                   IN THE SUPREME COURT OF IOWA
                                 No. 07–0087

                             Filed March 27, 2009


STATE OF IOWA,

      Defendant,

vs.

MICHAEL ALLEN SLUYTER,

      Plaintiff.


      Certiorari to the Iowa District Court for Ringgold County, John D.

Lloyd, Judge.



      Acquitted indigent defendant challenges legality of district court’s use

of contempt powers to enforce judgment for costs of legal assistance provided

to defendant. WRIT SUSTAINED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant State Appellate Defender, for plaintiff.


      Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant

Attorney General, and Clinton L. Spurrier, County Attorney, for defendant.
                                                2

TERNUS, Chief Justice.

       In this original certiorari proceeding,1 the plaintiff, Michael Sluyter,

challenges the district court’s use of contempt procedures to collect a cost

judgment entered against him after he was acquitted of crimes at trial.

Sluyter claims this judgment, representing the attorney fees for his court-

appointed counsel and associated costs of his defense, is a civil liability that

must be enforced through civil debt-collection procedures. He also claims

the court’s use of contempt powers to enforce this judgment is illegal and

violates the constitutional prohibition of imprisonment for civil debts. The

State asserts the court has statutory authority to use contempt to enforce its

order imposing defense expenses on an acquitted defendant. The State also

maintains the use of contempt, including the ultimate sanction of

imprisonment, does not violate the Iowa Constitution. In addition, the State

contends Sluyter’s claim is not ripe because he has not yet been arrested

and jailed for contempt.

       We conclude Sluyter’s claim is ripe and that the legislature has not

authorized the use of contempt procedures against acquitted defendants to

collect a judgment for the cost of legal assistance provided to such

defendants.         This    decision     makes      it   unnecessary        to   address     the

constitutional issue.        We sustain the writ and remand this case to the

district court for dismissal of the contempt proceedings.




       1The   State challenged the propriety of Sluyter seeking relief in an original certiorari
proceeding, claiming his remedy was an appeal. Although a one-justice order was entered
treating Sluyter’s petition for writ of certiorari as an appeal, we now hold Sluyter properly
challenged the legality of the district court’s action by filing an original certiorari proceeding
in this court. See Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 863 (Iowa 2005) (stating a writ of
certiorari lies when the lower tribunal has exceeded its jurisdiction); Opat v. Ludeking, 666
N.W.2d 597, 606 (Iowa 2003) (stating contempt order may be reviewed by certiorari). See
generally 14 C.J.S. Certiorari § 11, at 59 (2006) (stating “orders exceeding the powers of the
court making them are reviewable by certiorari”).
                                               3

       I. Background Facts and Proceedings.

       Sluyter was charged with various crimes in February 2005 and,

pursuant to Iowa Code section 815.9, was appointed counsel based upon his

indigent status.         See Iowa Code § 815.9(1) (2005)2 (providing for the
appointment of counsel for indigent defendants). One of the charges against

Sluyter was dismissed before trial, and he was acquitted of the remaining

charges in a February 2006 jury trial. Immediately after trial, the district

court issued an order taxing Sluyter with court-appointed attorney fees and

associated costs as required by Iowa Code section 815.9(3), (4).

       The day after Sluyter’s trial, the court issued a show-cause order to

monitor Sluyter's payment of the judgment. From February 2006 to August

2006, the trial court issued several additional show-cause orders to check on

Sluyter’s payment of the fees and costs. With each show-cause order, the

court stated that a warrant would issue for Sluyter's arrest should he fail to

appear at the scheduled hearing. Sluyter was not personally served with any

of these orders, and although his attorney attended some of the hearings,

Sluyter did not.

       In August 2006, the district court issued an order requiring Sluyter to

pay the cost of his legal assistance in installments of $200 a month and to

execute a wage assignment with the clerk of court.                        See Iowa Code

§ 815.9(4), (7), (8).3 In response to this order, Sluyter's trial counsel filed a


       2Unless  otherwise indicated, all citations are to the 2005 Iowa Code. For the most
part, the 2005 Iowa Code sections relevant here remain unchanged in the 2009 Iowa Code.

       3Section   815.9 provides in relevant part:
               4. If the case is a criminal case, all costs and fees incurred for legal
       assistance shall become due and payable to the clerk of the district court by
       the person receiving the legal assistance not later than the date of
       sentencing, or if the person is acquitted or the charges are dismissed, within
       thirty days of the acquittal or dismissal.
              ....
                                                4

motion requesting clarification of Sluyter’s obligations.                    In this motion,

counsel maintained that Sluyter was liable for defense costs only, not

restitution or prosecution costs. In addition, counsel asserted that, if fees

and costs are not paid, a judgment should be entered, which would be

enforced through execution, not contempt. See id. § 815.9(9) (“If any costs

and fees are not paid at the times specified under subsections 4 and 5, a

judgment shall be entered against the person for any unpaid amounts.”).

Defense counsel further asserted that using contempt to enforce the

judgment is prohibited by article I, section 19 of the Iowa Constitution. See

Iowa Const. art. I, § 19 (“No person shall be imprisoned for debt in any civil

action, on mesne or final process, unless in case of fraud.”).                         Counsel

requested that the court (1) specify the amount of the costs Sluyter was

obligated to pay, (2) vacate all prior orders regarding installment payments

and wage garnishments, and (3) enter judgment against Sluyter for the

amount due. In its response, the State argued the court could enforce its

fees-and-costs order through contempt powers because Iowa Code section

815.9 does not specifically preclude use of contempt to enforce orders taxing

costs in criminal cases and because Iowa Code section 665.2(3) specifically

authorizes use of contempt when there is an illegal resistance to a court

order.       See Iowa Code § 665.2(3) (listing acts constituting contempt,

including an “[i]llegal resistance to any order or process made or issued by

[the court]”).




                7. If all costs and fees incurred for legal assistance are not paid at the
         times specified in subsections 4 and 5, the court shall order payment of the
         costs and fees in reasonable installments.
                8. If a person is granted an appointed attorney or has received legal
         assistance in accordance with this section and the person is employed, the
         person shall execute an assignment of wages.
Iowa Code § 815.9(4), (7), (8).
                                        5

      The trial court issued an order, “amend[ing] the judgment previously

entered against [Sluyter] to show the specific amount of $7,513.52.”         The

court rejected Sluyter’s argument it could not use its power of contempt to

enforce payment of Sluyter’s court-ordered obligations.             Nonetheless,

because Sluyter had not been personally served with the prior show-cause

orders, the court vacated all prior contempt proceedings. The court then set

a hearing to determine the amount of reasonable installments for payment of

the judgment and ordered that Sluyter be personally served with the order.

      Prior to the hearing, Sluyter’s counsel filed a motion in which he again

challenged the trial court’s use of contempt procedures by way of show-

cause orders. In response, the court ruled it had authority to use contempt

pursuant to Iowa Code section 909.5, which provides “[a] person who is able

to pay . . . court-imposed court costs for a criminal proceeding . . . and who

refuses to do so, or who fails to make a good faith effort to pay the . . . court

costs . . . shall be held in contempt of court.” Id. § 909.5.

      Subsequently, the court issued an order finding Sluyter was employed,

that an income-withholding order should be entered, and that Sluyter

should be required to pay $50 a month toward his court-ordered obligations.

The court set a show-cause hearing for January 8, 2007, ordering Sluyter to

appear or a warrant would issue for his arrest. Sluyter was not personally

served with the order.

      Sluyter did not appear at the January 8 show-cause hearing. The trial

court noted that Sluyter had made minimal payments to the judgment, but

$8251.82 was still outstanding. The court set another show-cause hearing

for February 5, ordering that Sluyter pay $50 per month on the obligation.

The trial court specified that a warrant for arrest would issue should Sluyter

fail to appear. Sluyter was not personally served with the order.
                                          6

      Meanwhile,      Sluyter’s     counsel   initiated   this   original   certiorari

proceeding. At the scheduled hearing, counsel informed the trial court that

review had been sought.           Thereafter, the district court issued an order

providing that Sluyter’s filing of a certiorari petition in the supreme court did

not negate the district court’s authority to pursue contempt proceedings for

enforcement of its judgment for fees and costs.             The court set another

hearing and again ordered Sluyter to personally appear or a warrant for his

arrest would issue. Sluyter did not appear at the scheduled hearing, and the

district court ordered that he be arrested.

      Before this court, Sluyter raises two issues: (1) the district court was

not authorized to use contempt proceedings to collect a judgment entered

pursuant to Iowa Code section 815.9 against an acquitted defendant; and (2)

use of the court’s contempt power to collect this judgment violated article I,

section 19 of the Iowa Constitution.             In addition to rebutting these

arguments, the State contends these issues are not ripe.

      II. Scope of Review.

      We review the district court’s interpretation of a statute for correction

of errors at law. Iowa R. App. P. 6.907 (2009) (formerly Iowa R. App. P. 6.4);

State v. Wade, 757 N.W.2d 618, 622 (Iowa 2008). We review challenges to

the constitutionality of a statute de novo. Wade, 757 N.W.2d at 622.

      III. Ripeness.

      As noted earlier, the State claims this case is not ripe because Sluyter

has not been arrested or put in jail for failing to pay the judgment for court-

appointed attorney fees. A case is ripe for adjudication when it presents an

actual, present controversy, as opposed to one that is merely hypothetical or

speculative.4 Stream v. Gordy, 716 N.W.2d 187, 193 (Iowa 2006); Wickey v.

      4We  consider ripeness in the sense of avoiding the issuance of advisory opinions
rather than as a doctrine applied in cases related to administrative agencies and the
requirements of exhaustion and finality. Compare Wickey v. Muscatine County, 242 Iowa
                                           7

Muscatine County, 242 Iowa 272, 286–87, 46 N.W.2d 32, 39–40 (1951).

Sluyter claims the district court has no authority to use its contempt powers

to enforce the cost judgment; the State claims the court has such authority.

There is nothing speculative or hypothetical about this controversy because

the district court has already issued several show-cause orders under its

contempt power to monitor Sluyter’s payment of the judgment. Therefore,

an actual, present controversy exists with respect to the legality of the

court’s actions.

          Sluyter also claims imprisonment for a failure to pay the cost

judgment violates the debtor clause of the Iowa Constitution. At this point

in the proceedings, Sluyter has not yet been held in contempt, much less

jailed.     Thus, the State asserts, any decision by this court would be

premature. The ripeness requirement may be satisfied by a “direct threat of

personal detriment.” Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745,

35 L. Ed. 2d 201, 210 (1973); accord Epperson v. Arkansas, 393 U.S. 97,

102, 89 S. Ct. 266, 269, 21 L. Ed. 2d 228, 233 (1968). Proof that a litigant

faces a threat of imprisonment establishes a direct threat of personal

detriment. See Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,

298, 99 S. Ct. 2301, 2309, 60 L. Ed. 2d 895, 906 (1979) (holding person

need not “ ‘first expose himself to actual arrest or prosecution’ ” to challenge

the constitutionality of a criminal statute so long as there is “a credible

threat of prosecution thereunder” (quoting Steffel v. Thomas, 415 U.S. 452,

459, 94 S. Ct. 1209, 1216, 39 L. Ed. 2d 505 (1974))); Mangual v. Rotger-

Sabat, 317 F.3d 45, 57 (1st Cir. 2003) (holding threat of prison makes

challenge ripe); see also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,

272, 286–87, 46 N.W.2d 32, 39–40 (1951) (holding issue is not ripe for determination––is
not justiciable—when there is no present controversy and opinion would be merely
advisory), with State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000) (considering
ripeness of claim to avoid premature adjudication of issue before administrative decision
has been made).
                                           8

128–29, 127 S. Ct. 764, 772, 166 L. Ed. 2d 604, 616 (2007) (in noncriminal

context, stating “where threatened action by government is concerned, we do

not require a plaintiff to expose himself to liability before bringing suit to

challenge . . . the constitutionality of a law threatened to be enforced”). Any

threat of imprisonment must, however, be objectively reasonable.                See

Mangual, 317 F.3d at 57; see also Laird v. Tatum, 408 U.S. 1, 13–14, 92

S. Ct. 2318, 2325–26, 33 L. Ed. 2d 154, 163–64 (1972) (requiring “specific

present objective harm or a threat of specific future harm” to establish

standing).    Sluyter argues he has an objectively reasonable fear of

imprisonment for failing to satisfy his obligation to pay the judgment entered

against him for attorney fees and costs.

      The State seeks to enforce Sluyter’s payment of the judgment through

the use of contempt proceedings.       Under Iowa law, a district court may

punish contempt with a sentence of imprisonment in the county jail not to

exceed six months. See Iowa Code § 665.4. The fact that the law authorizes

imprisonment does not end the inquiry, however. We must also determine

whether, under the facts here, it was reasonable for Sluyter to fear that this

particular district court would imprison him for contempt based upon his

failure to pay the judgment.

      We     conclude   Sluyter’s   fear       of   imprisonment   was   objectively

reasonable. The history of this case indicates the trial court was determined

to enforce its judgment for fees and costs. The day after the jury acquitted

Sluyter, the district court issued a show-cause order, which was followed by

more than eight additional show-cause orders to monitor Sluyter’s payment

of the judgment. By issuing these show-cause orders to check on Sluyter’s

satisfaction of the judgment, the district court relied upon its contempt

power.   Ultimately, the trial court exercised its contempt power when it

ordered a warrant be issued for Sluyter’s arrest.             Although based on
                                        9

Sluyter’s failure to appear, the arrest warrant demonstrated the district

court’s willingness to enforce its orders by exercising its power to imprison

Sluyter when he failed to obey the court’s orders.                 Under these

circumstances, Sluyter faced an objectively reasonable threat of being jailed

for his failure to pay the judgment for attorney fees and costs. This threat is

a personal detriment that is sufficient to render Sluyter’s constitutional

challenge to the court’s use of its contempt power ripe for consideration.

     IV. Court’s Authority to Use Contempt Power to Enforce
Judgment For Court-Appointed Attorney Fees and Costs Entered
Against an Acquitted Defendant.
      A. Rules of Statutory Interpretation.            “ ‘The primary rule of

statutory interpretation is to give effect to the intention of the legislature.’ ”

State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000) (quoting State v.

Casey’s Gen. Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998)). To ascertain

legislative intent, we look to the language of the statute.        Casey’s Gen.

Stores, 587 N.W.2d at 601. We consider not only the commonly understood

meaning of the words used in the statute, but also the context within which

they appear. Id. We presume that, when the legislature enacts a statute, it

intends “ ‘[a] just and reasonable result.’ ” Iowa Dist. Ct., 616 N.W.2d at 578
(quoting Iowa Code § 4.4(3)). In addition, we “construe statutes that relate to

the same or a closely allied subject together so as to produce a harmonious

and consistent body of legislation.” Casey’s Gen. Stores, 587 N.W.2d at 601.

      If a statute may be construed in more than one way, we adopt the

construction that does not violate the constitution.      State v. Mitchell, 757

N.W.2d 431, 434 (Iowa 2008). Constitutional questions should be avoided

when an appeal can be decided on other grounds. State v. Kukowski, 704

N.W.2d 687, 690 (Iowa 2005).
                                        10

       B. Statutory Basis for Judgment. Under Iowa Code section 815.9,

an indigent defendant who was appointed counsel at state expense must

reimburse the state for the total fees and costs of legal assistance provided to

the person whether the prosecution results in a conviction, acquittal, or

dismissal.    Iowa Code § 815.9(3).    Acquitted defendants must pay all fees

and costs to the court within thirty days of their acquittal. Id. § 815.9(4). If

the costs are not paid as specified, the court must order payment in

reasonable installments, id. § 815.9(7), and if the person is employed, the

person must execute a wage assignment and the court must enter an order

for assignment of income in a reasonable amount to be determined by the

court, id. § 815.9(8).   Finally, if fees and costs are not paid, the court is

required to enter a judgment against the person for any unpaid amounts.

Id.   § 815.9(9).   This    statute   does   not   provide   that   a   defendant’s

reimbursement obligation is enforceable by contempt.

       C. Court’s Inherent Authority to Use Contempt Power to Enforce

Judgment. Although it is not entirely clear whether the State relies on the

court’s inherent authority to hold persons appearing before them in

contempt, we think our decision in LaRue v. Burns, 268 N.W.2d 639 (Iowa

1978), disposes of this contention.          In LaRue, a convicted defendant

challenged the district court’s authority to impose a jail sentence for the

defendant’s contempt in failing to pay court costs assessed against him in a

criminal prosecution.      268 N.W.2d at 641.      We held that a “judgment for

costs against a criminal defendant creates a civil, not a criminal, liability.”

Id. We noted “[a]n exception exists if a statute makes court costs part of the

fine to be imposed as penalty for an offense.” Id. We concluded that, in the

absence of such an exception, “a judgment for costs is to be enforced by

execution.”    Id. (citing Iowa Code § 626.1 (1975) (“Judgments or orders

requiring payment of money . . . are to be enforced by execution.”)).
                                            11

       We observed that, “[w]hile a court has inherent power to punish for

disobedience of its orders, such power is subject to restriction.” Id. at 642.

Moreover, the contempt power, we said, “is to be exercised only to promote

fair and impartial administration of the law.” Id. We pointed out the State

in LaRue had made no attempt to enforce the cost judgment using the

execution procedures authorized by section 626.1 prior to invoking the

court’s contempt power. Id. (discussing Iowa Code section 626.1 (1975)). We

held that, “[i]n light of the circumstances of this case, the availability of the

§ 626.1 remedy, and policies underlying the contempt power, . . . there was

no justification for imposition of a jail sentence.”5 Id.

       We think the same reasoning applies even more powerfully here with

respect to an acquitted defendant. Because Sluyter was not convicted of the

criminal charges, the cost judgment entered against him could not have

been “part of the fine to be imposed as penalty for an offense.” Id. at 641.

Therefore, the judgment created a civil liability.           Although a district court

has inherent power to punish persons who fail to obey its orders, our court

made clear in LaRue that section 626.1 limited that power and required the

State to enforce a civil cost judgment “by execution.” Id.

       That is not to say the court’s contempt power can never be called upon
in the course of the state’s efforts to collect a cost judgment against an

acquitted defendant. Chapters 626 and 630 set forth the various procedures



       5In LaRue, we also rejected the State’s claim the court had statutory authority to use
contempt to enforce the cost judgment entered against the convicted defendant in that case.
The State relied upon Iowa Code section 762.32 (1975), which authorized use of contempt to
punish willful nonpayment of fines. See also Iowa Code § 789.17 (1975) (same). In
addressing the State’s invitation to apply section 762.32 in LaRue, this court distinguished
costs from fines. LaRue, 268 N.W.2d at 641. Because section 762.32 applied only to fines,
not costs, we held it did not authorize punishment for contempt for failure to pay costs. Id.
The State correctly points out that section 762.32 has been amended since our LaRue
decision and the amended statute, in part, can now be found in section 909.5. We will
discuss section 909.5 later in our opinion.
                                       12

for, and auxiliary to, execution on a judgment, as well as the duties of a

judgment debtor.       See Iowa Code chs. 626, 630.       Should the judgment

debtor willfully disobey court orders requiring compliance with these

obligations, the court’s contempt power may be invoked. See id. §§ 626.1

(stating that obedience to orders requiring the performance of any act other

than the payment of money “is to be coerced by attachment as for a

contempt”); 630.11 (stating any judgment debtor who fails to appear for

examination or who fails to fully answer interrogatories “will be guilty of

contempt, and may be arrested and imprisoned until the debtor complies”).

      D. Court’s Authority Under Section 909.5 to Invoke Contempt

Power. We now consider whether the district court had statutory authority

to use contempt proceedings to enforce payment of the cost judgment. Cf.

id. §§ 252A.6(6) (stating party who willfully fails to comply with support order

may be punished for contempt), 598.23(1) (authorizing court to punish for

contempt any party who willfully disobeys court’s temporary order or final

decree in dissolution action).    The district court believed, and the State

asserts on appeal, that Iowa Code section 909.5 provides that authority.

That statute states:

             A person who is able to pay a fine, court-imposed court
      costs for a criminal proceeding, or both, or an installment of the
      fine or the court-imposed court costs, or both, and who refuses
      to do so, or who fails to make a good faith effort to pay the fine,
      court costs, or both, or any installment thereof, shall be held in
      contempt of court.

Id. § 909.5. The State argues that, because the statute expressly includes

“court-imposed court costs for a criminal proceeding,” it authorizes the court

to use its power of contempt to enforce a chapter 815 cost judgment.

Sluyter responds that section 909.5 does not apply to acquitted defendants,

and if it does, it violates the debtor clause of the Iowa Constitution.
                                      13

       Although section 909.5 does not specifically state whether it applies to

convicted defendants, acquitted defendants, or both, its reference to “[a]

person” appears all-encompassing at first blush. On the other hand, this

provision appears in the Iowa Corrections Code, which deals with criminal

corrections matters such as sentencing procedures, sentences, parole, the

department of corrections, correctional programs, the parole board, deferred

and suspended sentences and judgments, probation, and fines. See Iowa

Code § 901.1 (“Chapters 901 to 909 shall be known and may be cited as the

‘Iowa Corrections Code.’ ”). See generally id. chs. 901–909. Chapter 815, on

the other hand, appears in the Iowa Code of Criminal Procedure, id. § 801.1,

which governs the procedure in all criminal proceedings, id. § 801.2. The

legislature’s decision to place the authority to enforce a cost judgment in the

Iowa Corrections Code is relevant to our search for legislative intent. In Iowa

District Court, this court concluded the placement of the statute at issue in

the Code chapter governing the sentencing of felons rather than in the

chapter governing reduction of sentences for good conduct evidenced a

legislative intent that the statute “operate as a minimum sentence as

opposed to a restriction on the power of the parole board.” 616 N.W.2d at

579.

       The legislative history of this statute also indicates a conscious

decision by the legislature to restrict the contempt power to criminal

liabilities.   The predecessor statutes to section 909.5, Iowa Code sections

762.32 and 789.17, both provided that a defendant willfully refusing to pay a

judgment for a fine could be punished through contempt.            Iowa Code

§§ 762.32, 789.17 (1975). Section 762.32 was in the chapter governing trial

of nonindictable offenses, and section 789.17 was found in the chapter

dealing with judgments. See id. In the 1976 criminal code revision, these

statutes were replaced with a new statute stating:
                                        14
        Any person who is able to pay a fine, or an installment of a fine,
        and who refuses to do so, or who fails to make a good faith effort
        to pay his or her fine, or any installment thereof, shall be held in
        contempt of court.

1976 Iowa Acts ch. 1245, § 905 (codified at Iowa Code § 909.5 (1979)).

Although one of the predecessor statutes was located in a chapter governing

criminal procedure, the legislature chose to place the new statute in the Iowa

Corrections Code. Later, when the legislature decided to make a failure to

pay court–imposed court costs in a criminal proceeding subject to contempt,

it amended section 909.5 in the Iowa Corrections Code to accomplish that

goal.   1985 Iowa Acts ch. 52, § 1 (codified at Iowa Code § 909.5 (1985)).

Significantly, at the time of this amendment, an indigent, acquitted

defendant had no obligation to reimburse the state for the cost of legal

assistance provided to him.       See Iowa Code §§ 910.1(4) (1985) (defining

“restitution” to include “court-appointed attorney’s fees or the expense of a

public defender”), 910.2 (requiring the sentencing court to “order that

restitution be made by each offender . . . to the county where conviction was

rendered for court costs, court-appointed attorney’s fees or the expense of a

public defender when applicable”) (1985).       It was not until 1999 that the

legislature imposed an obligation on acquitted defendants to pay court-
appointed counsel fees and defense costs.        1999 Iowa Acts ch. 135, § 27

(codified at Iowa Code § 815.9 (1999)).

        This legislative history shows the legislature did not have civil cost

judgments against acquitted defendants in mind when it amended section

909.5 in 1985, so it certainly had no intent at that time to apply the statute

to acquitted defendants.         Secondly, when civil cost judgments were

authorized in 1999, the legislature took no action to expand the reach of

section 909.5 beyond its criminal corrections context, as it could have easily

done by expressly incorporating a contempt remedy in section 815.9 or by
                                            15

making a cross-reference to section 909.5. Yet, it did neither. In summary,

the legislature’s failure to expand the reach of section 909.5 to acquitted

defendants suggests a legislative intent that the remedies permitted by

section 909.5 apply only to cost judgments entered as part of the penalty for

a criminal offense.

         As a final matter, we consider the possible constitutional infirmities of

a   statute    that    denies    indigent   acquitted    defendants    the   protective

exemptions available to other civil judgment debtors whose debt must be

enforced through execution. In James v. Strange, 407 U.S. 128, 92 S. Ct.

2027, 32 L. Ed. 2d 600 (1972), the United States Supreme Court held that a

Kansas recoupment statute violated the equal protection rights of indigent

defendants. 407 U.S. at 142, 92 S. Ct. at 2035, 32 L. Ed. 2d at 611. The

Kansas statute required the entry of a judgment against indigent defendants

for any expenditures made on their behalf to defend against criminal

charges. Id. at 130, 92 S. Ct. at 2029, 32 L. Ed. 2d at 604–05. Although the

judgment could be enforced like any other civil judgment, indigent

defendants were denied the exemptions available to other civil judgment

debtors. Id. at 135, 92 S. Ct. at 2031–32, 32 L. Ed. 2d at 607. The Court

held the State could not “impose unduly harsh or discriminatory terms

merely because the obligation is to the public treasury rather than to a

private creditor.”     Id. at 138, 92 S. Ct. at 2033, 32 L. Ed. 2d at 608–09;

accord Alexander v. Johnson, 742 F.2d 117, 124 (4th Cir. 1984) (stating one

“basic     feature[]    of   a    constitutionally      acceptable    attorney’s   fees

reimbursement program” is that “the defendant accepting court-appointed

counsel cannot be exposed to more severe collection practices than the

ordinary civil debtor”).

         The remedy for which the State advocates in the present case suffers

from the same deficiency as the remedy at issue in James. Enforcement of
                                        16

the cost judgment by contempt allows the State to bypass all the protections

enjoyed by civil judgment debtors under our execution and related statutes

and send Sluyter directly to jail. This potential constitutional infirmity may

explain why the legislature did not include a contempt remedy in chapter

815.    See generally State v. Haines, 360 N.W.2d 791, 795 (Iowa 1985)

(upholding statute requiring convicted defendant to repay court-appointed

attorney’s fees against equal-protection claim, noting this “sanction” was

“designed to instill responsibility in criminal offenders” and was “based on a

legitimate concern of the legislature, rehabilitation of the criminal defendant”

(emphasis added)).

       In view of the legislative history of the relevant statutes, the location of

section 909.5 in the Iowa Corrections Code, and the constitutional problems

raised in circumventing civil judgment collection protections, we conclude

section 909.5 does not authorize the power of contempt to enforce a civil cost

judgment such as the one entered against Sluyter.

       VI. Disposition.

       The district court has no authority to use its contempt power to

enforce the cost judgment entered against Sluyter, an acquitted defendant.

Accordingly, we remand this case for dismissal of the contempt proceedings.

       WRIT SUSTAINED.

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