
                        IN THE SUPREME COURT OF IOWA

                              No. 109 / 04-0815

                           Filed February 3, 2006

STATE OF IOWA,

      Appellee,

vs.

MARY JANE WIEDERIEN,

      Appellant.



      Appeal from the Iowa  District  Court  for  Dallas  County,  Peter  A.
Keller, Judge.


      Defendant appeals from an order continuing a  no-contact  order  under
Iowa Code section 708.12(2) (2003) after the  court  acquitted  her  of  the
underlying harassment charge.  REVERSED AND CASE REMANDED.

      Christopher Kragnes, Sr., and Tiffany  Koenig  of  Kragnes,  Tingle  &
Koenig, P.C., Des Moines, for appellant.

      Thomas  J.  Miller,  Attorney  General,  Kristin  Guddall,   Assistant
Attorney General, Wayne  Reisetter,  County  Attorney,  and  Stacy  Ritchie,
Assistant County Attorney, for appellee.



WIGGINS, Justice.
      The State charged  the  defendant  with  harassment  under  Iowa  Code
section 708.7(4) (2003).  At the initial appearance, the court issued a  no-
contact order requiring the defendant not to have contact with  the  alleged
victim.  The district court  acquitted  the  defendant  of  the  charge  but
continued the no-contact order pursuant to section  708.12(2).   Because  we
find the court does not have the authority  to  extend  a  no-contact  order
under section 708.12(2) after an acquittal, we reverse the judgment  of  the
district court  and  remand  the  case  for  the  court  to  issue  judgment
consistent with this opinion.
      I.  Background Facts and Proceedings.
      The State charged Mary Jane Wiederien with  harassment  in  the  third
degree under Iowa Code section 708.7(4).  The  alleged  harassment  involved
her conduct towards her physician.  The affidavit attached to the  complaint
alleged Wiederien  contacted  her  physician’s  office  via  mail  and  fax,
appeared to be following her physician, and filed a  complaint  against  her
physician with the Iowa Board of Medical Examiners.  At Wiederien’s  initial
appearance,  the  magistrate  issued  a  no-contact  order   under   section
708.12(1) ordering Wiederien to have no contact with her physician.
      After a bench trial, the magistrate  found  Wiederien  not  guilty  of
harassment in the third degree due to the State’s failure  to  prove  intent
to harass.  Even though the magistrate found Wiederien  not  guilty  of  the
criminal charge, he found Wiederien’s physician “had a legitimate  right  to
feel nervous and afraid,” and continued the no-contact order for  two  years
from the original issue date, with a limited  exception  allowing  Wiederien
to visit her physician’s neighbors.
      Wiederien appealed the magistrate’s  continuation  of  the  no-contact
order to the district court, claiming the magistrate could not continue  the
no-contact order upon a finding of not guilty.  The district court  affirmed
the magistrate’s decision.  Wiederien appeals.
      II.  Issue.
      Wiederien claims “[w]hen a defendant is found not guilty, the  court’s
jurisdiction ends; therefore, the court  no  longer  has  the  authority  to
continue a no contact order.”  We distinguish the court’s  lack  of  subject
matter jurisdiction from the court’s lack  of  authority  to  hear  a  case.
Christie  v.  Rolscreen  Co.,  448  N.W.2d  447,  450   (Iowa   1989).    “A
constitution or a legislative enactment confers subject matter  jurisdiction
on the courts.”  In re Estate of Falck, 672 N.W.2d  785,  789  (Iowa  2003).
The Iowa Code gives the district court subject matter jurisdiction to  enter
a no-contact order against a defendant who  is  prosecuted  for  harassment.
Iowa Code § 708.12(1)-(2).
      “ ‘[L]ack of authority to hear [a] particular case,’ ”  also  referred
to as “lack of jurisdiction of the case,” occurs when the court has  subject
matter jurisdiction but may not be able to act  in  a  particular  case  for
some reason. Christie, 448 N.W.2d at 450.  The crux  of  Wiederien’s  appeal
is that section 708.12(2) did not give the magistrate authority to  continue
a no-contact order after the court acquits the defendant of  the  underlying
harassment charge.  Consequently, we will determine whether  the  magistrate
had the authority to  continue  the  no-contact  order  after  he  acquitted
Wiederien on the charge of harassment.
      III.  Scope of Review.
      We must interpret Iowa Code section 708.12 to  determine  whether  the
district court has the authority to continue a  no-contact  order  after  it
acquits  a  defendant  on  the  underlying   harassment   charge.    Because
Wiederien’s appeal  raises  a  question  of  statutory  interpretation,  our
review is for correction of errors at law.   State  v.  Wolford  Corp.,  689
N.W.2d 471, 473 (Iowa 2004).
      IV.  Analysis.
      The Code provides:

           When a person arrested for harassment in  violation  of  section
      708.7 . . .   is   brought   before   a   magistrate    for    initial
      appearance . . . and the magistrate finds probable  cause  to  believe
      that a violation of section 708.7 . . .  has  occurred  and  that  the
      presence of or contact with the defendant poses a threat to the safety
      of the alleged victim, persons residing with the  alleged  victim,  or
      members of the alleged victim’s immediate family, the magistrate shall
      enter an order which shall require the defendant to  have  no  contact
      with the alleged victim, persons residing with the alleged victim,  or
      members of the alleged victim’s immediate family, and to refrain  from
      harassing the  alleged  victim,  persons  residing  with  the  alleged
      victim, or members  of  the  alleged  victim’s  immediate  family,  in
      addition to any other conditions of release determined and imposed  by
      the magistrate under section 811.2.

Iowa Code § 708.12(1).  The Code further provides:

      The order has force and effect until it is modified or  terminated  by
      subsequent court action in a contempt proceeding or  the  criminal  or
      juvenile court action and is reviewable in the  manner  prescribed  in
      section 811.2.  Upon final disposition of  the  criminal  or  juvenile
      court action, the court shall make a  determination  whether  the  no-
      contact order should be modified or terminated.   If  a  defendant  is
      convicted for, receives a deferred judgment for, or pleads guilty to a
      violation of section 708.7 . . . the court shall modify the no-contact
      order issued by the magistrate to provide that  the  no-contact  order
      shall continue in effect for a period of five years from the date that
      the  judgment  is  entered  or  the  deferred  judgment  is   granted,
      regardless of whether the defendant is placed on probation.

Id. § 708.12(2) (emphasis added).
      When confronted with the task of  statutory  interpretation,  we  have
stated:

      The goal of statutory construction is to determine legislative intent.
       We  determine  legislative  intent  from  the  words  chosen  by  the
      legislature, not  what  it  should  or  might  have  said.   Absent  a
      statutory definition or an established meaning in the  law,  words  in
      the statute are given their ordinary and common meaning by considering
      the  context  within  which  they  are  used.   Under  the  guise   of
      construction,  an  interpreting  body  may  not  extend,  enlarge   or
      otherwise change the meaning of a statute.
Auen  v.  Alcoholic  Beverages  Div.,  679  N.W.2d  586,  590  (Iowa   2004)
(citations omitted).
      We resort to “the rules of statutory construction only when the  terms
of [a] statute are ambiguous.”  IBP, Inc. v. Harker,  633  N.W.2d  322,  325
(Iowa 2001).  If reasonable persons can disagree on a statute’s meaning,  it
is  ambiguous.   State  v.  Ahitow,  544  N.W.2d  270,  272   (Iowa   1996).
“Ambiguity may arise in two  ways:   (1)  from  the  meaning  of  particular
words; or (2) from the general scope and meaning of a statute when  all  its
provisions are examined.”  Holiday Inns Franchising, Inc. v.  Branstad,  537
N.W.2d 724, 728 (Iowa 1995).
      Section 708.12 is ambiguous because it is susceptible to two meanings.
  We  could  interpret  the  word  “disposition”  in  section  708.12(2)  to
encompass an acquittal; in such a case, the court would have  the  authority
to extend the no-contact order upon Wiederien’s acquittal.   An  alternative
interpretation could be made based on the  language  in  section  708.12(2),
which specifically sets forth a framework to continue the  no-contact  order
when a defendant’s guilt is established but fails to provide  any  framework
when  the  defendant  is  acquitted.   This  language   could   evidence   a
legislative intent that the court does not have the  authority  to  continue
the no-contact order when it acquits the defendant.  In  this  instance,  we
could conclude the legislature used the word “disposition”  to  encompass  a
finding of delinquency in a juvenile court action as well  as  a  conviction
in a criminal proceeding.
      When we find an ambiguity, we have stated:

           To resolve the ambiguity and  ultimately  determine  legislative
      intent, we consider (1) the language of the statute; (2)  the  objects
      sought to be accomplished; (3) the evils sought to  be  remedied;  and
      (4) a reasonable  construction  that  will  effectuate  the  statute’s
      purpose rather than one that will defeat it.
State v. Green, 470 N.W.2d 15, 18  (Iowa  1991).   We  do  not  interpret  a
statute so broadly that our interpretation “threaten[s]  the  constitutional
due process prohibitions  against  vagueness  and  uncertainty.”   State  v.
Pace, 602 N.W.2d 764, 771 (Iowa 1999).
      The Due Process Clause of  the  Fourteenth  Amendment  to  the  United
States Constitution prohibits vague statutes.  State  v.  Reed,  618  N.W.2d
327, 332 (Iowa 2000).  A statute is void for vagueness if it  lacks  clearly
defined prohibitions.  Grayned v. City of Rockford, 408 U.S.  104,  108,  92
S. Ct. 2294, 2298, 33 L. Ed. 2d 222, 227 (1972).  The  values  protected  by
the void-for-vagueness doctrine are:

      First, because we assume that man is free to steer between lawful  and
      unlawful conduct, we insist that laws  give  the  person  of  ordinary
      intelligence a reasonable opportunity to know what is  prohibited,  so
      that he may act accordingly.  Vague laws may trap the innocent by  not
      providing fair  warning.   Second,  if  arbitrary  and  discriminatory
      enforcement is to be prevented, laws must provide  explicit  standards
      for those who apply them.  A vague law impermissibly  delegates  basic
      policy matters to policemen, judges, and juries for resolution  on  an
      ad hoc and subjective basis, with the attendant dangers  of  arbitrary
      and discriminatory application.  Third, but  related,  where  a  vague
      statute  “abut[s]  upon  sensitive  areas  of  basic  First  Amendment
      freedoms,” it “operates to inhibit the exercise of [those]  freedoms.”
      Uncertain meanings inevitably lead citizens to “ ‘steer far  wider  of
      the unlawful zone’ . . . than if the boundaries of the forbidden areas
      were clearly marked.”
Id. at 108-09, 92 S. Ct. at 2298-99, 33 L. Ed. 2d at 227-28 (alterations  in
original) (citations omitted).
      Section 708.12(2) provides the court with the authority to extend a no-
contact order “[i]f a  defendant  is  convicted  for,  receives  a  deferred
judgment for, or pleads guilty to  a  violation  of  section  708.7.”   This
language  clearly  informs  the  court  and   the   defendant   under   what
circumstances the court will extend a no-contact order.   Section  708.12(2)
does not contain any similarly express standards or guidelines  as  to  when
the court may extend a no-contact order when the court acquits a  defendant.

      The magistrate continued the no-contact order because “the  victim  in
this case had a legitimate right to feel nervous and  afraid.”   Nowhere  in
the statute did the legislature give the magistrate the authority to  extend
a no-contact order on an acquittal when the victim felt nervous and  afraid.
  The  legislature’s  failure  to  define  the  burden  of  proof  and   the
circumstances in which a court  can  extend  a  no-contact  order  after  an
acquittal not only fails to give the defendant notice as to when  the  court
will extend the order, but also leads to  an  arbitrary  and  discriminatory
enforcement of the statute on an ad hoc and  subjective  basis.   Therefore,
to avoid  an  interpretation  of  section  708.12(2)  that  jeopardizes  the
constitutional due process proscriptions against vagueness and  uncertainty,
we hold section 708.12(2) does not give the court the authority to  continue
a no-contact order when the defendant is acquitted.
      V.  Disposition.
      Because we hold Iowa Code section 708.12(2) does not  give  the  court
the authority to continue a no-contact order when it acquits a defendant  on
the harassment charge, we reverse the judgment of  the  district  court  and
remand the case for  the  court  to  issue  judgment  consistent  with  this
opinion.
      REVERSED AND CASE REMANDED.
      All justices concur except Cady, J., who dissents.
                                #109/04-0815, State v. Wiederien
CADY, J. (dissenting).
      I respectfully dissent.  The majority declares  the  existence  of  an
ambiguity in the  statute  based  upon  two  possible  interpretations,  and
concludes we must adopt one interpretation over the other because the  other
interpretation would  render  the  statute  unconstitutional.   First,  this
approach is based on the false premise that the interpretation according  to
the plain language of the statute would be unconstitutional.  Second,  as  a
method of statutory interpretation, it fails to consider other  interpretive
aids and fails to scrutinize the language  of  the  statute  to  reveal  the
intent of our legislature.  I believe we  are  required  to  interpret  this
statute as it is written to permit courts to determine the duration  of  no-
contact orders at the conclusion of the underlying criminal case,  including
those instances when the case concludes  with  acquittal.   The  failure  to
interpret the statute in this manner means it is doomed to fail  to  achieve
its goal of protecting victims of harassment and stalking.
      The majority  concludes  the  statute  would  be  unconstitutional  if
interpreted to permit courts to extend no-contact orders in the event of  an
acquittal.  The majority reasons this interpretation of  the  statute  would
violate due process because such a grant of power to the court  to  continue
the no-contact order following an acquittal has no standard to  support  the
adjudication, while the statute is  able  to  utilize  the  reasonable-doubt
standard from the criminal case to support the  continuation  of  no-contact
orders in the event of a disposition involving guilt.  In other  words,  the
perceived vagueness is overcome by the prior  finding  of  guilt  under  the
reasonable-doubt  standard.   However,  this  approach  overlooks  that  no-
contact orders under the statute are collateral matters  to  the  underlying
criminal proceeding, entered by the court based upon a  standard  much  less
exacting than the standard to support guilt in a criminal  case.   Thus,  an
acquittal of the underlying criminal charge does  not  undermine  or  affect
the validity of the prior no-contact order, which is  civil  in  nature  and
based only upon a determination of probable cause and a need to protect  the
safety of another.  Surely, evidence that does not establish guilt beyond  a
reasonable doubt and results in an acquittal in a criminal case can  support
relief in a civil case.  See State v. One  Certain  Conveyance,  316  N.W.2d
675, 678 (Iowa 1982) (“ ‘In criminal actions the burden of proof is  “beyond
a reasonable doubt,” while in civil  actions  the  burden  is  “proof  by  a
preponderance of the evidence.”   Therefore,  an  acquittal  in  the  former
action serves to show only that  the  government  did  not  prove  beyond  a
reasonable doubt that the defendant committed  the  crime.   This  does  not
mean that the more lenient civil burden of  preponderance  of  the  evidence
could not have been satisfied.  Therefore, the government  in  a  subsequent
civil action should not be precluded from attempting to prove an issue by  a
preponderance of the evidence merely because it did not sustain  the  burden
of proof beyond a reasonable  doubt.’ ”  (quoting  Allan  D.  Vestal,  Issue
Preclusion and Criminal Prosecutions, 65 Iowa  L. Rev.  281,  335  (1980))).
Moreover, due process is not offended because the statute fails  to  specify
a specific standard to support the continuance of a no-contact  order  under
one circumstance (acquittal), while it can rely on the  criminal  burden  of
proof to support  the  continuance  of  a  no-contact  order  under  another
circumstance (guilt).
      We are obligated to presume statutes to be constitutional, and we  are
further obligated to give them any reasonable construction possible to  make
them constitutional.  State v. Millsap, 704 N.W.2d  426,  436  (Iowa  2005);
see also State v. White, 545 N.W.2d 552, 557 (Iowa 1996)  (stating  a  party
claiming a statute is void for vagueness “bears a heavy burden to  show  the
statute  ‘clearly,  palpably,   and   without   a   doubt,   infringes   the
constitution’ ” (citations omitted)); In re Hochmuth, 251 N.W.2d  484,  488-
89 (Iowa  1977)  (“[A]  statute  otherwise   unconstitutional   because   of
vagueness may be salvaged by a  limiting  interpretation  which  brings  the
application of the statute within constitutional bounds.”).  In this  light,
it is permissible to draw upon other  statutes  to  clarify  how  a  statute
operates in order to save it from attack based on  uncertainty.   1A  Norman
J. Singer, Statutes and Statutory Construction § 21.16, at 226-28  (6th  ed.
2002) [hereinafter Singer]; accord Merritt v.  Council  Bluffs  Civil  Serv.
Comm’n, 458 N.W.2d 867, 869 (Iowa Ct. App. 1990) (“[I]f a statute’s  meaning
is fairly ascertainable by reference to . . . similar statutes, . .  .  then
a statute will not be considered unconstitutionally  vague.”  (citing  State
v. McKee, 392 N.W.2d 493,  494  (Iowa  1986);  Williams  v.  Osmundson,  281
N.W.2d 622, 625 (Iowa 1979))).  This means we may look  beyond  the  statute
to determine the standard of proof when  it  is  absent  from  the  statute.
Perez v. Cleveland, 678 N.E.2d 537, 540 (Ohio 1997) (citation omitted).
      In this case, the vagueness claim exists because the  statute  directs
the court to determine if  the  “no-contact  order  should  be  modified  or
terminated” upon final disposition of the criminal case, but then  fails  to
specify a burden of proof.  Iowa Code § 708.12(2).  The majority is  willing
to draw upon the criminal standard when the final disposition  is  based  on
guilt to sidestep the statutory uncertainty, but  is  unwilling  to  further
draw upon the civil standard of a preponderance of the  evidence  applicable
to similar injunctions under the statute governing domestic abuse,  as  well
as injunctions in general.  See id. § 236.4(1)  (imposing  preponderance-of-
evidence standard  in  domestic  abuse  proceedings  where  relief  includes
protective orders); Kennedy v. Oleson, 251 Iowa 418, 421,  100  N.W.2d  894,
896 (1960)  (burden  of  proof  for  an  injunction  is   preponderance   of
evidence); 42 Am. Jur. 2d Injunction § 265, at 848 (2000) (same).   However,
under  the  standards  applied  to  vagueness  claims   involving   statutes
pertaining to civil matters, other than First Amendment claims  perhaps,  we
are obligated to read the appropriate standard of proof into the statute  to
save it from attack.  See MRM, Inc. v. City of Davenport,  290  N.W.2d  338,
344-45 (Iowa  1980)  (“Ordinarily  a  ‘significantly  higher’  standard   of
certainty is required when a vagueness challenge is made in the  context  of
a  criminal  prosecution  than  in  situations  involving  civil  remedies.”
(citing Williams, 281 N.W.2d at 625; Knight v. Iowa Dist.  Ct.,  269  N.W.2d
430, 432 (Iowa 1978); State ex rel. Turner v. Koscot  Interplanetary,  Inc.,
191 N.W.2d 624, 629 (Iowa 1971))); accord Winters  v.  New  York,  333  U.S.
507, 515, 68 S. Ct. 665, 670, 92 L Ed. 840, 849 (1948)  (“The  standards  of
certainty in statutes  punishing  for  offenses  is  higher  than  in  those
depending primarily upon civil sanction for enforcement.”).
      This means  we  can  safely  declare  that  the  preponderance-of-the-
evidence standard applies under the  statute  to  guide  the  court  in  its
statutory obligation “upon final disposition in a criminal or civil  action”
to “make a determination whether the no-contact order should be modified  or
terminated.”  Iowa Code § 708.12(2).  Moreover,  this  preponderance-of-the-
evidence standard applies whether the final disposition is an  acquittal  or
some form of guilt.[1]  Thus, under the statute,  the  court  considers  the
evidence presented in the criminal or juvenile proceeding to decide  if  the
no-contact order should be modified or terminated in accordance  with  those
standards  applicable  to  continuing,  modifying,   or   dissolving   other
injunctions.  See Uncle B’s Bakery, Inc. v. O’Rourke,  938  F.  Supp.  1450,
1459 (N.D. Iowa 1996) (court would not vacate  temporary  injunction  unless
there no longer was any threat of harm).  The task in this case  is  not  to
declare the statute to be unconstitutional  but  to  strive  to  give  it  a
construction to uphold it, rather than to defeat it.
      In addition to its vagueness reasoning, the majority  also  bases  its
conclusion on the speculation that the legislature’s failure  to  include  a
“framework to continue  the  no-contact  order”  upon  an  acquittal  “could
evidence a legislative intent that the court does not have the authority  to
continue the no-contact order when it acquits the defendant.” The  principle
of  statutory  interpretation  impliedly  relied  on  by  the  majority   is
expressio unius est exclusio alterius.   See  Black’s  Law  Dictionary  1635
(7th ed. 1999) (defining the maxim as “[t]he expression of one thing is  the
exclusion of another”);  accord  Locate.Plus.Com,  Inc.  v.  Iowa  Dep’t  of
Transp., 650 N.W.2d 609, 618 (Iowa 2002) (“Generally,  the  express  mention
of one thing  in  a  statute  implies  the  exclusion  of  others.”  (citing
Callender v. Skiles, 591 N.W.2d 182, 186 (Iowa 1999))).  It means that  when
a statute designates its manner of performance and operation as to  one  set
of facts, there is  an  inference  that  all  omissions  are  understood  as
exclusions.  2A Singer § 47.23, at 304-07; see,  e.g.,  Dotson  v.  City  of
Ames, 251 Iowa 467, 472, 101 N.W.2d 711, 714 (1960) (“[B]y granting  control
over animals running at large the legislature  has  clearly  excluded  power
over those confined.”).  As applied to this  case,  this  maxim  would  mean
that because section 708.12 provides the specific circumstances when  a  no-
contact order is required to be continued for five  years,  the  legislature
impliedly intended to prohibit the continuation of the order  in  any  other
circumstance.  This maxim, on the  surface,  tends  to  support  the  result
reached by the majority.
      Yet, the maxim is only a rule of statutory construction; it is  not  a
rule of law.  See 2A Singer § 47:23,  at  315  (“This  rule  is  a  rule  of
statutory construction and not a rule of law.”); id.  §47:24,  at  319  (“It
acts merely  as  an  aid  to  determine  legislative  intent  and  does  not
constitute a rule of law.”); id. § 47:25, at 325-26  (“ ‘The  maxim  .  .  .
requires great caution in its application, and in all  cases  is  applicable
only under certain conditions.’ ”); id. § 47:25, at 332 (“The maxim  is  not
a rule of substantive law but one of statutory construction and thus  should
be used with care.”).  Moreover, the application of the maxim in  this  case
would render the following sentence in the statute a nullity:   “Upon  final
disposition of the criminal or juvenile court action, the court  shall  make
a  determination  whether  the  no-contact  order  should  be  modified   or
terminated.”  Iowa Code  §  708.12(2).   “ ‘It  is  an  elementary  rule  of
construction that effect must be given, if possible, to every  word,  clause
and sentence of a statute.’ ”  2A Singer § 46:06, at 181; accord  Miller  v.
Marshall County, 641 N.W.2d 742, 749 (Iowa 2002) (“Each term [in a  statute]
is to be given effect, so that no single part is rendered  insignificant  or
superfluous.” (Citation omitted.)).  If the legislature  only  intended  no-
contact orders to be modified by requiring them to  be  continued  for  five
years, and that  this  action  only  could  be  taken  in  the  event  of  a
disposition of guilt, there would be no  reason  to  include  the  preceding
sentence directing the court to decide if no-contact orders entered  at  the
initial appearance  should  be  continued  upon  final  disposition  of  the
underlying case.  We are obligated to  give  effect  to  all  provisions  in
interpreting the statute.  Id.; 2A Singer § 46:06, at 181.
       From  my  reading  of  section  708.12,  it  is  apparent  that   the
legislature wanted the  court  to  determine  the  duration  (and  make  any
modification) of all no-contact orders in all instances  at  the  conclusion
of the underlying case.  Certainly, the safety of others was  the  paramount
concern of the legislature in providing for a  no-contact  order,  and  this
concern supports this approach.   Once  the  court  has  determined  at  the
beginning of the case that the safety of another is in  jeopardy,  and  that
the person needs the protection of a no-contact  order,  such  findings  are
not diminished, in any fashion, because the  offender  is  ultimately  found
not to have committed the underlying crime beyond a  reasonable  doubt.   An
acquittal in a criminal case in no way means that the victim  is  no  longer
at risk or that there was no probable cause that the  defendant  engaged  in
harmful conduct  to  support  safety  concerns  of  the  victim.   Thus,  in
addition to instructing the court to  determine  the  duration  of  the  no-
contact order at the conclusion of the underlying case, the  statute  merely
provides that if the defendant is in fact found guilty of a crime, then  the
no-contact order must continue for five years even if  the  defendant  would
be monitored on probation.  It appears the  legislature  include  the  five-
year provision for two reasons:  (1) to provide long-term protection  for  a
victim in those circumstances when the  defendant’s  conduct  constituted  a
crime, and (2) to make certain  courts  would  not  terminate  a  no-contact
order simply because the defendant would be  supervised  on  probation.   In
other words, the legislature wanted to make  certain  that  probation  could
not be used as a justification or basis  to  terminate  a  no-contact  order
when the court performs its duty to “determine whether the no-contact  order
should be modified or terminated” upon final  disposition  of  the  criminal
case.  Iowa Code § 708.12(2).
      In the  end,  the  inescapable  conclusion  is  that  our  legislature
properly assumed under section 708.12 that a no-contact order entered  by  a
magistrate would  not  automatically  terminate  at  the  conclusion  of  an
underlying proceeding, and the legislature wanted  the  court  to  determine
the status or duration of the no-contact order at the final  disposition  of
the underlying case, subject only to a few mandated outcomes  under  certain
circumstances relating to a disposition of guilt.
      A criminal charge of harassment or stalking has two general  outcomes.
It can result in a disposition of  guilt  or  a  disposition  of  acquittal.
Notwithstanding, the  need  to  protect  the  victim  does  not  necessarily
disappear with an acquittal.  In fact, an acquittal may give rise to even  a
greater urgency to protect the victim.   Thus,  under  either  outcome,  the
need to protect the victim is  present.   Our  legislature  would  not  have
enacted a scheme, as  found  by  the  majority,  to  provide  for  continued
protection of the victim in one circumstance, but not the  other.   I  would
hold that  the  district  court  properly  continued  the  no-contact  order
entered in this case following the acquittal.

-----------------------
      [1]It is not particularly unusual for our legislature to refrain  from
specifically declaring the standard for the continuance or  modification  of
an injunction, as well as the issuance  or  dissolution  of  an  injunction.
See, e.g., Iowa Code § 99.2 (setting forth procedure to enjoin operation  of
a gambling or prostitution house as a nuisance, but not containing  standard
upon  which  injunction  will  issue).   In  fact,  our  rules  of  practice
governing injunctions do not specify any standard of proof.   See  Iowa  Rs.
Civ. P.  1.1501-11.  Instead,  we  imply  the  preponderance-of-the-evidence
standard applicable to civil proceedings, unless otherwise  specified.   See
Kennedy, 251 Iowa at 421, 100 N.W.2d at 896; Fed. Land Bank v. Swanson,  438
N.W.2d 765, 767 (Neb. 1989) (party seeking injunction must  establish  claim
by a preponderance of the evidence).

