author: HECHT, Justice. LARSON, Justice

text:
    Marly ZIECKLER, Appellant, v. AMPRIDE, Dickinson County Memorial Hospital, Mutual Service Casualty Insurance Co., c/o Berkley Risk, and Iowa Insurance Guaranty Association, Appellees.
    No. 05-1958.
    Supreme Court of Iowa.
    Dec. 14, 2007.
    Rehearing Denied Jan. 17, 2008.

      E.W. Wilcke, Spirit Lake, for appellant.
    Andrew D. Hall and Lisa R. Perdue of Grefe & Sidney, P.L.C., Des Moines, for appellees Ampride and Mutual Service Casualty Insurance Co.
    Iris J. Post of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees Dickinson County Memorial Hospital and Iowa Insurance Guaranty Association.
   HECHT, Justice.

Marly Zieckler was awarded some, but not all, of the workers’ compensation benefits she sought from her employers, Am-pride and Dickinson County Memorial Hospital and their insurers (collectively, the defendants). She appealed the arbitration award to the commissioner who dismissed her appeal pursuant to Iowa Administrative Code rule 876-4.30 (2004). Zieckler sought judicial review of the agency’s decision, and the district court affirmed the dismissal of the appeal. Zieckler now appeals the district court judgment affirming the workers’ compensation commissioner’s dismissal of her in-tra-agency appeal.

At the time of Zieckler’s appeal, rule 876-4.30 provided:

The appealing party shall bear the initial cost of transcription on appeal and shall pay the certified shorthand reporter or service for the transcript.... In the event the cost of the transcript has been initially borne by a nonappealing party prior to appeal, the appealing party or parties within 30 days after notice of appeal or cross-appeal shall reimburse the cost of the transcript to the nonap-pealing party and if not so reimbursed the appeal shall be dismissed.

I. The Agency Proceedings.

The hearing officer, following the arbitration hearing, requested that the defendants furnish a transcript of the hearing to aid her in drafting the arbitration award. One of the defendants ordered the transcript and paid for it. Zieckler did not reimburse the defendant within thirty days of the appeal, as required by rule 876-4.30, and the defendants moved to dismiss the appeal. Zieckler, who claimed she did not know the amount of the bill or even who had paid it prior to the filing of the motion to dismiss, offered to reimburse the defendants, but they refused to accept payment.

The commissioner dismissed Zieckler’s appeal, observing that

[njothing in the rule requires that the party who initially paid the cost of the transcript make a demand for payment upon the appealing party or that the appealing party be given an opportunity to cure any defalcation. The rule does not contain any exceptions to the directive to dismiss the appeal or give the commissioner discretion to do anything other than dismiss the appeal. I conclude that this rule places an affirmative burden on the appealing party to inquire] regarding the cost and identity of the party who initially paid the cost of the transcript and to reimburse that no-nappealing party within 30 days. Claimant did not do so in this case. An appealing party has had a “day in court” and the case has been decided on the merits. If an appealing party desires to have the case reviewed again by the agency, that party must comply with the rules governing intra-agency appeals.

On judicial review, the district court affirmed the commissioner’s dismissal. On Zieckler’s appeal to this court, she challenges both the commissioner’s interpretation of administrative code rule 876-4.30 and the validity of the rule itself.

II. Interpretation of the Rule.

We review a commissioner’s interpretation of agency rules to determine whether the interpretation is irrational, illogical, or wholly unjustifiable. Iowa Code § 17A.19(10)(i) (2003). Rule 876^.30 clearly states that, if the appealing party does not pay for the transcript within thirty days, the appeal shall be dismissed. There is no “play in the joints” in this rule, as there was in Marovec v. PMX Industries, 693 N.W.2d 779 (Iowa 2005), which involved the commissioner’s interpretation of a rule allowing the commissioner some discretion to dismiss an appeal for failure to file a brief. In contrast to the rule involved in Marovec, rule 876-4.30 allows the commissioner no discretion to impose a sanction less severe than dismissal under the circumstances of this case. We therefore reject Zieckler’s erroneous-interpretation argument.

III. Validity of the Rule.

As we have noted, Zieckler also assails the validity of rule 876-4.30. Generally, we review administrative action to determine if it is “[b]eyond the authority delegated to the agency by any provision of law or in violation of any provision of law,” Iowa Code § 17A.19(10)(6), or is unreasonable, arbitrary, capricious, or an abuse of discretion. Iowa Code § 17A.19(10)(/i )-{n). “In making the determination whether the agency’s action is unreasonable, arbitrary, capricious, or an abuse of discretion, the court ‘[s]hall give appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency.’ ” Marovec, 693 N.W.2d at 782 (quoting Iowa Code § 17A.19(ll)(c)).

The legislature has vested the commissioner with the authority to promulgate rules and procedures to implement Iowa Code chapter 85. Iowa Code § 86.8(1). Pertinent to this case, the legislature has authorized intra-agency appeals and directs that they be taken “as provided by rule.” Iowa Code § 86.24(1).

While courts are required to give deference to the commissioner’s promulgation of rules, that deference is not without limitation. We are required to give only “appropriate” deference under section 17A.19 (11) (c). The question presented here is whether “appropriate deference” will save the agency’s rule that requires the dismissal of an intra-agency appeal as a sanction for failure within thirty days to reimburse a party who paid for a transcript of a workers’ compensation hearing. Zieckler contends the commissioner’s rule 876-4.30 imposes an unreasonable, arbitrary, and capricious penalty because such a failure does not impede the agency’s processing of an appeal. We agree.

Under Iowa Code chapter 17A, an agency’s authority is limited in several respects. A court on judicial review may reverse agency action if substantial rights of the person seeking relief have been prejudiced because the action is “unreasonable, arbitrary, capricious, or an abuse of discretion.” Iowa Code § 17A.19(10)(to ). Section 17A.19(10) identifies several subsets of unreasonable, arbitrary, and capricious agency action. One of these subsets is agency action that is “so grossly disproportionate to the benefits accruing to the public interest from that action that it must necessarily be deemed to lack any foundation in rational agency policy.” See id. § 17A.19(10)(fc); see also Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 69 (1998) (noting paragraphs 17A.19(10) (⅛)-(m) “provide specific examples of agency action that any reviewing court should overturn as unreasonable, arbitrary, capricious, or an abuse of discretion”).

Zieckler has consistently argued before the agency and on judicial review that the commissioner’s adoption of rule 876-4.30 constitutes unreasonable, arbitrary, and capricious agency action. The unmistakable essence of her argument is that the agency’s rule mandating the imposition of the sanction of dismissal for a failure to make reimbursement within thirty days for a hearing transcript is outrageously unreasonable because, as is evidenced by the facts of this case, such a failure does not impede or delay the processing of an appeal or cause any other public detriment. Although Zieckler has not specifically cited section 17A.19(10)(/c) in support of her argument, and she does not specifically employ the words “grossly disproportionate” in her brief on appeal, we believe the substance of her argument adequately implicates that paragraph’s subset of unreasonable, arbitrary, and capricious agency action. We therefore conclude Zieck-ler’s contention that the commissioner’s rule 876-4.30 is an unreasonable, arbitrary, and capricious exercise of agency power gave sufficient notice to the agency, the district court, and this court of the substance of her argument: viz., that the negative impact of the rule is so grossly disproportionate to any resulting benefits accruing to the public, that it must necessarily be deemed to lack any foundation in rational agency policy. See Iowa Code § 17A.19(10)(&).

An agency’s action may be reversed under section 17A.19(10)(A) only if the action is not required by law. Although the commissioner is required by statute to adopt rules to implement the workers’ compensation system, see id. § 86.8(1), the commissioner is not required by law to adopt a rule mandating dismissal of an intra-agen-cy appeal as a sanction for failing within thirty days to reimburse a nonappealing party for the cost of a hearing transcript. We therefore conclude the commissioner’s adoption of a rule such as rule 876-4.30, providing for mandatory dismissal of an appeal under the circumstances of this case, is not “required by law,” and may therefore be reversed under section 17A.19(10)(A).

The facts of this case illustrate the obvious disproportionality between the mandatory dismissal rule’s negative impact on appealing parties and its benefit to the public. Unlike the rule at issue in Maro-vec, rule 876-4.30 is simply a cost-shifting provision that has no effect on the agency’s ability to process the appeal. Thus, the public benefit of rule 876-4.30 rests solely on the fairness of shifting appeal costs to an appealing party during the pendency of an intra-agency appeal. Zieckler was unaware which defendant paid for the transcript or how much was paid for it. When she learned this information she immediately sought to reimburse the defendant who initially paid for the transcript. All the appeal briefs were on file with the commissioner before the payment issue arose. Nevertheless, the mandatory nature of rule 876-4.30 prevented any consideration of Zieckler’s particular circumstances. She lost her right of appeal for a reason having nothing to do with the merits of her appeal or her willingness to bear the initial costs of the transcript. The public benefit of a mandatory dismissal under these circumstances is negligible, while the negative impact on Zieckler is extremely severe. We do not intend to suggest an agency may never mandate dismissal for violation of a procedural rule; however, section 17A.19 (10)(⅛) requires that there be a reasonable proportion between imposition of the ultimate sanction of dismissal and the party’s transgression. Rule 876-4.30 lacks any such proportion.

We conclude the agency’s action in adopting rule 876-4.30 was (1) not required by law; and (2) unreasonable, arbitrary, and capricious because its negative impact is so grossly disproportionate to the benefits accruing to the public interest from the rule. Therefore, rule 876-4.30 lacks adequate foundation in rational agency policy and must be invalidated. Accordingly, we reverse the judgment of the district court and remand to the agency for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

LARSON, Justice

(dissenting).

I dissent. The majority has reached out to decide this case on a theory that the appellant has not raised at any point in the history of the case — from her resistance to the motion to dismiss, through her petition for judicial review, and up to this court.

On appeal to this court, Zieckler complains that

[t]he Commissioner’s actions in dismissing Zieckler’s appeal were unreasonable, arbitrary and capricious, and deprived Zieckler of the opportunity to have her appeal decided on the merits. Moreover, rule 876-I.A.C. 4.30, if interpreted to require dismissal in this case is an unreasonable exercise of the agency’s rule-making authority. The Commissioner’s actions violated Iowa Code § 17A.19, and the dismissal should be reversed and the appeal reinstated.

Zieckler’s complaint that the commissioner’s action “violated Iowa Code § 17A.19” is so general that it gives virtually no guidance to a court. Perhaps Zieckler. intends to argue that the commissioner violated some provision of Iowa Code section 17A.19(10), which lists fourteen grounds for reversing agency action. Her brief does not specify on which of these grounds she relies. The majority, however, fills in the gap by expressly basing its holding on section 17A.19(10)(&), a statute that was not even cited by Zieck-ler. Despite the fact Zieckler does not even mention this section, the majority holds that its application mandates reversal. Under that section, if the action of the agency is “[n]ot required by law and the negative impact ... is ... grossly disproportionate to the benefits accruing to the public,” the action lacks a rational basis. This section helps give meaning to one of the legislature’s stated purposes for the administrative procedure act, which “is to increase the fairness of agencies in their conduct of contested case proceedings.” Iowa Code § 17A.23.

However, this court’s concern for reaching what it perceives to be a fair result in a particular case cannot trump well-established principles of appellate procedure. One of these principles is that we will not “assume a partisan role and undertake the appellant’s research and advocacy.” See Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974); accord In re Det. of Garren, 620 N.W.2d 275, 285 (Iowa 2000); State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999). The rationale for such a self-imposed rule is obvious. If a court fills in the gaps in an appellant’s argument, it skews the judicial review process because it deprives opposing parties, and the district court, of an opportunity to meet the argument. Here, Zieckler does not argue that her right to appeal is grossly disproportionate to the public’s benefit. She does not hint at such a theory. In fact, as already noted, she does not even cite Iowa Code section 17A.19(10)(/c), the section on which the majority relies.

If we allow dissatisfied parties such as Zieckler to take a shotgun approach by claiming simply, as Zieckler does, that the agency’s action was “unreasonable, arbitrary, and capricious” and leave it to a court to fill in the gaps, we will open the floodgates to judicial review proceedings.

I would hold Zieckler to the arguments she actually made in her appeal to this court, not her arguments as supplemented and embellished by the majority. I would, therefore, defer to the commissioner’s rule-making authority and affirm the judgment of the district court.

      . It should be noted that the commissioner recently eliminated the most unreasonable feature of rule 876-4.30 by amending it to read as follows:
      In the event the cost of the transcript has been initially borne by a nonappealing party prior to appeal, the nonappealing party is entitled to reimbursement within 30 days after serving on the appealing party proof of the cost of the transcript. If not so reimbursed, the appeal may be dismissed.
      Iowa Admin. Code r. 876-4.30 (2007) (emphasis added). Accordingly, the infirmity of the rule that requires us to reverse this case' has been eliminated from the rule.


source: Caselaw Access Project

author: APPEL, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellant, v. Dawn Marie NAIL and Joshua Kucera, Appellees.
    No. 06-0410.
    Supreme Court of Iowa.
    Dec. 28, 2007.

      Thomas J. Miller, Attorney General, Kristin Guddall and Darrel L. Mullins, Assistant Attorneys General, J. Patrick White, County Attorney, and Iris Frost, Assistant County Attorney, for appellant.
    John B. Whiston, Iowa City, and Rachel C.B. Antonuccio and Mary T. Northrup, Student Legal Interns, for appellees.
   APPEL, Justice.

In this case, the court is called upon to determine whether Iowa Code section 907.14(1) (2005), which provides for a civil money penalty as a result of a deferred judgment, is constitutional. The defendants argue that the statute is unconstitutionally vague because it does not expressly contain a limit on the amount of penalty assessed. They further allege that the provision violates due process of law by imposing punishment prior to an adjudication of guilt. The district court found the statutory provision constitutionally infirm and refused to enforce it against the appel-lees Nail and Kucera. We granted the State’s discretionary appeal to address these constitutional issues. For the reasons expressed below, we reverse the ruling of the district court and remand the case for further proceedings.

I. Background Facts and Prior Proceedings.

On July 4 and July 16, 2005, respectively, Dawn Nail and Joshua Kucera were arrested for first offense operating a motor vehicle while intoxicated (OWI). Both defendants originally pled not guilty. As part of a plea bargain, the defendants entered written guilty pleas. The written guilty pleas stated that the defendants understood the nature of the charge and knew “the maximum possible penalty and any mandatory minimum penalty therefor” and that the court may enter the maximum sentence provided by law.

Both defendants requested deferred judgments. As part of the plea bargain, the State and the defendants agreed that the defendants “may receive a deferred judgment, self-supervised probation, and must complete the Kirkwood Weekend Program.” The district court accepted the pleas. A hearing was then set for the entry of judgment and sentencing.

Prior to the scheduled hearing, the defendants challenged the potential imposition of a civil penalty as part of a deferred judgment. Iowa Code section 907.14(1) provides:

Upon entry of a deferred judgment pursuant to section 907.3, a defendant shall be assessed a civil penalty of an amount not less than the amount of any criminal fine authorized by law for the offense under section 902.9 or section 903.1.

The defendants argued, among other things, that the civil penalty authorized by section 907.14(1) violated both the United States and the State of Iowa Constitutions because (1) the statute was void for vagueness as it failed to establish a ceiling for potential civil penalties and lacked substantive guidelines or criteria for law enforcement and courts to apply, and (2) the statute imposed a civil penalty prior to an adjudication of guilt, thereby violating due process.

At the beginning of the hearing, the district court proposed separating the granting of a deferred judgment from the imposition of a civil money penalty. The State and the defendants agreed to this approach.

When the court asked for a statement on the issue of granting a deferred judgment, defense counsel asked the court that “part of the guilty plea colloquy be conducted by the Court to make sure that [the defendants are] fully informed about the maximum sentence that would be available if they do not get a deferred.” In response, the district court stated that upon conviction of first offense OWI, there is a minimum jail sentence of forty-eight hours and a maximum jail sentence of one year, a fine of $1000 is assessed, along with a thirty-two percent surcharge and court costs, but no civil money penalty is imposed. After the district court’s statement, the defense counsel advised the court that the defendants wished to maintain their pleas of guilt, which was confirmed by each defendant on the record.

The district court then returned to the issue of whether the defendants should be granted a deferred judgment. The State did not resist deferred judgment in light of the defendants’ lack of prior criminal history and their relatively low levels of intoxication — .093 and .092. Defense counsel further assured the court that the defendants realized that they had each made “a horrible error of judgment” and promised that the court “should not see them again, ever.”

At this point, the district court asked each defendant if they requested a deferred judgment and each answered affirmatively. The court, without objection from the defense, granted deferred judgment in each case. As a condition of the deferred judgment, the court ordered that each defendant be on self-supervised probation, pay a fee to the Department of Corrections for the administration of the program, and complete the Kirkwood Weekend Program. After granting the deferred judgments, the court then proceeded to entertain arguments related to the lawfulness of the civil penalty.

After the hearing, the district court entered an order holding that Iowa Code section 907.14(1) as applied to Nail and Kucera violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The district court found that the statute does not set an upper limit on the civil penalty and that the minimum amount is either $1000 as established by Iowa Code section 321J.2(2)(a )(2) or $250 pursuant to Iowa Code section 903.1. Further, the district court stated that the statute does not indicate whether the amount assessed may be suspended, paid through community service work, or reduced under conditions set forth in chapter 321J. The court rejected the State’s claim that the statute was remedial in nature and designed to recoup the costs of investigating, prosecuting, and administering to defendants who receive deferred judgments. The court further found that the imposition of the civil penalty had the characteristics of a criminal punishment. For these reasons, the court held that Iowa Code section 907.14(1) violated the Due Process Clause of the United States Constitution. We granted the State’s application for discretionary review.

II. Standard of Review.

Review of constitutional claims is de novo. State v. Shanahan, 712 N.W.2d 121, 131 (Iowa 2006).

III. Due Process: Void for Vagueness.

A. Overview of the Void-for-Vagueness Doctrine. The Fourteenth Amendment to the Constitution of the United States provides that “[n] o state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. Similarly, the Iowa Constitution, Article I, section 9 provides that “no person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const, art. I, § 9. This court has generally deemed the federal and state due process clauses to be “ ‘identical in scope, import, and purpose.’ ” In re Guardianship of Hedin, 528 N.W.2d 567, 575 (Iowa 1995) (quoting Bruns v. State, 503 N.W.2d 607, 611 (Iowa 1993)). Neither party has suggested that a due process analysis under the Iowa Constitution should be approached differently than under the parallel provision in the United States Constitution. Therefore, for the purposes of this opinion, we will treat the provisions as identical. Sanchez v. State, 692 N.W.2d 812, 819 (Iowa 2005); Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6 (Iowa 2004) (“[I]t is prudent to delay any consideration of whether a different analysis is appropriate to a case in which this issue was thoroughly briefed and explored.” (citing In re Detention of Garren, 620 N.W.2d 275, 280 n. 1 (Iowa 2000))).

Due process is designed to ensure fundamental fairness in interactions between individuals and the state. Among other things, the Due Process Clause prohibits enforcement of vague statutes under the void-for-vagueness doctrine. There are three generally cited underpinnings of the void-for-vagueness doctrine. First, a statute cannot be so vague that it does not give persons of ordinary understanding fair notice that certain conduct is prohibited. Second, due process requires that statutes provide those clothed with authority sufficient guidance to prevent the exercise of power in an arbitrary or discriminatory fashion. Third, a statute cannot sweep so broadly as to prohibit substantial amounts of constitutionally-protected activities, such as speech protected under the First Amendment. State v. Hunter, 550 N.W.2d 460, 463 (Iowa 1996) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972)), overruled on other grounds by State v. Robinson, 618 N.W.2d 306, 312 (Iowa 2000).

The United States Supreme Court has employed vagueness analysis both in the context of proscribing criminal conduct and in imposing criminal penalties. United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948). The majority of cases in other jurisdictions agree. See State v. Thompson, 197 Conn. 67, 495 A.2d 1054, 1061 (1985); Commonwealth v. Gagnon, 387 Mass. 567, 441 N.E.2d 753, 755 (1982); Duquette v. Warden, New Hampshire State Prison, 154 N.H. 737, 919 A.2d 767, 773 (2007); State v. Manzie, 168 N.J. 113, 773 A.2d 659, 661 (2001); State v. Egbert, 748 P.2d 558, 559 (Utah 1987); Nowack v. State, 774 P.2d 561, 564 (Wyo.1989). But see State v. Booth, 347 So.2d 241, 243 (La.1977). We hold, therefore, that the void-for-vagueness doctrine applies to legislation establishing civil or criminal sanctions. State v. Powers, 278 N.W.2d 26, 29 (Iowa 1979).

In order to provide due deference to our legislature, this court has applied what has been called avoidance theory in the context of due process challenges to legislative acts. Stuart Buck & Mark L. Rienzi, Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitutional Challenges to Uninterpreted Statutes, 2002 Utah L.Rev. 381, 391-92 (2002); Adrian Vermeule, Saving Constructions, 85 Geo. L.J.1945, 1948-49 (1997). For example, in determining whether a statute is unconstitutionally vague, this court presumes the statute is constitutional and gives “ ‘any reasonable construction’ ” to uphold it. State v. Millsap, 704 N.W.2d 426, 436 (Iowa 2005) (quoting Hunter, 550 N.W.2d at 462) (emphasis added).

Conversely stated, challengers to a statute must refute “ ‘every reasonable basis’ ” upon which a statute might be upheld. State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005) (quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002)) (emphasis added). Where a state “statute ‘can be made constitutionally definite by a reasonable construction, ... this Court is under a duty to give the statute that construction.’ ” State v. Williams, 238 N.W.2d 302, 306 (Iowa 1976) (quoting United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996-97 (1954)). Avoidance theory, moreover, applies to the interpretation as well as the construction of statutes. Norman Singer, Statutes and Statutory Construction § 45:04 (6th ed.2000) (noting that the distinction between interpretation and construction is not meaningful).

The underpinning of avoidance theory is that a definitive judicial gloss can save a statute from void-for-vagueness infirmity. The United States Supreme Court has repeatedly made clear that vagueness challenges are determined on the basis of statutes and pertinent case law rather than the subjective expectations of particular defendants based on incomplete legal knowledge. See, e.g., Kolender v. Lawson, 461 U.S. 352, 370, 103 S.Ct. 1855, 1865, 75 L.Ed.2d 903, 918 (1983); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 1191 n. 5, 71 L.Ed.2d 362, 369 n. 5 (1982); Bouie v. City of Columbia, 378 U.S. 347, 355 n. 5, 84 S.Ct. 1697, 1703 n. 5, 12 L.Ed.2d 894, 901 n. 5 (1964).

Although the incorporation of code books and case law in the evaluation of fair notice has been criticized on the ground that ordinary citizens lack access to them, see John Calvin Jefferies Jr., Legality, Vagueness, and Construction of Penal Statutes, 71 Va. L.Rev. 189, 207-08 (1985), United States Supreme Court holdings that vagueness may be cured through judicial narrowing have been widely accepted and characterized as settled law. See id. at 207; Andrew E. Goldsmith, The Voidr-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J.Crim. L. 279, 295 (2003) (noting judicial narrowing of statute as cure to vagueness problems); Robert Batey, Vagueness and the Construction of Criminal Statutes — Balancing Acts, 5 Va. J. Soc. Pol’y & L. 1, 5 (1997) (stating that it is settled law that judicial glosses on criminal statute can “cure” vagueness); Note, The Voidr-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L.Rev. 67, 73 (1960) (observing that the Supreme Court “invariably” allows clarifying gloss of state courts to penal statutes in vagueness context).

A statute may be saved from constitutional deficiency, moreover, if its meaning is fairly ascertainable by reference to other similar statutes or other statutes related to the same subject matter. Branch v. Smith, 538 U.S. 254, 281, 123 S.Ct. 1429, 1445, 155 L.Ed.2d 407, 432-33 (2003); State v. Iowa Dist. Ct., 616 N.W.2d 575, 581 (Iowa 2000) [hereinafter State ]; Powers, 278 N.W.2d at 29. This reference to other related statutes is commonly referred to as the interpretation or construction of a statute in pari materia.

The in pari materia approach is especially appropriate in the area of criminal law, where our legislature has established a number of code chapters with highly detailed, interconnecting provisions. When considering an incremental modification, the legislature sometimes adopts relatively cryptic measures that can be fully understood only in the context of the web of preexisting statutes. While such statutes may occasionally be imperfectly drawn, a statute which is not a paradigm of legislative drafting does not necessarily pose a constitutional problem if any inherent difficulties are resolved through judicial interpretation. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584, 590 (1972); Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244, 246 (1976).

In light of our recognition of the nature and realities of the legislative process, we have repeatedly emphasized that sentencing provisions in Iowa’s criminal code must be read in pari materia with other sentencing provisions found elsewhere in the code. State, 616 N.W.2d at 581; State v. Carstens, 594 N.W.2d 436, 437 (Iowa 1999); State v. Kostman, 585 N.W.2d 209, 212 (Iowa 1998); State v. Daniel, 574 N.W.2d 333, 335 (Iowa 1998); State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990); State v. Link, 341 N.W.2d 738 (Iowa 1983), superseded by statute as stated in Jenney v. Iowa Dist. Ct., 456 N.W.2d 921, 923 (Iowa 1990); State v. Hildebrand, 280 N.W.2d 393, 397 (Iowa 1979). Through such interpretation, we necessarily operate on the objective assumption that the legislature strives to create a symmetrical and harmonious system of laws. State, 616 N.W.2d at 581; Fitzgerald v. State, 220 Iowa 547, 552, 260 N.W. 681, 683-84 (1935).

B. Application of Void-for-Vagueness Principles: Is there a Ceiling for Civil Penalties Imposed Pursuant to Iowa Code Section 907.14(1)? In examining the language of section 907.14(1), the legislature plainly established a floor for civil penalties in deferred judgment proceedings, but did not expressly create a ceiling. As a result, Nail and Kucera claim that the statute provides no guidance of any kind for a district court judge, who would be empowered to impose a potentially limitless civil money penalty for even minor crimes.

The State does not directly contest the proposition that a statute that creates an unlimited civil penalty provision would violate due process. Instead, the State asserts that a cardinal rule of statutory construction is that a statute should not be interpreted or construed to create absurd results. State v. Pickett, 671 N.W.2d 866, 870 (Iowa 2003). It would be absurd, according to the State, to read section 907.14(1) as authorizing the court to impose a civil penalty of literally any amount. In order to avoid this potentially absurd result, the State argues that the reference in section 907.14(1) to fines “authorized by law for the offense under sections 902.9 or section 903.1” establishes an upper limit by implication.

We do not agree that the express language found in the narrow confines of section 907.14(1) establishes a ceiling for civil penalties. The statutory language itself — “a defendant shall be assessed a civil penalty of an amount not less than the amount of any criminal fine authorized by law for the offense under section 902.9 or section 903.1” — simply establishes a floor for civil penalties, not a ceiling.

But the analysis does not end at this point. While the language of section 907.14(1) considered in isolation does not expressly establish a ceiling, our cases dictate that this code provision must be read in pari materia with the system of laws that make up our criminal law to produce a coherent whole. See, e.g., Byers, 456 N.W.2d at 919; Hildebrand, 280 N.W.2d at 397. While the penalties imposed under our deferred judgment statute may be only quasi-criminal rather than criminal in nature, the statute itself is part of the system of laws that govern criminal conduct generally and must be considered in this larger context. State v. McSorley, 549 N.W.2d 807, 809 (Iowa 1996) (noting that statutes related to same subject matter or to closely allied subject matter must be considered together in light of common purposes and intent); Wonder Life Co. v. Liddy, 207 N.W.2d 27, 32 (Iowa 1973) (same).

The concept of reading a penalty statute in para materia with other criminal statutes has been utilized by this court to provide a statutory floor where the provision expressly created only a ceiling. For example, in Link, 341 N.W.2d at 738, we considered the meaning of Iowa Code section 908.11. This provision stated that upon the revocation of probation, the district court was empowered to sentence the defendant to “the sentence [previously] imposed or any lesser sentence.” Id. at 739. This provision created a ceiling, namely, the sentence previously imposed, but no floor. Read literally, the phrase “any lesser sentence” could be construed as authorizing the district court to impose a sentence less than the relevant statutory minimum or even no sentence at all. Id. at 740.

This court in Link rejected the literalist approach, holding that upon revocation of probation, the sentence must be within the range of sentences that could have been imposed in the underlying criminal proceeding. Id. Link stands for the proposition, therefore, that where the words of a particular sentencing statute establish a ceiling but no floor, the statute should not be read in isolation, but should be read in context with other related sentencing provisions of the criminal code. Id.

While the legislature in Link enacted a provision with a ceiling but no expressly stated floor, in this case the legislature enacted a statute with a floor but no expressly stated ceiling. For purposes of in pari materia analysis, this is a distinction without a difference. We note that other courts have used in pari materia analysis to establish ceilings for criminal sanctions where specific statutes established only penalty floors. For example, in Commonwealth v. Bell, 537 Pa. 558, 645 A.2d 211, 216-17 (1994), the court held that a statute establishing a three-year minimum sentence, but no maximum sentence, was to be read together with a general criminal statute establishing a maximum penalty of five years. Similarly, in United States v. Bruney, 866 F.Supp. 874, 878 (D.V.I.1994), the court held that a catch-all sentencing provision provided a maximum sentence for a specific statute that failed to provide any limitation on the maximum penalty.

In this case, the issue is made awkward by the fact that the legislature expressly incorporated Iowa Code sections 902.9 and 903.1in establishing a floor but did not make a parallel reference to the statutes to establish a ceiling. Where the legislature has expressly cited sections 902.9 and 903.1to establish a floor, but has declined to reference the cited statutes to create a ceiling, it can be argued that a court has no business rewriting the statute. According to the defense, the legislature considered the provisions of sections 902.9 and 903.1and expressly chose to incorporate them for purposes of creating a floor and purposefully failed to reference them to create a ceiling. Arguably, this court should have no role in upsetting this legislative choice. Zomer v. West River Farms, Inc., 666 N.W.2d 130, 133 (Iowa 2003); State v. Wedelstedt, 213 N.W.2d 652, 656-57 (Iowa 1973).

On the other hand, if we fail to adopt an in pari materia analysis to impose a ceiling on civil penalties under section 907.14(1), we violate the rule of statutory construction that a statute must be interpreted in a fashion that avoids unreasonable or absurd results inconsistent with legislative intent. See Iowa Code § 4.4(3) (noting that the legislature is presumed to intend “a just and reasonable result”); Pickett, 671 N.W.2d at 870; State, 616 N.W.2d at 589. It would be absurd to suggest that the legislature intended to vest unlimited discretion in a district court to establish a civil money penalty. Indeed, even the notion that the legislature intended to allow a district court to impose a civil penalty in excess of the potential criminal penalty is wholly illogical and would introduce unintentional distortions into the criminal justice system. State, 616 N.W.2d at 581 (rejecting statutory interpretation that would have treated younger offenders more harshly than older offenders for same crime). Deferred judgments are reserved for those defendants deserving a second chance.

We are convinced that the legislature, despite its clumsy wording, did not intend the absurd result of allowing district courts to impose unlimited civil penalties in section 907.14(1). Instead, objectively viewed, we believe that the enactment of section 907.14(1) was an incremental legislative act which must be read in context of the ceiling established by Iowa Code sections 902.9 and 903.1 even though the legislature did not expressly incorporate the ceiling into the statute.

With this interpretation, we give the statute a reasonable, contextual interpretation that is workable, promotes symmetry, and which therefore best manifests legislative intent. State, 616 N.W.2d at 581. Further, our approach gives life to the notion that a declaration of unconstitutionality should be avoided where possible through any reasonable statutory interpretation. Hernandez-Lopez, 639 N.W.2d at 233.

Under our interpretation, the provisions of Iowa Code sections 902.9 and 903.1 apply to create a ceiling for civil penalties that may be imposed when judgments are deferred. For serious misdemeanors like first offense drunk driving, the range of permissible criminal fines at the time of the convictions of Nail and Kucera was between $250 and $1500. This range, however, applies only “if a specific penalty is not provided for.” Iowa Code § 903.1. The Iowa legislature has enacted a specific penalty for first time OWI, namely, a $1000 fine. Id. § 321J.2(2)(a )(2). As a result, the range of potential fines for serious misdemeanors under section 903.1 has no application. Instead, the penalty authorized by law under Iowa Code section 907.14(1) for first offense OWI is the “specific penalty ... provided for” in Iowa Code section 321J.2(2)(a )(2)-$1000.

We also hold that because Iowa Code section 907.14(1) must be read in the context of our body of criminal law, the general sentencing provisions of criminal law in Iowa Code section 901.5 apply. That provision vests the district court with wide discretion in and general criteria for imposing sentences. Hildebrand, 280 N.W.2d at 396. The range of sentencing discretion under section 901.5 includes suspension of half the $1000 fine as provided in Iowa Code section 321J.2(2)(a )(2), requiring a defendant to perform community service in lieu of the fíne under Iowa Code section 909.3A, and allowing payments to be made in installments under Iowa Code section 909.3. In other words, the discretionary tools available to the district court in the imposition of a civil penalty pursuant to a deferred judgment under section 907.14 are coextensive with those of the court in imposing a criminal fíne under section 901.5 because the civil money penalty under section 907.14(1) is imposed “pursuant to Iowa Code section 901.5.” Carstens, 594 N.W.2d at 437 (holding that section 902.9 sets forth general sentencing parameters, but must be read in pari materia with specific sentencing provisions found elsewhere in the Code). Any civil penalty that is imposed under section 907.14 is thus subject to other provisions of the criminal code related to the imposition of fines. State, 616 N.W.2d at 581 (holding that statute must be interpreted eonsis-tently with other statutes concerning the same or related subjects).

Given our approach to the statute, we next determine whether the statute is vague as applied to Nail and Kucera. We conclude the statute, as we have construed it, satisfies due process. Because the criminal law sanction for first offense OWI includes a $1000 fine, subject to discretionary reduction by the district court, our construction of the deferred judgment statute, as incorporating an identical monetary sanction, eliminates any potential problem of fair notice to a person of ordinary intelligence. Further, by restricting the range of sentencing options, the second prong of due process attack related to the potential of arbitrary or discriminatory enforcement has also been eliminated. Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S.Ct. 2348, 2358, 147 L.Ed.2d 435, 449 (2000); see, e.g., Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337, 1341 (1949) (“[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” (Emphasis added.)).

In sum, Iowa Code section 907.14(1), as construed in this opinion and applied in this case, does not give rise to a due process claim under either the Iowa or United States Constitutions.

IV. Due Process: Punishment Prior to Adjudication of Guilt.

Nail and Kueera launch a second due process attack, asserting that a civil penalty under section 907.14(1) cannot be imposed prior to an adjudication of guilt. In briefing, the parties engage in a battle at close quarters regarding whether the civil penalty in section 907.14(1) is criminal or civil in nature. Specifically, the State contends that the purpose of the “civil penalty” is to recover costs of investigating, prosecuting, and administering deferred judgments. Nail and Kueera contend that the “civil penalty” is primarily punitive in nature. See Clinton Cmty. Sch. Dist. v. Anderson, 322 N.W.2d 73, 75-76 (Iowa 1982) (discussing whether a “civil penalty” is civil or criminal in nature).

We believe that the parties have focused on the wrong issue. We recognize that generally speaking, due process requires that criminal penalties be imposed only after an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447, 466 n. 16 (1979); Hernandez-Lopez, 639 N.W.2d at 237 n. 5. The foundation of this requirement is the presumption of innocence. It would be fundamentally unfair to impose criminal penalties in a contested matter until the matter of guilt or innocence is determined. These are bedrock principles of constitutional law. We further recognize that a plea bargain and the grant of a deferred judgment are not ordinarily considered adjudications of guilt— the prosecution not being complete until a final judgment has been entered. State v. Anderson, 246 N.W.2d 277, 279 (Iowa 1976); State v. Farmer, 234 N.W.2d 89, 92 (Iowa 1975).

In this case, however, while there may be no adjudication of guilt, there has been an admission of guilt. Nail and Kuc-era have filed written guilty pleas and personally affirmed their guilt in open court. There is no question of guilt or innocence to be adjudicated. Any due process claim rooted in the presumption of innocence evaporates in light of their guilty pleas.

Further, the State is not seeking to force a deferred judgment on these defendants. In this case, deferred judgment offers the defendants the significant benefit of avoiding inevitable criminal conviction. The defendants, moreover, specifically requested that the court grant them this benefit.

It is well-settled that a defendant who pleads guilty surrenders basic constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243 n. 5, 89 S.Ct. 1709, 1712 n. 5, 23 L.Ed.2d 274, 279-80 n. 5 (1969). Where the defendants have admitted guilt and themselves requested a deferred judgment in order to avoid an adjudication of guilt, it cannot be maintained that an adjudication of the underlying criminal offense is a prerequisite to the imposition of a penalty, regardless, of whether the penalty is considered civil or criminal.

A defendant who voluntarily seeks a deferred judgment to avoid a final criminal adjudication cannot object to the lack of one when statutory sanctions under a deferred judgment are imposed. As a result, we hold that the imposition of a civil penalty for deferred judgments does not affront fundamental fairness notions inherent in the due process guarantees of the Iowa and United States Constitutions.

V. Conclusion.

The opinion of the district court holding Iowa Code section 907.14(1) unconstitutional is reversed. The case is remanded to the district court for further proceedings.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . In brief, Nail and Kucera allege that the legislature deliberately chose not to cap the amount of the civil penalty. We disagree. Prior to the passage of Iowa Code section 907.14(1), an amendment was introduced which set the civil penalty floor at one hundred dollars and ceiling at one thousand dollars for all crimes regardless of the permissible fines available for criminal convictions. Additionally, this proposed across-the-board limitation made the imposition of the civil penalty permissive rather than mandatory in the deferred judgment setting. S. Amend. 3103A, 81st G.A., Reg. Sess. (Iowa 2005) (proposed amendment to House File 682). Thus, the proposed amendment stood for much different propositions than that advanced by the defendants in this case. In any event, these portions of the amendment were withdrawn prior to a vote. Id. Due to the nature of the proposed amendment as well as the failure of the legislature to vote upon it, it is not dispos-itive, or even illustrative, of the legislature’s intent regarding a civil penalty ceiling. See Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501, 108 S.Ct. 1350, 1354, 99 L.Ed.2d 582, 589 (1988) ("But unenacted approvals, beliefs, and desires are not laws.”); Johnson v. Transp. Agency of Santa Clara County, California, 480 U.S. 616, 671-72, 107 S.Ct. 1442, 1473, 94 L.Ed.2d 615, 656 (1987) (Scalia, J., dissenting) (warning that courts risk "ignorfing] rudimentary principles of political science [when they] draw any conclusions regarding [legislative] intent from the failure to enact legislation.”).

      . Nail and Kucera further allege that plea bargains, where there is a potential for deferred judgment, cannot be knowingly and voluntarily entered as the potential amount of civil penalty under section 907.14(1) is uncertain. While our construction of the statute eliminates any vagueness problem in future cases, State v. Speck, 242 N.W.2d 287, 293 (Iowa 1976), there might be an issue as to whether our decision should be retroactively applied to defeat a challenge to the validity of Nail's and Kucera's guilty pleas. Nail and Kucera, however, requested the deferred judgment and then agreed at the district court hearing to separate the issue of granting a deferred judgment from their challenge to the civil penalty provision of Iowa Code section 907.14(1). Further, in the colloquy before the district court, they were clearly informed that the criminal penalty for first offense driving a motor vehicle while intoxicated included a $1000 fine. Under these circumstances, the suggestion that the guilty pleas were involuntary has a hollow ring.

      . We note that below, Nail and Kueera alleged that a double jeopardy-excessive fines issue potentially lurked in the shadows of this case. They claim that if a deferred judgment is subsequently revoked after the payment of a civil money penalty, the State could seek to impose the maximum fine authorized by law in addition to the civil penalty already collected. As a result, Nail and Kucera argue, the cumulative payments made by a defendant could exceed the maximum penalty established by the legislature for the offense. Nail and Kucera, however, have not had their deferred judgments revoked and, as a result, the issue is not ripe for review. Moreover, the Iowa legislature has amended Iowa Code section 908.11(5), which now reduces the fine in a revoked deferred judgment by the amount of the civil penalty previously assessed. 2007 Iowa Acts ch. 180, § 12. As a result, the issue is moot without the likelihood of repetition and is not addressed in this opinion.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. John Thomas FINDERS, Appellant.
    No. 06-1080.
    Supreme Court of Iowa.
    Jan. 11, 2008.

      Darrell G. Meyer, Marshalltown, for appellant.
    Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, and Jennifer Miller, County Attorney, for appellee.
   STREIT, Justice.

John Finders was convicted of a sexual offense against a minor. Subsequently, the Iowa legislature enacted a law prohibiting convicted sex offenders, whose victims were minors, from living within two thousand feet of a school or child care facility. Initially, Finders was exempt from the law under the “grandfather” provision of the statute. After he moved to a new home, he was convicted of violating the two thousand foot rule. Finders appealed, arguing the grandfather provision should be interpreted to allow convicted sex offenders to move within a restricted zone. Because we find the grandfather provision exempts an individual from the two thousand foot rule only as long as he maintains the residence he had prior to the enactment of the law, we affirm.

I. Facts and Prior Proceedings.

In 1999, John Finders was convicted of sexual exploitation by a counselor in violation of Iowa Code section 709.15 (2005). His victim was under the age of eighteen years. As a result of the conviction, Finders was subject to the registration requirements found in Iowa Code chapter 692A. Prior to July 1, 2002, Finders established a residence at 405 South Sixth Street in Marshalltown, Iowa, and properly registered with the sheriff in Marshall County. In 2005, Finders moved to 406 West Boone Street, which is also in Marshalltown. He registered his change of address with the sheriff.

In September 2005, the Marshalltown police department served Finders with written notice that residing at 406 West Boone Street was in violation of residency restrictions found in Iowa Code section 692A.2A (prohibiting a person who has committed a criminal offense against a minor from residing within two thousand feet of child care facilities and schools). In April 2006, Finders was charged with the crime of violating the sex offender residency restrictions. See Iowa Code § 692A.2A(2), (3). He filed a motion to dismiss the trial information arguing the grandfather provision of the two thousand foot rule allowed him to move within a restricted zone without penalty. See id. § 692A.2A(4)(c). The district court overruled the motion. Finders waived his right to a jury. He was found guilty after a trial on the minutes of testimony. The district court sentenced him to a suspended prison term of two years.

Finders appealed, arguing the district court should have granted his motion to dismiss. For the reasons that follow, we affirm the district court.

II. Scope of Review.

We review a district court’s ruling on a motion to dismiss for errors at law. State v. Gonzalez, 718 N.W.2d 304, 307 (Iowa 2006). We accept as true the facts alleged by the State in the trial information and minutes of testimony. Id. We will reverse the district court’s denial of the motion to dismiss if the facts the State has alleged do not constitute a crime as a matter of law. See id.

III. Merits.

Finders was convicted of a crime which requires him to comply with Iowa’s sex offender registry. See Iowa Code § 692A.3. Additionally, Finders is subject to the residency restrictions found in Iowa Code section 692A.2A because his victim was a minor. Iowa Code section 692A.2A(2) states “[a] person shall not reside within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility.” However, a person residing within two thousand feet of a school or child care facility does not violate this section if “[t]he person has established a residence prior to July 1, 2002.” Id. § 692A.2A(4)(c). According to the parties, the crux of this case is whether it is the person or the address that is “grandfathered” in a restricted zone.

When we interpret a criminal statute, our goal “is to ascertain legislative intent in order, if possible, to give it effect.” State v. Conley, 222 N.W.2d 501, 502 (Iowa 1974). “We consider the object sought to be accomplished and the evil sought to be remedied, and seek a reasonable interpretation that will best affect the legislative purpose and avoid absurd results.” State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990) (citing State v. Bessenecker, 404 N.W.2d 134, 137 (Iowa 1987)). “‘When a statute’s language is clear, we look no further for meaning than its express terms.’ ” State v. Kamber, 737 N.W.2d 297, 298-99 (Iowa 2007) (quoting State v. Beach, 630 N.W.2d 598, 600 (Iowa 2001)). If a criminal statute is ambiguous, we resolve any doubt in favor of the accused. State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981). Nevertheless, criminal statutes “ ‘are not to be construed so strictly as to defeat the obvious intention of the Legislature.’ ” State v. Nelson, 178 N.W.2d 434, 437 (Iowa 1970) (quoting United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37, 42 (1820)); accord State v. Hagedorn, 679 N.W.2d 666, 669 (Iowa 2004) (“[Although criminal statutes are to be strictly construed in favor of the accused, ‘they must be construed reasonably and in such a way as to not defeat their plain purpose.’ ” (quoting State v. Peck, 539 N.W.2d 170, 173 (Iowa 1995))).

Both parties contend the grandfather provision, section 692A.2A(4)(c), is ambiguous. A statute is ambiguous if it is “capable of being understood in two or more possible ... ways.” Merriam-Webster’s Collegiate Dictionary 36 (10th ed.2002). Section 692A.2A(4)(c) states a person does not violate the two thousand foot rule if “[t]he person has established a residence prior to July 1, 2002.” Finders argues the statute emphasizes the “person” rather than the “residence” and thus should be interpreted to allow a person who established a residence in a restricted zone before July 1, 2002 to move within the restricted zone without penalty. The State, on the other hand, argues the statute should be interpreted to mean a person loses his exemption under Iowa Code section 692A.2A(4)(c) when he moves to a different residence.

While the grandfather provision is not a model of clarity, we do not find it ambiguous. The provision refers to “a residence,” which is a specific place. If the legislature wanted to give a sex offender the discretion to move within a zone, it would have simply required the sex offender to establish “residency” or “any residence” in the zone prior to the law’s effective date. Instead, the grandfather provision only applies to a sex offender living in a residence established prior to July 1, 2002. If a sex offender moves to a new residence after July 1, 2002, the grandfather provision plainly does not apply.

Even if we were to accept the parties’ premise that the statute is ambiguous, we would not interpret the grandfather clause in contradiction to the legislature’s obvious intent. We have previously said the clear purpose of chapter 692A is to reduce the high risk of recidivism posed by sex offenders. State v. Seering, 701 N.W.2d 655, 665 (Iowa 2005); see also Doe v. Miller, 405 F.3d 700, 716 (8th Cir.2005) (recognizing the purpose of the two thousand foot rule is to limit the frequency of contact between sex offenders and areas where children are located in order to minimize the risk of reoffense).

Finders argues the legislature created the grandfather provision in order to cap the population of sex offenders living within two thousand feet of a school or day care facility. According to Finders, interpreting section 692A.2A(4)(c) to allow a sex offender who had established a residence prior to July 1, 2002 to move within the restricted zone is consistent with this intent. The fallacy of this argument stems from Finders’ misunderstanding of the legislature’s intent. With respect to the grandfather clause, we believe the chief concern of the legislature was to avoid the harsh effect of the retroactive application of the two thousand foot rule. As the district court said, “[t]he Iowa General Assembly, in enacting the grandfather provision at issue here apparently recognized the inequity in forcing a registered sex offender who had established a residence prior to the enactment of the residency restriction law to relocate when, prior to the enactment of the law, he was considered to be in compliance with the law.”

In interpreting section 692A.2A(4)(e) we try to effectuate the purposes of both the two thousand foot rule and the grandfather provision. The two thousand foot rule was intended to prevent sex offenders from living near schools and child care facilities. Although the grandfather provision allows some sex offenders to live in restricted zones, their numbers will reduce by attrition (as the sex offenders die or move out of the zone) until there are no sex offenders living within these areas. We cannot imagine the legislature intended to slow the rate of attrition by allowing sex offenders to move within a restricted zone. Moreover, due to the overlapping of zones, Finders’ interpretation of the statute would presumably allow a sex offender to move almost anywhere within some communities. See Doe, 405 F.3d at 724 (Melloy, J., concurring in part and dissenting in part) (“In larger cities such as Des Moines and Iowa City, the maps show that the two thousand foot circles cover virtually the entire city area.... In smaller towns that have a school or child care facility, the entire town is often engulfed by the excluded area.”). If the exemption applies to the person rather than the address, a sex offender could move out of a zone and then return with impunity. We will not interpret section 692A.2A(4)(c) to allow such an absurd result. All sex offenders are presumed to be on notice of the two thousand foot rule. Iowa Code § 701.6. Thus, it is not unfair to require a registered sex offender to comply with the rule once he establishes a new residence.

IY. Conclusion.

Section 692A.2A(4)(c) allows a sex offender who established a residence in a restricted zone prior to July 1, 2002 to remain in that residence in perpetuity. It does not allow that person to establish a new residence within the restricted zone without violating the statute. The district court properly denied Finders’ motion to dismiss.

AFFIRMED.


author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellee, v. Nathanial Paul McKINNEY, Appellant.
    No. 06-0775.
    Supreme Court of Iowa.
    Jan. 11, 2008.

      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Kasey E. Wadding, County Attorney, for appellee.
   WIGGINS, Justice.

In this appeal, Nathanial P. McKinney requests us to review the district court’s order fixing his material witness fee at $40 for each day he was confined. Because we find the amount of McKinney’s fee did not constitute involuntary servitude under the United States and Iowa Constitutions, and the district court did not abuse its discretion when it set the amount of the fee, we annul the writ of certiorari.

I. Background Facts and Proceedings.

Pursuant to a warrant, the State arrested and confined McKinney as a material witness to the murder investigation of his father. The State asserted McKinney’s confinement was necessary based on information that he was planning to leave Iowa, making him unavailable for service of a subpoena. The district court set a $150,000 cash-only bond. Despite McKinney’s arguments that his bond was excessive, the court continued it.

The court confined McKinney as a material witness for fifty-three days before the court ordered his release. McKinney was not asked to testify during his confinement. He filed an application for material witness fees pursuant to Iowa Code section 815.6 (2005). He argued the court should award a fee equal to the current minimum wage rate for each hour he was confined. The court rejected McKinney’s argument and granted him a $40 per day fee. McKinney filed a notice of appeal.

II. Nature of Appellate Review.

The State alleges McKinney should have sought appeal through a petition for writ of certiorari. We agree.

Iowa Code section 814.6 grants criminal defendants the right to a direct appeal. Iowa Code § 814.6. The order granting McKinney fees is not an appealable order under section 814.6 because McKinney is not a defendant. See Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 793 (Iowa 2001) (holding the challenger could not bring a direct appeal under section 814.6 because he was a mere suspect and not a defendant “accused of or charged with a crime”).

Section 815.6, the statute governing material witness fees, is in the code of criminal procedure; thus, the rules governing civil appeals do not govern McKinney’s appeal either. See Iowa Code § 801.1 (providing chapter 815 is part of, and may be cited as, the “Iowa Code of Criminal Procedure ”); see also Bousman, 630 N.W.2d at 793 (holding proceedings brought under section 801.1 are not civil in nature). However, McKinney is not left without a remedy just because his claim does not fall under the statutes or rules governing criminal or civil appeals. Id.

We have “constitutional powers to issue writs to, and exercise supervisory and administrative control over, other judicial tribunals.” State v. Davis, 493 N.W.2d 820, 822 (Iowa 1992). Certiorari is “particularly appropriate ‘where the lower court’s jurisdiction or the legality of its acts is challenged exclusively on law or constitutional issues.’ ” Bousman, 630 N.W.2d at 794 (quoting McKeever v. Gerard, 368 N.W.2d 116, 119 (1985)). This court has found illegality to exist when the court’s ruling lacks “ ‘substantial evidentiary support or when the court has not applied the proper rule of law.’ ” Id. (quoting Allen v. Iowa Dist Ct., 582 N.W.2d 506, 508 (Iowa 1998)). McKinney challenges both the legality and the constitutionality of the district court’s fee award.

There are two functions to certiora-ri: (1) “the avoidance of unnecessary litigation”; and (2) “the provision of a method of review when no other means are available.” McKeever, 368 N.W.2d at 118. McKinney is not entitled to a direct appeal; therefore, a petition for writ of cer-tiorari is his only opportunity for appellate review.

Although McKinney did not initially petition for certiorari, this court has the authority to treat an improperly filed appeal “as though the proper form of review had been sought.” Bousman, 630 N.W.2d at 793. Accordingly, we will treat McKinney’s notice of appeal as a petition for certiorari, grant the petition, and proceed to decide the merits of his appeal.

III. Analysis.

The only issue McKinney raises on appeal is whether the district court erred by failing to grant his request for a witness fee equal to the statutory minimum wage rate. He argues the court’s failure to do so violates the prohibitions against involuntary servitude in both the United States and Iowa Constitutions.

The statute providing fees for material witnesses states, “[p]ersons confined as material witnesses shall, for each day of confinement, receive such fees as are set by the district court.” Iowa Code § 815.6. The prohibition against involuntary servitude in the Thirteenth Amendment to the United States Constitution provides, “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const, amend. XIII, § 1. Iowa’s constitution states, “[t]here shall be no slavery in this State; nor shall there be involuntary servitude, unless for the punishment of crime.” Iowa Const, art. 1, § 28. Although the language of both constitutions is similar, interpretations of the Thirteenth Amendment are not binding on this court when a litigant asks us to determine the constitutionality of Iowa statutes challenged under our constitution. See State v. Bower, 725 N.W.2d 435, 441 (Iowa 2006) (discussing the same concept in a due process context). However, because McKinney has not given us any reason to interpret the federal and Iowa involuntary servitude prohibitions differently, our discussion of the Thirteenth Amendment is equally applicable to McKinney’s Iowa constitutional claim.

One reason the American system of justice works so well is because laypersons participate in the process. Every person has a public duty to provide evidence regardless of the financial burden it may create. Hurtado v. United States, 410 U.S. 578, 589, 93 S.Ct. 1157, 1164, 35 L.Ed.2d 508, 518 (1973). This principle applies even if the court is required to confine a witness under a material witness statute. Id. No matter how onerous the duty to testify may be, it is necessary to the administration of justice under our system of government as established by the Constitution. Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979, 983 (1919). The witness’s personal sacrifice is one of the necessary contributions a person makes for the welfare of the public. Id.

The prohibition against involuntary servitude in the Thirteenth Amendment does not apply when an individual owes a public duty to provide evidence in a court of law. Hurtado, 410 U.S. at 589 n. 11, 93 S.Ct. at 1164 n. 11, 35 L.Ed.2d at 519 n. 11. Courts have upheld the constitutionality of a statute providing for insignificant material witness fees when the witness attacked the statute on involuntary servitude grounds. See id. (upholding a statute awarding a one dollar per day witness fee for a confined material witness). Compelling a person to perform his or her civic duty to testify in a court of law, even under threat of contempt or criminal sanctions, does not violate the prohibition against involuntary servitude. United States v. Kozminski, 487 U.S. 931, 943-44, 108 S.Ct. 2751, 2760, 101 L.Ed.2d 788, 805 (1988). Accordingly, there is no merit to McKinney’s claim that the payment he received from the State for being incarcerated as a material witness was so low as to constitute involuntary servitude under the United States and Iowa Constitutions.

At the time of McKinney’s confinement, our legislature had enacted various fees to be paid to laypersons who participate in the judicial system. The legislature set jury fees at $10 per day for each day of service. Iowa Code § 607A.8. In addition to the jury fee, a juror is also entitled to be reimbursed for travel and parking expenses. Id.

The legislature set ordinary witness fees at $10 for each full day and $5 for each attendance less than a full day. Id. § 622.69. The legislature also requires an ordinary witness to be reimbursed for mileage. Id. Expert witnesses can receive up to $160 per day. Id. § 622.72.

The jury, ordinary witness, and expert witness fees set by the legislature, are not high enough to reflect a legislative intent to pay jurors or witnesses a wage for services rendered. Rather, the legislature enacted these fees to lessen the financial burden on jurors or witnesses called to fulfill their public duty.

Likewise, state legislatures have enacted fees for material witnesses to protect them from the extreme financial burden they may incur during confinement. Ronald L. Carlson & Mark S. Vogel, Material Witness and Material Injustice, 68 Wash. U. L.Q. 1, 24 (1980). When Iowa enacted the fee provision for confined material witnesses, the legislature did not set a fixed amount for the fee. Iowa Code § 815.6. The statute leaves the amount of the fee to the district court’s discretion. Id. Just as the legislature did not intend the jury, ordinary witness, or expert witness fees to be a wage for services rendered, the legislature did not intend the material witness fee to be a wage. Accordingly, the court must analyze the effect of confinement on the material witness’s financial situation and then, in its discretion, set the fee. Therefore, on appeal we will only reverse a district court award of a material witness fee for an abuse of discretion.

We presume that a discretionary ruling by the trial court is correct. Sheer Constr. v. W. Hodgman & Sons Inc., 326 N.W.2d 328, 334 (Iowa 1982). When a court exercises its discretion on grounds or for reasons clearly untenable or unreasonable, the court abuses its discretion. In re J.A.L., 694 N.W.2d 748, 751 (Iowa 2005). Considering McKinney’s financial situation, we cannot hold the district court abused its discretion when it awarded him a witness fee of $40 for each day he was confined.

IV. Disposition.

Because the amount of McKinney’s fee did not constitute involuntary servitude under the United States and Iowa Constitutions, and the district court did not abuse its discretion when it set the amount of the fee, we annul the writ.

WRIT ANNULLED.


author: BAKER, J. SACKETT, C.J.

text:
    Amber I. GABORIT, Petitioner-Appellant v. EMPLOYMENT APPEAL BOARD, and Sabre Communications Corporation, Respondents-Appellees.
    No. 07-0773.
    Court of Appeals of Iowa.
    Nov. 15, 2007.

      William J. Niebel of Iowa Legal Aid, Sioux City, for appellant.
    Anita M. Garrison, Employment Appeal Board, Des Moines, for appellee.
    Sabre Communications Corporation, pro se.
    Considered by SACKETT, C.J., and YAITHESWARAN and BAKER, JJ.
   BAKER, J.

Amber Gaborit appeals from the district court ruling that upheld the Employment Appeal Board’s denial of her claim for unemployment compensation benefits. Because we find her final absence was excused as a matter of law, we reverse.

I. Background and Facts

Amber Gaborit was hired by Sabre Communications Corporation on a part-time basis on May 23, 2005. She became a full-time order entry assistant on September 26, 2005. In both May and September of 2005, she signed an acknowledgment of receipt of Sabre’s attendance policy. The policy states in pertinent part that employees are expected to attend work as scheduled, that absences must be reported at least thirty minutes prior to the start of a scheduled shift, and that “[e]xtended absences that last 8 consecutive hours or less cannot be excused unless accompanied by a doctor’s note or other form of verification” (although it is unclear from the record whether Sabre in fact regularly required employees to provide a doctor’s excuse for such absences to be excused).

Both parties testified that Gaborit was absent from work on several occasions due to illness and various personal reasons, e.g., childcare issues, sick children, moving. No evidence was presented, however, regarding specific dates or reasons for Ga-borit’s absences. Sabre’s Human Resources Manager, Maria Harder, testified that she was unable to provide the exact dates of actual unexcused absences because she did not bring Gaborit’s attendance records to the unemployment appeal hearing. Gaborit testified that she sometimes obtained prior approval for these absences, and she admitted that she had received verbal warnings from her manager about her attendance, e.g., she was warned to get a back-up for her childcare.

On April 11, 2006, Gaborit received her first written disciplinary warning, which stated in part, “any unexcused time off in the future may result in additional disciplinary action up to and including termination of employment. All future time off for illness will require a Doctor’s note to be considered excused.” On May 15, 2006, Gaborit was absent from work due to illness and properly reported her absence to Sabre. Gaborit did not see a doctor. When she returned to work on May 16, she was allowed to work her shift. According to Harder, they “waited until the end of the day to ask Amber whether or not she was able to provide us a doctor’s note.” Because she did not provide a doctor’s note, Gaborit was discharged from employment.

Gaborit filed a claim for unemployment insurance benefits. An Iowa Workforce Development representative found her ineligible because her discharge was for “violation of a known company rule.” Gaborit appealed. The administrative law judge found that, although she was absent from work due to illness, she was disqualified for benefits because “she did not provide the medical documentation as stated in the company policy.” Gaborit appealed to the Employment Appeal Board (Board), who affirmed the decision of the administrative law judge (with one member dissenting). Gaborit’s application to the Board for rehearing was denied. Gaborit filed a petition for judicial review. The district court affirmed. Gaborit appeals, contending she is entitled to unemployment benefits because her final absence was excused as a matter of law and because the agency’s determination that she committed work-related misconduct was not supported by substantial evidence.

II. Merits

Our review is governed by the Administrative Procedure Act. Iowa Code eh. 17A (2005); Acuity Ins. v. Foreman, 684 N.W.2d 212, 216 (Iowa 2004). We review the district court’s decision by applying the standards of section 17A.19 to agency action to determine if our conclusions are the same as those reached by the district court. Univ. of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004). We are bound by the agency’s findings of fact if those findings are supported by substantial evidence when the record is reviewed as a whole. Sharp v. Employment Appeal Bd., 479 N.W.2d 280, 282 (Iowa 1991). We are not, however, bound by the agency’s legal conclusions; we may correct misapplications of the law. Iowa Code § 17A.19(10)(c). Gaborit contends she is entitled to unemployment benefits because her final absence was excused as a matter of law. We agree.

Unemployment statutes “should be interpreted liberally to achieve the legislative goal of minimizing the burden of involuntary unemployment.” Cosper v. Iowa Dep’t of Job Serv., 321 N.W.2d 6, 10 (Iowa 1982). Pursuant to Iowa Code section 96.5(2), an individual is disqualified for unemployment compensation benefits if “the individual has been discharged for misconduct in connection with the individual’s employment.”

“Misconduct” is defined as a deliberate act or omission by a worker which constitutes a material breach of the duties and obligations arising out of such worker’s contract of employment. Misconduct [is] limited to conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees.

Iowa Admin. Code r. 871-24.32(1).

Excessive unexcused absenteeism is an intentional disregard of the duty owed by the claimant to the employer and shall be considered misconduct except for illness or other reasonable grounds for which the employee was absent and that were properly reported to the employer.

Iowa Admin. Code r. 871-24.32(7) (emphasis added); see also Cosper, 321 N.W.2d 6, 10 (quoting with approval In re Therrien, 132 Vt. 535, 325 A.2d 357, 358 (1974) (“Absences ... for good cause, with appropriate notice, are not misconduct. They may be grounds for discharge, but not for penalty. Substantial disregard for the employer’s interest is not shown, and this is essential to a finding of misconduct.”)).

We are bound by the Employment Appeal Board’s findings that Gaborit was absent on May 15, 2006, due to illness and that she notified Sabre in advance of her absence. See Sharp, 479 N.W.2d at 282 (noting we are bound by the agency’s findings of fact that are supported by substantial evidence). Were it not for the doctor’s note requirement, the absence would have been excused for purposes of unemployment benefits.

To determine whether Gaborit’s last absence, for which she did not present the required doctor’s note, constituted misconduct, we must first determine whether our unemployment laws define “unexcused” or whether the employer may graft additional requirements to define what is “unexcused.” We hold that our legislature, through the Iowa Code and the Iowa Administrative Code, defines an unexcused absence for unemployment compensation eligibility purposes.

The issue is not whether Sabre had reasonable grounds for discharging Gabor-it. “What constitutes misconduct justifying termination of an employee, and what is misconduct which warrants denial of unemployment benefits are two separate decisions.” Brown v. Iowa Dep’t of Job Serv., 367 N.W.2d 305, 306 (Iowa Ct.App.1985). “Misconduct serious enough to warrant the discharge of an employee is not necessarily serious enough to warrant a denial of benefits.” Budding v. Iowa Dep’t of Job Serv., 337 N.W.2d 219, 222 (Iowa Ct.App.1983). The issue is whether those grounds constituted misconduct in connection with her employment such that she can be denied unemployment benefits. See Beaty v. City of Idaho Falls, 110 Idaho 891, 719 P.2d 1151, 1152 (1986).

Other states have similarly determined that their unemployment statutes, as opposed to the employer’s rules, define misconduct. See, e.g., id. (refusing to hold that “any discharge that is reasonably based on the employer’s own rules will always result in a denial of ... employment benefits”); Simmons v. Dep’t of Employment, 99 Idaho 290, 581 P.2d 336, 338 (1978) (“Violation of an employer’s rule is not, per se, misconduct.”); City of Wichita v. Employment Sec. Bd., 13 Kan.App.2d 729, 779 P.2d 41, 45 (1989) (holding claimant who had one sip of beer while on duty, in violation of employer’s work rule, did not commit misconduct within meaning of statute); Cabezas v. Adm’r, Div. of Employment Sec., 557 So.2d 985, 988 (La.Ct.App.1990) (“Whether a violation of the employer’s rule, resulting in discharge warrants the withholding of unemployment compensation benefits must be determined, not by the employer’s rules, but by the statute.”); Moore v. Maine Dep’t of Manpower Affairs, Employment Sec. Comm’n, 388 A.2d 516, 519 (Me.1978) (“denial of benefits based on misconduct should be determined not by the employer’s rules, but rather by the provisions of the statute”); Fitzgerald v. Globe-Union, Inc., 35 Wis.2d 332, 151 N.W.2d 136, 140 (1967) (“While the violation of a work rule may well justify the discharge of an employee, such a violation does not necessarily amount to misconduct for unemployment compensation purposes.”).

Because the Iowa Code and the Iowa Administrative Code define unexcused absences for unemployment compensation purposes, our remaining question is whether Gaborit’s absence was unexcused within the meaning of the statutes. Because the statutes exclude properly reported absences due to illness from the definition of unexcused absences, and Gaborit was ill and properly reported her absence, we hold that her final absence was excused as a matter of law. Gaborit is not disqualified for benefits due to misconduct.

The Board cites Warrell v. Iowa Dep’t of Job Serv., 356 N.W.2d 587, 590 (Iowa Ct.App.1984), to support its contention that the April 11, 2006 written warning “was, in essence, a last chance agreement.” In Warrell, we held that, where an employee had been previously warned about misconduct and placed on probation, and the employee did not comply with the conditions of probation, the employee “had long since forfeited rights that a nonprobationary employee has.” Warrell, 356 N.W.2d at 590. We disagree with the Board that the same principle is applicable in this case. The facts in Warrell involve an employee who “had been suspended three times, placed on probation three times, and was on probation when the final offensive conduct took place.” Id. In contrast, Gaborit had not been suspended or placed on probation. She had been verbally counseled regarding her attendance, and had received only one written warning prior to her termination. Further, the employer could not even identify how often Gaborit had been absent, or the dates of her previous absences, or whether the employer considered them to be excused or unexcused. We find the principles of Warrell inapplicable to the facts of this case.

Because we hold that Gaborit is entitled to unemployment benefits because her final absence was excused as a matter of law, we need not reach the issue of whether the agency’s determination that she committed work-related misconduct was supported by substantial evidence.

REVERSED.

VAITHESWARAN and BAKER, JJ., concur.

SACKETT, C.J., dissents.

SACKETT, C.J.

(dissenting).

I respectfully dissent. I would affirm the agency and the district court. The district court concluded that:

Given the nature of the April 11th, 2006, disciplinary warning notice there can be no doubt that any absences for illness after April 11th without an accompanying doctor’s note would not be tolerated by the employer. Whether or not Ms. Gaborit felt the doctor’s note requirement was reasonable, she testified that she knew on May 15, 2006, that she needed a doctor’s note in order for her absence to be considered as excused. Clearly, there is substantial evidence that Ms. Gaborit’s failure to produce a doctor’s note was intentional and constituted substantial misconduct which, given the context of her actions, is serious enough to warrant denial of benefits. The agency’s application of the law to the facts is not irrational, illogical, or wholly unjustifiable. Nor is the agency’s decision unreasonable, arbitrary, capricious, or an abuse of discretion.

I agree with the district court on this issue and do not find that the May 15 absence was excused as a matter of law.

      . We do not define "properly reported” under the Iowa Administrative Code as the Board found that Gaborit properly notified her employer and this finding was not contested by the employer.


author: ANDERSON, RUSSELL A., Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Timothy Kenbert ENGLE, Appellant.
    No. A05-2423.
    Supreme Court of Minnesota.
    Jan. 3, 2008.
    Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis MN, for Appellant.
    Lori Swanson, Attorney General, Criminal, and Mark Nathan Lystig, Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

We granted review in this case to determine whether a conviction under Minn. Stat. § 609.66, subd. la(a)(3) (2006), which proscribes recklessly discharging a firearm in a municipality, requires proof that the firearm was intentionally discharged. We hold that a conviction under Minn.Stat. § 609.66, subd. la(a)(3), does not require proof of an intentional discharge, but rather requires proof of a conscious or intentional act, in connection with the discharge of a firearm, that creates a substantial and unjustifiable risk that the actor is aware of and disregards. We remand to the district court for reconsideration consistent with this opinion.

Appellant Timothy Kenbert Engle was convicted of recklessly discharging a firearm in a municipality in violation of Minn. Stat. § 609.66, subd. la(a)(3). The court of appeals- affirmed. State v. Engle, 731 N.W.2d 852 (Minn.App.2007).

On November 2, 2003, Engle, a private security guard, arrived at a St. Paul housing complex to assist a fellow security guard in apprehending a suspected thief. The suspect attempted to flee, but eventually the guards held him at gunpoint, sitting in the driver’s seat of a stolen car. Somehow, in the course of removing the suspect from the car, Engle discharged his gun, shooting and paralyzing the suspect. Both parties concede that the discharge was unintentional.

After a bench trial, the district court found Engle guilty of recklessly discharging a firearm within a municipality. The court defined “recklessly” as “a conscious and intentional act that the defendant knew or should have known created an unreasonable risk of harm to others.” The court noted that “[b]oth parties agree that the discharge of the firearm was unintentional” but concluded that “[t]he law is clear to me that no intent to discharge * * * needs to be established.” The court found that the reckless act satisfying the statutory requirement “was having the weapon positioned so that it could be discharged and cause harm while [Engle extracted the suspect] from the car.” The court stayed imposition of Engle’s sentence and placed him on probation for 2 years.

Engle appealed, arguing to the court of appeals, among other things that the district court erred in not requiring proof that he intentionally discharged his weapon. Engle, 731 N.W.2d at 854. The court of appeals affirmed, holding that discharge need not be intentional. Id. at 862. Engle petitioned this court for review, which we granted only as to the issue of whether subdivision la(a)(3) requires an intentional discharge of a firearm.

I.

We review questions of statutory interpretation de novo. State v. Wiltgen, 737 N.W.2d 561, 570 (Minn.2007). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.” Minn.Stat. § 645.16 (2006). If a statute is unambiguous, it is to be given its plain meaning. Id.; State v. Al-Naseer, 734 N.W.2d 679, 684 (Minn.2007). If a statute is ambiguous or unclear, we consider “(1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained;” (5) any former law; “(6) the consequences of a particular interpretation;” (7) legislative history; and “(8) legislative and administrative interpretations of the statute.” Minn.Stat. § 645.16.

Minnesota Statutes § 609.66, subd. la(a), provides that a person who “(2) intentionally discharges a firearm under circumstances that endanger the safety of another; or (3) recklessly discharges a firearm within a municipality” is guilty of a felony. In subdivision la(a)(3), the adverb “recklessly” modifies the verb “to discharge.” On its face, then, the statute prohibits discharging a firearm in a reckless manner. Whether there is ambiguity depends on the definition of “reckless,” to which we now turn.

“Reckless” is an ambiguous term. It is not defined in the Minnesota criminal code. See MinmStat. § 609.02 (2006). The term has not always been used consistently, although it is generally used to define a level of culpability more serious than ordinary negligence and less serious than specific intent to harm. 1 Wayne F. LaFave, Substantive Criminal Law § 5.4, at 365-66 (2d ed.2003). Recklessness often describes conduct that exceeds ordinary negligence in two respects: a higher degree of risk, and a higher degree of fault — the actor must be subjectively aware that his conduct creates the risk. Id. at 366; see also 1 Charles E. Torcía, Whartons Criminal Law § 27, at 167-68 (15th ed. 1993) (A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.).

Two distinct lines of our cases offer two different definitions of recklessness. We were called upon in State v. Cole to define recklessness for purposes of, among other provisions, MinmStat. § 609.66, subd. 1(1) (2006), which proscribes recklessly handling a gun so as to endanger the safety of another. 542 N.W.2d 43, 51 (Minn.1996). Relying on State v. Zupetz, in which we defined “recklessly” in the context of reckless homicide, 322 N.W.2d 730, 733-34 (Minn.1982), we said, “A person acts ‘recklessly’ when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct * * *. [Both the reckless actor and the intentional] actor [create] a risk of harm. The reckless actor is aware of the risk and disregards it.” Cole, 542 N.W.2d at 51-52 (alterations in original); see also State v. Mauer, 741 N.W.2d 107, 115 (Minn.2007); State v. Frost, 342 N.W.2d 317, 319-20 (Minn.1983).

The definition of “recklessness” in the second line of cases is embodied in the model jury instruction for MinmStat. § 609.66, subd. la(a)(3), upon which the district court relied in this case. The instruction states that “ ‘[r]ecklessly’ means á conscious and intentional act that the defendant knew, or should have known, created an unreasonable risk of harm to others.” 10A Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 32.10 (5th ed.2006). This definition originated in our reckless driving jurisprudence. See State v. Bolsinger, 221 Minn. 154, 157, 21 N.W.2d 480, 484 (1946).

We conclude that the Cole definition applies to MinmStat. § 609.66, subd. la(a)(3). The Cole definition comports with the most common usage of the term. See Torcía, supra, § 27; 22 C.J.S. Criminal Law § 51 (2006) (“A person is said to act recklessly when he or she consciously disregards a substantial and unjustifiable risk that an injury will occur, or when his or her action is grossly heedless of consequences.”); 21 Am.Jur.2d Criminal Law § 138 (2d ed. 1998) (“Recklessness requires that an actor consciously disregard a substantial and unjustifiable risk”). We see no reason why this general definition of “recklessness” should not apply to felony weapons offenses.

By contrast, the Bolsinger line of eases expressly limits its definition of “recklessness” to the unique context of reckless driving, which involves criminal negligence concepts. See MinmStat. §§ 169.11,169.13 (2006) (current statutes dealing with criminal negligence and reckless driving); State v. Meany, 262 Minn. 491, 495-96, 115 N.W.2d 247, 251 (1962) (“The crime of criminal negligence is defined in Minn. St. 169.11 * * *. The meanings of the terms ‘reckless’ and ‘grossly negligent,’ as used in this statute, are exhaustively reviewed in State v. Bolsinger * * *.” (emphasis added)); Bolsinger, 221 Minn. at 157, 21 N.W.2d at 484 (“In order to apply § 169.11 * * *, we must first determine what it means. * * * The meaning of the word ‘reckless,’ so far as it relates to driving, is found in § 169.13.” (emphasis added)). We find no indication that the legislature intended to apply a reckless driving standard to a wholly separate regulatory scheme. Accordingly, we adopt the Cole definition and hold that for purposes of Minn.Stat. § 609.66, subd. la(a)(3), one acts recklessly by creating a substantial and unjustifiable risk that one is aware of and disregards.

II.

Having clarified that “recklessly” as used in Minn.Stat. § 609.66, subd. la(a)(3), requires the creation of a substantial and unjustifiable risk that the actor is aware of and disregards, it remains for us to determine whether the act creating that risk must be the intentional act of discharge or whether other acts can also constitute reckless discharge. Any crime, including reckless crimes, requires some voluntary act. See 1 Torcía, supra, § 25. It is not clear from Minn.Stat. § 609.66, subd. la(a)(3), whether that act must be the act of discharge or whether any act in connection with the discharge of a firearm evincing a conscious disregard of a substantial and unjustifiable risk can suffice. In arguing that an intent requirement should be read into the statute, Engle cites dicta in State v. Richardson, 670 N.W.2d 267, 283 (Minn.2003).

The court of appeals relied upon the provision in Minn.Stat. § 645.16 that statutes should be construed to give effect to every provision. Engle, 731 N.W.2d at 862. The court reasoned that reading an intent component into subdivision la(a)(3) would render subdivision la(a)(2) superfluous, because intentional discharge in a reckless manner within a municipality necessarily falls within the ambit of intentional discharge in a manner that endangers another’s safety. Id. Although much conduct would fall under both statutes, one could arguably be reckless in violation of subdivision la(a)(3) without endangering another in violation of subdivision la(a)(2).

It is significant, however, that subdivision la(a)(2), which existed in its current form when la(a)(3) was added in 1993, explicitly includes an intent requirement. See Act of May 20, 1993, ch. 326, art. 1, § 15, 1993 Minn. Laws 1974, 1986. This fact strongly suggests that the legislature deliberately decided against using the same “intentionally discharges” language in the new section. Had the legislature wanted subdivision la(a)(3) to mean “intentionally discharges a firearm in a reckless manner within a municipality,” it could have mirrored the existing language in subdivision la(a)(2).

Engle argues that not reading an intent component into subdivision la(a)(3) leads to an absurd result, namely that it “would render any licensed, trained individual (including law enforcement officers), acting entirely in accordance with accepted procedures, subject to criminal prosecution and conviction for any unintentional firearm discharge caused by a reflexive response.” This argument misleadingly suggests that rejecting Engle’s proposed intent requirement would negate any mental state requirement. On the contrary, the statute requires on its face that the discharge be reckless. A reckless crime requires both intentional conduct and the creation of a risk. Mere reflex, where an actor had not taken voluntary actions creating a risk, could not in any event subject a person to penalty under the statute.

Moreover, the policy of the statute— protecting the community from death or injury by firearms — is best served by holding actors responsible for consciously disregarding risks of harm, whether they do so by intentionally pulling the trigger or by another act that increases the likelihood that the gun will discharge accidentally, involuntarily, or reflexively. In light of the absence of any language of intent in subdivision la(a)(3), the corresponding presence of the word “intentionally” in an adjacent and preexisting section, and the legislative policy of protecting the public from the irresponsible use of firearms, we conclude that a person need not intend the discharge. We disavow any dicta in Richardson that says otherwise. We hold that a person has the requisite mental state for Minn.Stat. § 609.66, subd. la(a)(3), if he commits a conscious or intentional act in connection with the discharge of a firearm that creates a substantial and unjustifiable risk that he is aware of and disregards.

Although the district court correctly concluded that the State need not prove that Engle intentionally discharged his firearm, the court applied the model jury instruction definition of recklessness, requiring only that Engle knew or should have known of the unreasonable risk he created. Because we hold here that a higher standard is proper for purposes of Minn.Stat. § 609.66, subd. la(a)(3), we must remand for reconsideration based on the existing record in light of this opinion. On remand, the district court must determine whether Engle committed a conscious or intentional act, in connection with the discharge of a firearm, that created a substantial and unjustifiable risk that he was aware of and disregarded.

Remanded.

      . In Richardson, the appellant argued that the jury should have received an instruction on Minn.Stat. § 609.66, subd. la(a)(3), as a lesser-included offense. 670 N.W.2d at 283. In rejecting appellant’s argument, we stated, citing to the CRIMJIG, that “[rjeckless discharge of a firearm within a municipality requires proof that the defendant intentionally discharged a weapon in a municipality in a manner that the defendant should have known created an unreasonable risk of harm to others.” Id.

      . Indeed, several states have statutes that delineate distinct mental state requirements for the act of firearm discharge and for the result.
        E.g., Iowa Code § 724.30 (2007) (penalizing one who “intentionally discharges a firearm in a reckless manner”).