professional and therefore a practitioner under section
272.1(7), it follows that he is a school employee subject to prosecution
under section 709.15(3). To hold otherwise, the State claims, would
defeat our recent declaration in Romer that “the legislature’s clear intent
[in enacting section 709.15(3)] was to protect students from exploitation
by school employees.” 832 N.W.2d at 181.
2. Nicoletto. Nicoletto generally argues he is not a licensed
professional within the meaning of the statute. He contends that not
every person employed by a school district is subject to prosecution for
sexual exploitation of a student under section 709.15. He acknowledges
he was required to complete certain courses to obtain the coaching
authorization, but argues the fact that these courses can be completed in
as little as two weekends undermines any suggestion that a coach
holding only a coaching authorization is a licensed professional. He
notes Iowa Code chapter 272C provides a laundry list of licensed
professionals and the position of coach is not among them.
Nicoletto also maintains the legislature has recognized the
difference between those holding coaching authorizations and those who
are licensed school employees. In particular, Nicoletto points to section
232.69(1)(b)(4), which separately lists licensed school employees and
holders of coaching authorizations as mandatory reporters of child
abuse. Thus, Nicoletto contends that to construe “other licensed
professionals” as used in section 272.1(7) to include holders of coaching
authorizations would render superfluous references to both types of
persons in other parts of the Code, such as the mandatory reporting
statute.
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Nicoletto further notes the legislature has specifically regulated the
activities of coaches in other parts of the Code, such as the prohibition
on gambling on certain athletic events, see Iowa Code § 99B.12(1)(f), and
the prohibition on bribing coaches to influence a game, see id. § 722.3(2).
Accordingly, Nicoletto argues, because coaches are specifically referenced
in other parts of the Code, the legislature’s omission of coaches from the
definition of practitioner was intentional, and therefore, coaches are not
members of the list of persons subject to the sexual exploitation statute.
Turning to definitions of “license” and “professional,” Nicoletto
asserts that while the definition of license in section 272.1(5)
contemplates a license as the exclusive authority to perform a certain
function, a coaching authorization does not impart exclusive authority to
coach interscholastic athletics upon its holder because persons can still
perform the function of a coach on a volunteer basis without a coaching
authorization. Nicoletto thus claims he does not hold a license because
the ability to carry on the function of a coach does not depend upon it.
Nicoletto questions why the legislature would exclude volunteer coaches
from the purview of the sexual exploitation statute if it had intended the
statute to cover coaches.
Further, like the State, Nicoletto provides definitions of
professional, but focuses on those defining the word to refer to someone
with specialized training after years of academic preparation, such as
medicine or the law. Nicoletto cites thirty-two professions for which the
legislature has established licensing boards, and he notes coaching is not
among them. See id. § 272C.1(6).
Nicoletto points to the absurdities that could arise from the State’s
interpretation. If coaches are covered by the sexual exploitation statute,
he notes, an eighteen-year-old assistant coach holding a coaching
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authorization could be prosecuted for kissing an eighteen-year-old
student even if the coach was also a student or had recently graduated
from the school. He further notes the same eighteen-year-old coach
would not be subject to criminal liability for the same conduct if he
coached the same student in a local community league or if the eighteen-
year-old coach was a volunteer.
Finally, Nicoletto generally argues a coach is not one who provides
educational assistance to students. He argues the reason teachers must
have a separate coaching endorsement is that interscholastic athletics
are not part of the educational curriculum. Nicoletto cites Iowa Code
section 256H.1(2)(f) (Supp. 2009) for the proposition that interscholastic
athletics are extracurricular, voluntary activities sponsored by the school
district.
C. Discussion. When interpreting a statute, we begin with the
words used in the statute. See, e.g., State v. Hearn, 797 N.W.2d 577,
583 (Iowa 2011); State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997). “ ‘To
ascertain the meaning of the statutory language, we consider the context
of the provision at issue and strive to interpret it in a manner consistent
with the statute as an integrated whole.’ ” State v. Pickett, 671 N.W.2d
866, 870 (Iowa 2003) (quoting Griffin Pipe Prods. Co. v. Guarino, 663
N.W.2d 862, 865 (Iowa 2003)). When the express terms of a statute are
unambiguous, we may not search for meaning beyond those terms. E.g.,
Hearn, 797 N.W.2d at 583; State v. Chang, 587 N.W.2d 459, 461 (Iowa
1998). Thus we “may not extend, enlarge, or otherwise change the
meaning of a statute” under the pretext of construction. Auen v.
Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). “In the
absence of a legislative definition, we give words their ordinary meaning.”
Hearn, 797 N.W.2d at 583; see also State v. White, 545 N.W.2d 552, 555
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(Iowa 1996). Further, we strive to interpret statutes “consistently with
other statutes concerning the same or a related subject.” Pickett, 671
N.W.2d at 870. Moreover, we interpret statutes in a manner to avoid
absurd results and to avoid rendering any part of an enactment
superfluous. Id.
In this case, we are called upon to interpret a criminal statute. In
interpreting a criminal statute, “provisions establishing the scope of
criminal liability are to be strictly construed with doubts resolved therein
in favor of the accused.” Hearn, 797 N.W.2d at 583; see also, e.g., State
v. Allen, 708 N.W.2d 361, 366 (Iowa 2006); State v. Schultz, 604 N.W.2d
60, 62 (Iowa 1999); State v. Gorman, 464 N.W.2d 122, 123 (Iowa 1990);
Knott v. Rawlings, 250 Iowa 892, 895, 96 N.W.2d 900, 901 (1959).
Further, as recently noted by Justice Antonin Scalia, writing for
the majority in Burrage v. United States, a case in which the Supreme
Court strictly construed a federal statute to preclude imposition of a
penalty enhancement, “[t]he role of [a court] is to apply the statute as it
is written—even if we think some other approach might ‘ “accor[d] with
good policy.” ’ ” 571 U.S. ___, ___, 134 S. Ct. 881, 892, 187 L. Ed. 2d 715,
727–28 (2014) (quoting Comm’r v. Lundy, 516 U.S. 235, 252, 116 S. Ct.
647, 656, 133 L. Ed. 2d 611, 628 (1996)); see also id. at ___, 134 S. Ct.
at 892, 187 L. Ed. 2d at 728 (Ginsburg, J., concurring) (agreeing with the
majority that “ ‘in the interpretation of a criminal statute subject to the
rule of lenity,’ where there is room for debate, one should not choose the
construction ‘that disfavors the defendant’ ” (quoting id. at ___, 134 S. Ct.
at 891, 187 L. Ed. 2d at 726 (majority opinion))). We have repeatedly
expressed a similar view. See Anderson v. State, 801 N.W.2d 1, 1 (Iowa
2011) (“ ‘Ours not to reason why, ours but to read, and apply.’ ” (quoting
Holland v. State, 253 Iowa 1006, 1011, 115 N.W.2d 161, 164 (1962)));
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Gorman, 464 N.W.2d at 123 (“We only concern ourselves with what the
legislature said rather than what it should have said or might have
said.”); State v. Wedelstedt, 213 N.W.2d 652, 656–57 (Iowa 1973) (“It is
not our function to rewrite the statute. If changes in the law are
desirable from a policy, administrative, or practical standpoint, it is for
the legislature to enact them, not for the court to incorporate them by
interpretation.” (Citations and internal quotation marks omitted.)).
Against the backdrop of these principles of statutory
interpretation, we begin our analysis by considering the meaning of the
term “licensed professional” and whether a person holding a coaching
authorization falls within its meaning. We do not believe the ordinary
meaning of the term “licensed professional” includes a person who
merely holds a coaching authorization under Iowa Code section 272.31
(2009).
Persons holding coaching authorizations may be as young as
eighteen, lack secondary education, have only a minimum of training,
and often conduct their coaching as an avocation apart from their full-
time jobs. To apply the term “licensed professional” to Nicoletto, who
worked the night shift at a pipe manufacturer and received a very small
stipend for his coaching services, would not comport with our
longstanding rule of narrowly construing criminal statutes. See, e.g.,
Hearn, 797 N.W.2d at 583; Allen, 708 N.W.2d at 366; Schultz, 604
N.W.2d at 62. Under the State’s interpretation, an eighteen-year-old who
recently graduated from high school and who obtained a coaching
authorization could be considered a licensed professional for being a paid
assistant coach for a summer sport. We find this approach
counterintuitive and doubt whether a part-time assistant coach would
commonly be understood as a licensed professional. See Black’s Law
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Dictionary 1329 (9th ed. 2009) (defining “professional” as “[a] person who
belongs to a learned profession or whose occupation requires a high level
of training and proficiency”); Webster’s at 1811 (defining “profession” as
“a calling requiring specialized knowledge and often long and intensive
preparation including instruction in skills and methods as well as in the
scientific, historical, or scholarly principles underlying such skills and
methods, maintaining by force of organization or concerted opinion high
standards of achievement and conduct, and committing its members to
continued study and to a kind of work which has for its prime purpose
the rendering of a public service” or “a principal calling, vocation, or
employment” and defining “professional” as “one that engages in a
particular pursuit, study, or science for gain or livelihood” or “one who
belongs to one of the learned professions or is in an occupation requiring
a high level of training and proficiency”); American Heritage Dictionary
989 (1985) (defining “profession” as “an occupation or vocation requiring
training in the liberal arts or the sciences and advanced study in a
specialized field” and defining “professional” as “[h]aving great skill or
experience in a particular field or activity”).
Our caselaw is generally consistent with the thrust of the
dictionary definitions. In State v. Winneshiek Co-op Burial Ass’n, 237
Iowa 556, 561, 22 N.W.2d 800, 803 (1946), we held that for purposes of
a licensing statute, there was a distinction between a license to engage in
a “profession” and a license to engage in “trade or business.” We
concluded that undertakers were not professionals even though they
were required to be registered by the board of health and pass an
examination, and that instead undertakers engaged in a business. Id. at
561, 22 N.W.2d at 803–04. We observed the word profession implied
“professed attainments in special knowledge, as distinguished from mere
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skill.” Id. at 561, 22 N.W.2d at 803 (internal quotation marks omitted).
Similarly, in Halverson v. Lincoln Commodities, Inc., 297 N.W.2d 518, 523
(Iowa 1980), we noted that a profession “requires more than mere
training.” We further noted that the word profession “presupposes
special mental and other attainments, special discipline and a liberal
education, or its equivalent” and that a profession primarily involved
“furnishing for others a needed faculty which they cannot provide, at
least as well, for themselves.” Id. at 523. We think the definitions in the
dictionaries and in our caselaw strongly suggest that one merely holding
a coaching authorization should not be considered a licensed
professional under Iowa Code section 272.1(7).
Aside from the broad definitional analysis, there is at least one
more technical reason why a person holding a coaching authorization
under section 272.31 should not be considered a licensed professional.
While chapter 272 does not define the term “other licensed professional,”
it does provide a definition for “license.” See Iowa Code § 272.1(5). As
noted above, this definition defines a license as in terms of exclusivity: “A
license is the exclusive authority to perform [the listed] functions.” Id.
Thus, by the plain terms of section 272.1(5), the grant of a license by the
board of educational examiners confers exclusive legal authority to
perform the function for which the license was issued. See id. But the
function of coaching can be performed by persons without a coaching
authorization, namely, by unpaid volunteers. As noted by the Iowa
Administrative Code, the term “coach” includes an individual “with [a]
coaching endorsement or authorization . . . employed by a school district
under the provisions of an extracurricular athletic contract” as well as
“an individual who instructs, diagnoses, prescribes, evaluates, assists, or
directs student learning of an interscholastic athletic endeavor on a
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voluntary basis.” Iowa Admin. Code r. 281—36.1; see also Iowa Code
§ 279.19B(1) (“The board of directors of a school district may employ . . .
for assistant coach of any interscholastic athletic activity, an individual
who possesses a coaching authorization . . . .”). Thus, the administrative
code contemplates paid and unpaid coaches. Because the function of
coaching may be conducted by unpaid volunteers without coaching
authorizations, the function of coaching is not within the exclusive
domain of a holder of a coaching authorization. A coach therefore cannot
be a license holder within the meaning of section 272.1(5).
More support for our conclusion may be found in the structure of
relevant Code provisions that distinguish between licenses and
authorizations. For example, the authority of the board of educational
examiners over licensing is detailed in Iowa Code section 272.2, and the
validity of those licenses is covered by section 272.7. The board’s
authority with respect to authorizations is covered by Iowa Code section
272.31. The separate treatment of licenses and authorizations suggests
the legislature saw a difference in the terms. See id. §§ 272.2, .7, .31.
Other provisions of the Code related to sex abuse also distinguish
between the holders of a license and the holders of an authorization. For
instance, section 232.69(1)(b)(4) lists licensed school employees and
holders of coaching authorizations separately as mandatory reporters of
child abuse. Id. § 232.69(1)(b)(4). Similarly, section 272.15(1) requires
school officials to report the “resignation of a person who holds a license,
certificate, or authorization issued by the board” for certain misconduct,
including sexual abuse. Id. § 272.15(1) (emphasis added); see also
§ 272.2(14)(b)(i). If an authorization was a license, the inclusion of
holders of authorizations in these statutory provisions would be
meaningless.
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The Code further demonstrates the legislature knows how to
establish a licensing regime for those involved in athletics if it chooses to
do so. Athletic trainers are subject to licensing pursuant to Iowa Code
chapter 152D. The chapter provides for licensing requirements, which
include certain educational, examination, and fee requirements; the
duties of a regulatory board; and procedures for suspending and
revoking licenses. See id. §§ 152D.3 (licensing requirements), .5 (board
duties), .6 (license suspension and revocation). Further, it is unlawful
for a person to engage in the practice of athletic training without a
license. Id. § 152D.7(2). The legislature has thus established an
exclusive licensing regime for athletic trainers. It has not done so for
coaches, but has instead established a separate track for authorizations.
In addition, we note that other jurisdictions find no trouble
expressly drawing coaches within the scope of their sexual exploitation
statutes. See, e.g., Ala. Code 13A–6–80 (LexisNexis Supp. 2013) (defining
“school employee” to include “a teacher, school administrator, student
teacher, safety or resource officer, coach, and other school employee”
(emphasis added)); La. Rev. Stat. Ann. § 14:81.4 (2012) (defining
“educator” as “any administrator, coach, instructor, paraprofessional,
student aide, teacher or teacher aide” (emphasis added)); N.C. Gen. Stat.
Ann. § 14–27.7 (LexisNexis 2013) (specifically listing “teacher, school
administrator, student teacher, school safety officer, or coach, . . . or . . .
other school personnel” (emphasis added)); Ohio Rev. Code Ann.
§ 2907.03(A)(7)–(8) (LexisNexis 2010) (prohibiting sexual conduct
between a student and “a teacher, administrator, coach, or other person
in authority” employed by the school or institution of higher learning
(emphasis added)); 18 Pa. Cons. Stat. Ann. § 3124.2(a.2)(2)(ii)(A)(II) (West
Supp. 2013) (prohibiting conduct between volunteers or employees of
17
schools and students and defining “employee,” in part, to include “[a]n
independent contractor who has a contract with a school for the purpose
of performing a service for the school, a coach, an athletic trainer, [and] a
coach hired as an independent contractor by the Pennsylvania
Interscholastic Athletic Association” (emphasis added)). Although each of
these statutes use linguistic approaches different from Iowa Code section
709.15—we have not found a statute defining “school employee” or a
similar term to include a “licensed professional” in this context—these
statutes nonetheless demonstrate the ease with which legislators may
draw coaches within the scope of a sexual exploitation statute.
Finally, our interpretation draws support from the legislative
history of Iowa Code sections 272.31 and 709.15. As originally enacted
in 1984, section 272.31, which was then located in chapter 260 along
with the rest of the provisions governing the board of educational
examiners, set forth the requirements to obtain a “coaching
authorization.” See 1984 Iowa Acts ch. 1296, § 3 (codified at Iowa Code
§ 260.31 (1985)). At the time, no provision in the chapter governing the
board referenced licenses. Instead, for instance, teachers were required
to hold valid certificates. See Iowa Code § 260.7 (1985). In 1989, the
legislature amended the chapter to require licenses instead of
certificates. See 1989 Iowa Acts ch. 265, § 2 (amending Iowa Code
section 260.2 (1989) to govern the board’s licensing authority). For
example, the legislature now required teachers to hold licenses instead of
certificates and put a provision in place governing the conversion of
certificates to licenses. See 1989 Iowa Acts ch. 265, § 1 (amending Iowa
Code section 260.1 to define “[t]eacher” as a “licensed member of a
school’s instructional staff”), § 7 (amending Iowa Code section 260.7 to
govern the validity of licenses), § 9 (amending Iowa Code section 260.9 to
18
address the continuity of certificates and licenses and to provide for the
conversion of certificates to licenses). That same year, the legislature
amended section 260.31 to refer to “coaching licenses.” See id. §§ 15–16
(codified at Iowa Code § 260.31 (Supp. 1989)) (emphasis added). The
next year, however, the legislature amended section 260.31 to restore the
original language to once again set forth the requirements for a “coaching
authorization.” See 1990 Iowa Acts ch. 1249, § 11 (codified at Iowa Code
§ 260.31 (1991)). This history reinforces our conclusion that the
legislature deliberately chose to use the word “authorization” rather than
“license” to describe what a coach must obtain under Iowa Code section
272.31.
Moreover, when the legislature enacted the sexual exploitation
statute in 1991, it applied only to counselors and therapists. See 1991
Iowa Acts ch. 130, § 2 (codified at Iowa Code § 709.15 (Supp. 1991)). In
2003, the legislature enacted H.F. 549, which amended the sexual
exploitation statute to include school employees and defined “school
employee” using the same definition the statute employs today—a
reference to the definition of practitioner in section 272.1. See 2003 Iowa
Acts ch. 180, § 65 (codified at Iowa Code § 709.15 (Supp. 2003)). That
same year, multiple Senate Files were introduced that would have
brought coaches or those holding coaching authorizations into the sexual
exploitation statute’s definition of “school employee,” but they were not
enacted. See S.F. 44, 80th G.A., Reg. Sess. § 4 (Iowa 2003) (“ ‘School
employee’ means a teacher, employee, contract employee, coach, or
assistant coach . . . .” (Emphasis added.)); S.F. 169, 80th G.A., Reg. Sess.
§ 5 (Iowa 2003) (“ ‘School employee’ means a practitioner or para-
educator as defined in section 272.1, or a person who holds a coaching
authorization awarded pursuant to section 272.31.” (Emphasis added.)).
19
We decline to add to the statute what the legislature itself declined to
enact.
We emphasize that it is not the province of this court to speculate
about probable legislative intent without regard to the wording of the
statute, and any determination must be based upon what the legislature
actually said rather than on what it might have said or should have said.
E.g., Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995). As we have
traditionally and repeatedly stated, “We do not inquire what the
legislature meant; we ask only what the statute means.” State v.
Brustkern, 170 N.W.2d 389, 392 (Iowa 1969) (citations and internal
quotation marks omitted); State v. Ricke, 160 N.W.2d 499, 501 (Iowa
1968); State v. Bishop, 257 Iowa 336, 339–40, 132 N.W.2d 455, 457
(1965); accord State v. Jennie Coulter Day Nursery, 218 N.W.2d 579, 582
(Iowa 1974); Kruck v. Needles, 259 Iowa 470, 477, 144 N.W.2d 296, 301
(1966); Lever Bros. Co. v. Erbe, 249 Iowa 454, 469, 87 N.W.2d 469, 479
(1958); In re Guardianship of Wiley, 239 Iowa 1225, 1232, 34 N.W.2d
593, 596 (1948); Oliver Wendell Holmes, The Theory of Legal
Interpretation, 12 Harv. L. Rev. 417, 419 (1899). Policy arguments to
amend statutes must be directed to the legislature. In re Estate of
Whalen, 827 N.W.2d 184, 194 (Iowa 2013); In re Estate of Myers, 825
N.W.2d 1, 8 (Iowa 2012). These principles are not hypertechnical, but
rather they are fundamental to the separation of powers and must be
applied in a consistent fashion, across all spectrums of cases.
For the above reasons, we conclude a holder of a coaching
authorization under Iowa Code section 272.31 is not a licensed
professional under Iowa Code section 272.1(7). For us to reach the
opposite conclusion, we would need to rewrite the statute and ignore the
20
legislature’s choice to distinguish between licenses and authorizations.
We decline to do so.
Our interpretation of section 709.15(3)(a) in Romer is not contrary
to our interpretation today. In Romer, a teacher argued he could not be
convicted of sexual exploitation by a school employee under section
709.15(3) because no direct teacher–student relationship existed between
him and any of the students whom he was convicted of exploiting. 832
N.W.2d at 175. Unlike in the present case, because the defendant in
Romer was a teacher, there was no question the defendant was at least
the type of school employee that would be covered by the sexual
exploitation statute. The issue instead involved the timing of the sexual
relationship.
We found the legislature defined “school employee” broadly to
encompass situations beyond those only involving a direct teacher–
student relationship, such as those administrators and certain
professionals, including para-educators. Id. at 177; see also Iowa Code
§ 272.1(6) (defining “para-educator” as “a person who is certified to assist
a teacher in the performance of instructional tasks”). We then found
section 709.15 criminalizes the exploitation of a power relationship by
those covered by the statute. Romer, 832 N.W.2d at 177–78 (“It is the fact
that Romer was a teacher and the victims were students, as defined
under the Code, which makes the conduct a crime.” (Emphasis added.));
see also Romer, 832 N.W.2d at 184–85 (Hecht, J., concurring in part and
dissenting in part) (concluding a violation of section 709.15(3) requires
an existing “school employee–student education-based relationship”).
Accordingly, we held section 709.15(3)(a) does not require a
contemporaneous teacher–student relationship. Romer, 832 N.W.2d at
178, 184 (majority opinion).
21
Whether and to what extent coaches who are not “licensed
professionals” should be drawn into Iowa Code section 709.15 is a
matter for the legislature. We conclude only that section 709.15 does not
include coaches who hold only coaching authorizations because they do
not amount to “licensed professionals” within the meaning of section
272.1(2). Because of the language of the relevant statutes, the structure
of the statutes, and the relevant legislative history, we cannot through
construction expand the scope of the statute to include them. See
Burrage, 571 U.S. at ___, 134 S. Ct. at 892, 187 L. Ed. 2d at 727–28;
Anderson, 801 N.W.2d at 1; Hearn, 797 N.W.2d at 583; Allen, 708
N.W.2d at 366; Schultz, 604 N.W.2d at 62; Gorman, 464 N.W.2d at 123;
Wedelstedt, 213 N.W.2d at 656–57; Rawlings, 250 Iowa at 895, 96
N.W.2d at 901; see also Auen, 679 N.W.2d at 590.
V. Conclusion.
Although a coach who holds a teaching or other professional
license is clearly subject to prosecution under section 709.15(3), a
person who coaches merely pursuant to a coaching authorization but
who is not also a “licensed professional,” “teacher,” or “administrator”
within the meaning of section 272.1(7) is not subject to prosecution
under section 709.15(3). We therefore reverse the jury’s verdict and
remand the case for the district court to dismiss the charges against
Nicoletto.
REVERSED.
All justices concur except Waterman and Mansfield, JJ., who
dissent.
22
#12–1862, State v. Nicoletto
WATERMAN, Justice (dissenting).
I respectfully dissent because I conclude Ryan Nicoletto, the
defendant basketball coach paid under a contract with the school
district, was a “school employee” prohibited by Iowa Code section 709.15
(2009) from having sex with a student on his team. I would affirm his
conviction. As the district court correctly stated, “To construe Section
709.15, The Code, to exclude a coach in a public school district would be
contrary to the intent of the statute, and common sense.” The majority’s
hypertechnical interpretation reaching the opposite conclusion opens a
gaping loophole in that law, enacted to protect students from sexual
exploitation by adults at their school. Today’s decision no doubt will
surprise school officials, parents, and coaches who had assumed the
same law that made it illegal for a teacher to engage in sexual activity
with students also applied to coaches. The ball is now in the legislature’s
court to amend section 709.15 to close this new loophole.
The majority’s interpretation of section 709.15 fails to apply a
fundamental rule of interpretation: “[S]tatutes are to be read so they
make sense and achieve the legislature’s purposes.” State v. DeSimone,
839 N.W.2d 660, 667 (Iowa 2013). The legislature’s purpose in enacting
section 709.15 was to criminalize the exploitation of students by school
employees in a power relationship over their victims. State v. Romer, 832
N.W.2d 169, 177–78 (Iowa 2013) (“[W]e have emphasized that it is
exploitation of the power relationship that must be avoided.”). Our court
of appeals in Romer aptly observed, “Our legislature could well have
concluded that a school employee has a higher calling or duty than an
ordinary citizen to protect school-age children.” State v. Romer, No. 11–
0270, 2012 WL 3590725, at *4 (Iowa Ct. App. Aug. 22, 2012)
23
(unpublished opinion), aff’d, 832 N.W.2d 169 (Iowa 2013). Most parents
would agree. I do.
Iowa legislators presumably understood there is a risk of sexual
exploitation of student athletes by coaches that warrants at least the
same statutory prohibitions that are applied to teachers and other school
employees. I see no persuasive indication the legislature intended to
exclude coaches from section 709.15. 2 Coaches, even more than
classroom teachers, are in a power relationship over students, and those
few who lack impulse control are well-positioned to take advantage. As
the district court aptly concluded, “The statute prohibits adults in
schools from abusing their position of trust and authority with students,
for the purpose of gratifying their sexual desires. Certainly, the intent of
the statute is to reach and include individuals in Nicoletto’s position.”
Exactly right.
Anyone with experience in youth sports understands that student
athletes generally are more vulnerable to exploitation by coaches than by
classroom teachers or other school employees. The coach decides who
makes the team, who plays, and who sits on the bench. College
scholarship opportunities may hang in the balance. Practices are after
school hours. Games are at night with travel to other towns. Tension
2The majority notes two proposed bills were introduced in 2003 that would have
expressly named coaches as “school employees” subject to criminal liability for sexual
exploitation. Instead of enacting either of these stand-alone bills, the general assembly
adopted wide-ranging school legislation that, in one section, extended criminal liability
to all “school employees” who are “licensed professionals.” This legislative history is
inconclusive. See Iowa Dental Ass’n v. Iowa Ins. Div., 831 N.W.2d 138, 146 n.3 (Iowa
2013) (concluding “[i]t is difficult to draw definitive conclusions from . . . legislative
history” when multiple versions of a bill are in play). One could infer that the general
assembly intended the final legislation to have the same coverage as the stand-alone
bills. One could further infer that the legislature assumed it was unnecessary to name
coaches in the final legislation because they were easily included under the definition of
“licensed professional.”
24
and emotional drama are inevitable. For obvious reasons, the training
required to attain and renew coaching authorizations includes conduct
advisories to avoid impropriety and the appearance of impropriety. See
generally Iowa Admin. Code r. 282—22.1(2)(a)(5) (requiring five hours of
coursework “relating to the knowledge and understanding of professional
ethics and legal responsibilities of coaches” to earn coaching
authorization). Nicoletto serves as an example of what can happen.
Commentators agree:
The sad truth is that sports provide the perfect
opportunity for adults to sexually exploit children. Coaches
are placed on a pedestal by parents and children. They work
closely with youngsters, often away from other adults. In
some cases they travel out of town together, often staying
overnight. Parents have assumed that their child will be
protected because there are other children around. Clearly
this is not a guarantee.
Robert J. Shoop, Sexual Exploitation in Schools: How to Spot It and Stop It
32 (2004).
Children in a coach-player relationship tend to be
more susceptible to sexual assault for various reasons.
Whenever there exists a parenting or nurturing environment,
children are much more likely to consent to activities they
usually would never undertake. Children look to coaches as
role models, heroes, or even best friends; therefore, athletes
almost always automatically trust them. Furthermore, from
the earliest stages of athletics, children are taught to never
argue with or disobey coaches.
Jamie Peterson, “Don’t Trust Me with Your Child”: Non-Legal Precautions
When the Law Cannot Prevent Sexual Exploitation in Youth Sports, 5 Tex.
Rev. Entm’t & Sports L. 297, 299 (2004) (footnotes omitted).
The majority plays a linguistic shell game to get to its result. The
majority concludes, erroneously, that a “coaching authorization” is not a
“license” and a coach is not a “licensed professional.” A “coaching
authorization” is simply a form of “license.” I disagree with the majority’s
25
conclusion that a paid sports coach is not a “professional.” Common
definitions of “professional” plainly include trained coaches paid to do
their job. We use the word “professional” to distinguish a paid employee
from a volunteer or amateur. See Webster’s Seventh New Collegiate
Dictionary 680 (1972) (defining “professional” as “participating for gain or
livelihood in an activity or field of endeavor often engaged in by
amateurs”; “engaged in by people receiving financial return”; “one that
engages in a pursuit or activity professionally”); Webster’s Third New
International Dictionary 1811 (unabr. ed. 2002) (defining “professional” as
“one with sufficient authority or practical experience in an area of
knowledge or endeavor to resemble a professional”). You can hire a
professional painter to touch up your living room ceiling or do it yourself.
The painter does not need a doctorate to be a professional. There is no
contextual indication the legislature intended a narrow definition for
“licensed professional” in section 709.15 limited to the learned
professions requiring advanced degrees. I would affirm the rulings by
two district court judges 3 that Coach Nicoletto was a “licensed
professional” within the meaning of section 709.15.
The majority’s effort to distinguish a “coaching authorization” from
a “license” is unpersuasive. Iowa Code section 709.15(1)(f) defines
“school employee” to mean “a practitioner as defined in section 272.1,”
which in turn defines “practitioner” as follows:
3The first district court judge denied Nicoletto’s motion to dismiss in a thorough,
well-reasoned ruling filed July 6, 2012, that carefully addressed the interrelated
statutory provisions in concluding a coach is a licensed professional subject to the
criminal prohibitions of Iowa Code section 709.15. Another judge presided over the
trial and reached the same conclusion in a separate, well-reasoned ruling on Nicoletto’s
posttrial motions.
26
“Practitioner” means an administrator, teacher, or other
licensed professional, including an individual who holds a
statement of professional recognition, who provides
educational assistance to students.
Iowa Code § 272.1(7) (emphasis omitted). The fighting issue in this case
is whether a coach is a “licensed professional.” Section 272.1 defines
“license” as follows:
“License” means the authority that is given to allow a person
to legally serve as a practitioner, a school, an institution, or
a course of study to legally offer professional development
programs, other than those programs offered by practitioner
preparation schools, institutions, courses of study, or area
education agencies. A license is the exclusive authority to
perform these functions.
Iowa Code § 272.1(5) (emphasis omitted).
Separately, a person who does not have a teaching license must
obtain a “coaching authorization” to serve as a paid coach in an Iowa
public school. See Iowa Admin. Code r. 282—22.1 (“A coaching
authorization allows an individual to coach any sport in a middle school,
junior high school, or high school.”); see also Iowa Admin. Code r. 282—
13.28(29)(b) (stating requirements to receive an “Athletic coach” teaching
endorsement). As the district court recognized, that coaching
authorization is what authorizes the coach to serve as a coach—which
equates to a license. A coaching authorization is simply a form of a
license. Many coaches have a teaching license. Under the majority’s
interpretation, section 709.15 criminalizes a paid coach’s sexual activity
with a student if the coach has a teaching license, but not if, like
Nicoletto, the coach has only the coaching authorization. That makes no
sense.
Significantly, the legislature treats authorizations the same as
licenses throughout chapter 272, so why treat them any differently in
this context? For example, Iowa Code section 272.2(1)(b) (2013) charges
27
the board with “[p]rovid[ing] annually to any person who holds a license,
certificate, authorization, or statement of recognition issued by the
board, training relating to the knowledge and understanding of the
board’s code of professional conduct and ethics.” Iowa Code section
232.69(1)(b)(4) (2009) lists both licensed school employees and holders of
coaching authorizations as mandatory reporters of child abuse. Iowa
Code section 272.15(1)(a)(2) (2013) requires school officials to report
disciplinary action against “a person who holds a license, certificate, or
authorization issued by the board” for the same conduct.
As the majority acknowledges, coaches like Nicoletto are
mandatory reporters of child abuse, including improper sexual contact.
Iowa Code § 232.69(1)(b)(4) (2009). Yet, now, under the majority’s
interpretation of section 709.15, Nicoletto may lawfully have consensual
sex with sixteen-year-old girls 4 he coaches—conduct that would land
their classroom teacher in prison. He would be legally obligated to report
a teacher who did what he did, but not himself. This is absurd. The
majority thereby disregards yet another rule Iowa courts are to follow:
“We seek to ‘avoid strained, impractical, or absurd results’ in interpreting
statutes.” Rivera v. Woodward Res. Ctr., 830 N.W.2d 724, 733 (Iowa
2013).
I would not give a pass to Coach Nicoletto, who at the time of his
misconduct at issue was thirty years old, with a college degree and a
decade of coaching experience. He is fourteen years older than his
4It is a separate crime, commonly known as statutory rape, for an adult to have
sex with a fourteen or fifteen year old if the adult is four or more years older than the
minor. Iowa Code Ann. § 709.4(1)(b)(3)(d) (West, Westlaw current through immediately
effective legislation signed as of April 4, 2014) (with exception for those cohabitating at
the time as husband and wife); see also id. § 709.4(1)(b)(2) (criminalizing sex act with
child age thirteen or younger by any person not cohabitating at the time as husband
and wife); id. § 709.3(1)(b) (criminalizing sex act with person under the age of twelve).
28
victim. He began having sex with the victim when she was age sixteen, a
junior in high school, and playing on the girls’ varsity basketball team he
was paid to coach. She became enamored with her coach during the
varsity season and initiated their relationship through text messages that
hinted she “liked him.” He balked at first, texting back that “it sounded
dangerous and he wasn’t sure he could trust [her].” She responded that
she “was very trustworthy and he could trust” her. Their texts escalated
into sexual banter. He invited her to his house in March of 2008, late in
the basketball season. She went there alone, unsure what would
happen. By April, they were having sex, and she was spending nights at
his home, telling her parents that she was staying at a friend’s house.
The relationship extended into the summer, as Nicoletto continued to
coach the basketball team in off-season scrimmages and practices. Their
clandestine sexual liaison continued into the fall semester and spanned
two basketball seasons. Nicoletto has never claimed he believed Iowa law
permitted him to sleep with a girl he coached.
Nicoletto obviously had “fair warning” that sleeping with a student
was wrong—he acknowledged as much and went to great lengths to keep
his relationship with the victim secret. See Crandon v. United States, 494
U.S. 152, 160, 110 S. Ct. 997, 1002, 108 L. Ed. 2d 132, 141 (1990)
(“[C]onstruction of a criminal statute must be guided by the need for fair
warning . . . .”). 5 He told her never to phone him because he did not
5The majority understandably does not rely on the rule of lenity. See United
States v. Castleman, ___ U.S. ___, ___, 134 S. Ct. 1405, 1416, 188 L. Ed. 2d 426, ___
(2014) (citing Crandon and noting “ ‘the rule of lenity only applies if, after considering
text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty
in the statute, such that the Court must simply guess as to what Congress intended’ ”
(quoting Barber v. Thomas, 560 U.S. 474, 488, 130 S. Ct. 2499, 2508, 177 L. Ed. 2d 1,
12 (2010))). But see State v. Copenhaver, 844 N.W.2d 442, 453 n.4 (Iowa 2014)
(Mansfield, J., dissenting) (questioning whether the rule of lenity in Iowa is limited “to
situations where there was grievous ambiguity in a statute and no [other] basis for
29
want her number on his phone bills. Yet, they exchanged thousands of
text messages, ninety-one in one day. He warned her never to tell
anyone about their relationship. He got very angry when she told a
friend. Nicoletto told the victim that his family “would disown him” if
they knew what he was doing. He ended their relationship only because
a suspicious principal began asking them both questions. He had sex
with the victim the morning he ended their relationship. When Nicoletto
later tearfully confessed to his adult girlfriend, he asked if she “thought
he was a pedophile.” After the relationship ended, Nicoletto “wouldn’t
even look at [the victim] at practice.” When confronted by her mother
and later the police, the victim initially denied any relationship with
Nicoletto and later came clean. She testified at his jury trial. The jury
found him guilty.
For those reasons, I would affirm the district court’s rulings that
Nicoletto’s misconduct is criminal under Iowa Code section 709.15.
Mansfield, J., joins this dissent.
_________________________
choosing among plausible interpretations of a statute” (internal quotation marks
omitted)).