(dissenting).
I dissent because section 558.46 does not clearly provide for criminal, as opposed to civil, punishment. In such a case, doubts must be resolved in favor of the defendant. See Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493, 497 (1971) (“[Ajmbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”).
The majority holds that section 558.46(2) is a criminal provision because it uses the word “fine.” While use of the word “fine” is probative, it is not determinative. 36A C.J.S. Fines § 2, at 206 (2003) (“[T]he terms ‘fine’ and ‘penalty’ are often used synonymously, and there is authority that the term ‘fíne’ is broad enough to include penalties for the violation of law which are recoverable in civil actions even though such violation is made neither a misdemeanor nor a felony.” (Footnotes omitted.)); see also State ex rel. Howell County v. W. Plains Tel. Co., 232 Mo. 579, 135 S.W. 20, 21-22 (1911) (finding that a statute was not criminal, even though the statute used the word “fine,” because it contained many other characteristics more consistent with civil penalties); State v. Johnson, 1 Or.App. 363, 462 P.2d 687, 689-90 (1969) (holding that a statute was not criminal, even though it imposed a “fine” on any political candidate who belatedly filed a statement of campaign contributions).
Ultimately, when determining for the first time whether a statute imposes civil or criminal sanctions, “we must seek out and give effect to the intention of the legislature.... ” Lenertz v. Mun. Ct., 219 N.W.2d 513, 515-16 (Iowa 1974) (holding-after considering the statute’s whole text, legislative history, and purpose — that a consumer fraud provision did not impose criminal sanctions); see 36A C.J.S. Fines § 2, at 206 (“The true significance of [the *478term ‘fine’], when used in a statute or constitution, must be ascertained according to the ordinary methods of interpretation.”). In this case, I believe the legislature used the word “fine” in its broad sense: simply “a payment extracted by the government and payable to the government.” Coleman v. Watt, 40 F.8d 255, 263 (8th Cir.1994). This definition, without further clarification, could apply to a civil forfeiture as well as a criminal punishment.
It is true, as the majority concludes, that our laws have criminalized acts of omission as well as commission. However, even the omission-crime statutes cited by the majority clearly state they are crimes. For example, Iowa Code section 422.25(5) makes failure to file a tax return a fraudulent practice. Fraudulent practices in turn are declared to be simple misdemeanors to class “C” felonies under Iowa Code sections 714.9-.13. Similarly, failure of a sex offender to register is stated by section 692A.7 to be an aggravated misdemeanor to a class “D” felony, depending on the number of offenses. In contrast, section 558.46(2) does not say what level of “crime” it is (e.g., simple or aggravated misdemeanor) or that a violation is a crime at all.
Another important factor in determining whether this is civil or criminal is the placement of the section in question — a decision made here by the legislature, not the code editor. Section 558.46 is in the chapter on conveyances, not in the criminal provisions of the Code. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 2082, 138 L.Ed.2d 501, 514-15 (1997) (finding that the state’s objective to create a civil proceeding was evidenced by its placement in the probate code instead of in the criminal code). Notwithstanding this general rule, the Iowa legislature has placed one criminal provision in the conveyancing chapter. See Iowa Code § 558.40. However, it did so not by implication, but by clearly stating that a violation of that section is a crime. That section provides:
Any officer, who knowingly misstates a material fact in either of the certificates mentioned in this chapter, shall be liable for all damages caused thereby, and shall be guilty of a serious misdemeanor.
Id. (emphasis added). If the legislature truly intended criminal sanctions for a violation of section 558.46, it should have included equally clear language.
In sum, we should never recognize a crime by inference or implication. As the Supreme Court has said:
[W]hen choice has to be made between two readings of what conduct [the legislature] has made a crime, it is appropriate, before we choose the harsher alternative, to require that [the legislature] should have spoken in language that is clear and definite.
United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 229, 97 L.Ed. 260, 264 (1952). Before we conclude, as the majority has, that a violation of section 558.46 is a crime, we should await clear and definite language from the legislature stating as much. I would reverse.
CADY, J., joins this dissent.