IN THE COURT OF APPEALS OF IOWA
No. 12-1815
Filed April 30, 2014
IN RE THE DETENTION OF
GALEN KENDRICK SHAFFER,
GALEN KENDRICK SHAFFER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, District Judge.
Galen Kendrick Shaffer challenges the district court’s denial of his request
for a final review hearing pursuant to Iowa Code Iowa Code section 229A.8.
WRIT SUSTAINED, CASE REMANDED FOR FURTHER PROCEEDINGS.
Michael Adams, Local Public Defender, Thomas Gaul, Special Defense
Unit, and Michelle Grau, Legal Intern, for appellant.
Thomas J. Miller, Attorney General, John McCormally, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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MCDONALD, J.
Galen Kendrick Shaffer challenges the district court’s denial of his request
for a final hearing pursuant to Iowa Code section 229A.8 to determine whether
he can be discharged from his commitment as a sexually violent predator or
placed in a transitional release program. Shaffer contends relevant and reliable
evidence at his annual review rebuts the presumption of continued commitment
such that a reasonable person would believe a final hearing should be held. We
agree.
I.
Certiorari actions are reviewed for correction of errors at law. See Taft v.
Iowa Dist. Ct., 828 N.W.2d 309, 312 (Iowa 2013). In reviewing certiorari actions,
we examine “only the jurisdiction of the district court and the legality of its
actions.” Id. (citation and quotation marks omitted). “Illegality exists when the
court’s factual findings lack substantial evidentiary support, or when the court has
not properly applied the law.” Id. (citation and quotation marks omitted).
II.
On March 17, 2010, Shaffer was civilly committed pursuant to Iowa Code
chapter 229A (2009) as a sexually violent predator. Under the statute, there is a
rebuttable presumption in favor of extending the civil commitment of a sexually
violent predator. See Iowa Code § 229A.8(1). However, “[r]ecognizing that civil
commitment proceedings must comport with the Due Process Clause, the
general assembly established a protocol for periodic reviews of the status of
each committed person.” Taft, 828 N.W.2d at 312. “The protocol includes an
annual examination of a committed person's mental abnormality. A report of the
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results of each annual examination must be submitted to the court that ordered
the committed person's commitment.” Id. at 312-13. The committed person can
rebut the presumption of continued commitment at the annual review stage and
seek discharge or placement in a transitional release program by establishing
facts sufficient to warrant a “final hearing” to determine whether the “committed
person no longer suffers from a mental abnormality which makes the person
likely to engage in predatory acts constituting sexually violent offenses if
discharged, or the committed person is suitable for placement in a transitional
release program.” Iowa Code § 229A.8(1).
In 2012, in conjunction with his annual examination and the preparation of
his annual report, Shaffer petitioned for discharge or placement in a transitional
release program. See Iowa Code § 229A.8(4) (2011). At Shaffer’s annual
review, the court received reports from two experts: Dr. Tracy A. Thomas for the
State; and Dr. Richard Wollert for Shaffer. The district court briefly summarized
the content of the two reports, set forth the correct statutory standard, and
concluded as follows: “The Court having reviewed the annual report of the state
and the report by Dr. Wollert of the respondent, the Court finds the respondent
has failed to meet his said burden.” The court did not make any findings or set
forth any explanation for its conclusion that Shaffer failed to meet his burden.
The legal standard for determining whether the facts are sufficient to
warrant a “final hearing” is set forth in chapter 229A. The relevant standard, as
explained in Taft, is as follows:
[U]nder section 229A.8(5)(e)(1), a committed person is entitled to a
final hearing if the court, upon consideration of all the evidence
presented at the annual review, finds the committed person has
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proved by a preponderance of the relevant and reliable evidence
that a reasonable person would believe a hearing should be held to
determine whether (a) the mental abnormality of the committed
person has so changed that the person is not likely to engage in
predatory acts constituting sexually violent offenses if discharged or
(b) the committed person is suitable for placement in a transitional
release program. This standard for determining whether a final
hearing is required is satisfied if a reasonable person would find,
from the relevant and reliable evidence presented at the annual
review stage, that the committed person has more likely than not
generated a fact question on either of the issues enumerated in
section 229A.8(5)( e )(1)( a ) or ( b ).
Taft, 828 N.W.2d at 318.
In applying the statutory standard, we note three things of import. First,
“although the rules of evidence are not controlling at the annual review stage, we
conclude the general assembly attached to the words ‘relevant and reliable’
meanings commonly assigned to them in our jurisprudence.” Id. at 319. Thus,
the district court, in reviewing the request for final hearing, has the authority to
evaluate the quality of the evidence offered on the issues and can eschew any
evidence that is not “relevant and reliable.” Second, the grounds for a final
hearing are set forth in the disjunctive. That is, the committed person establishes
an entitlement to a final hearing by generating a fact question “on either of the
issues enumerated in section 229A.8(5)(e)(1)(a) or (b).” Id. at 318 (emphasis
added). Third, Taft indicates that the requisite showing is something less than
that required to survive a motion for summary judgment. That is, the committed
person is not required to generate a question of fact. Instead, the committed
person only has to show by a preponderance of the evidence that he or she
“more likely than not generated a fact question . . . .” Id. (emphasis added). With
these things in mind, we turn our attention to the question presented.
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We first address whether Shaffer more likely than not generated a fact
question on the issue of whether he is suitable for placement in a transitional
release program pursuant to subparagraph (b). A committed person is suitable
for placement in a transitional release program only if the court finds that he or
she has satisfied all of the conditions set forth in Iowa Code section 229A.8A(2).
Further, the committed person must agree to the conditions of release and agree
to register as a sex offender. See Iowa Code § 229A.8A(3) and (4). Here, Dr.
Thomas’s report evaluated whether Shaffer met each of the conditions set forth
in section 229A.8A(2), concluding that Shaffer did not satisfy six of the nine
conditions for placement in a transitional release program. Shaffer’s expert’s
report did not at all address the conditions for placement pursuant to
subparagraph (b). Accordingly, Shaffer failed to generate a question of fact on
this issue. See Taft, 828 N.W.2d at 323 (holding no fact question created where
undisputed evidence showed SVP was not statutorily eligible for transitional
release).
We next address whether Shaffer more likely than not generated a
question of fact on the issue of whether his mental abnormality has so changed
that he is not likely to engage in predatory acts constituting sexually violent
offenses if discharged pursuant to subparagraph (a). Dr. Thomas’s report noted
that Shaffer was previously found to suffer the mental abnormality of pedophilia.
The report found that Shaffer reported continued sexual attraction to children and
teenagers. Dr. Thomas could not opine whether the disorder was resolved or
otherwise manageable because Shaffer had been committed in a secured facility
and needed to be in a more independent living environment before that
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determination could be made. Dr. Thomas further opined that dynamic risk
factors made it more likely than not that Shaffer would reoffend. In contrast, Dr.
Wollert concluded that the State’s actuarial risk models were inherently flawed or
misapplied to Shaffer. For example, Dr. Wollert’s report states that one of the
State’s actuarial risk models is so psychometrically flawed that it was withdrawn
from use by its developer. Dr. Wollert further opined, based on a personal
interview and assessment of Shaffer and the application of a purportedly more
sound actuarial risk model, Shaffer no longer suffers from a mental abnormality
and is unlikely to engage in predatory acts constituting sexually violent offenses if
discharged.
Chapter 229A does not require a “mini-trial” on the evidence presented at
the annual review on questions that ultimately will be decided at a final hearing, if
granted. See Taft, 828 N.W.2d at 317. The ultimate weight to be given to the
evidence is for the finder of fact at the final hearing. See id. at 321. All that is
required at the annual review stage is the committed person establish through
relevant and reliable evidence that there is more likely than not a question of fact
on one of the two statutory grounds for final hearing. With respect to expert
opinion evidence, the first step in the analysis is determine whether the expert’s
opinion meets “the threshold level of reliability for technical or specialized
knowledge.” See id. at 320-21. Taft provides that the threshold test for
“reliability” of an expert’s opinion “is generally assured by the district court’s
enforcement of rule 5.702 requiring experts be qualified ‘by knowledge, skill,
experience, training, or education.” Id. at 319. Dr. Wollert holds a Ph.D. in
clinical psychology. He is a tenured professor and licensed clinical psychologist.
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He has significant experience in the area, treating over 1000 sex offenders and
being retained in over 200 sexual predator cases. He has published thirteen
articles on the risk and diagnostic status of sex offenders. He conducts training
and other presentations on the topic of evaluating sex offenders, including
conducting a training for the State at the Civil Commitment Unit for Sexual
Offenders at the Cherokee Mental Health Institute where Shaffer is committed.
In short, his report is “reliable” within the meaning of the statute and Taft. See
Iowa Code § 229A.8(5)(e)(1); Taft, 828 N.W.2d at 320-21.
Once the “threshold of reliability” is met, the “next inquiry under section
229A.8(5)(e) [is] whether the evidence raised a factual question regarding Taft’s
continuing dangerousness or his suitability for transitional release.” Taft, 828
N.W.2d at 321. “The appropriate inquiry” at this stage is not determining whether
the persuasive force of one opinion exceeds the other; rather it is determining
whether it is more likely than not a fact question was generated. See id. Here,
Dr. Wollert’s report gives an unequivocal opinion that Schaffer is no longer
“positive for suffering from a mental abnormality.” Dr. Wollert also opines that
Schaffer “is unlikely to engage in predatory acts constituting sexually violent
offenses if unconditionally discharged.” The report also provides Dr. Wollert
holds those opinions to a reasonable degree of certainty. This opinion is in direct
contradiction to the State’s expert report on the material issue presented.
Schaffer has thus carried his burden of establishing it is more likely than not that
he generated a fact question on whether he is likely to commit acts constituting
sexually violent offenses. The district court erred in holding otherwise.
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III.
For the foregoing reasons, Shaffer’s petition for writ of certiorari is
sustained. The district exceeded its jurisdiction and otherwise acted illegally in
denying Shaffer’s request for final hearing. This matter is remanded to the
district court for further proceedings.
WRIT SUSTAINED, CASE REMANDED FOR FURTHER
PROCEEDINGS.
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VOGEL, P.J. (concurring in part and dissenting in part)
I concur that the writ should be sustained but respectfully dissent from the
majority’s application of the Taft test. I believe, that in applying the Taft test to
these facts, the majority has exceeded our limited role of appellate review of a
certiorari action. That role is circumscribed by our standard of review, which is
for correction of errors at law, not de novo. Matlock v. Weets, 531 N.W.2d 118,
121 (Iowa 1995). Therefore, we should not be applying the Taft test to these
facts but should remand to allow the district court to carry out its statutory
directive, a role within its exclusive purview.
As the majority notes, the district court did not have the guidance of Taft
when it denied Shaffer a final hearing. When the district court does not have the
guidance of a particular test or applies the incorrect standard, “we remand for
new findings and application of the correct standard.” State v. Robinson, 506
N.W.2d 769, 770–71 (Iowa 1993). Even when a new test is articulated during the
pendency of an appeal, the correct remedy is to remand the case to the district
court so it may apply the proper test. See State v. Showens, ___ N.W.2d ___,
2014 WL 1400080, at *12-13 (Iowa 2014) (remanding the case where it was
unclear whether the district court applied the correct standard, the supreme court
outlined the proper standard in its current decision, and the supreme court noted
that “we are not the trier of fact”).
As guidance, our supreme court recognized in Taft that the 2009
amendment to the statute “enhance[d] the level of scrutiny applied by the district
court in making the decision on a request for a final hearing. The court must now
consider all of the evidence presented and in deciding whether the committed
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person has met his burden, weigh only evidence that is reliable.” 828 N.W.2d at
318. First the district court must determine what evidence is relevant. Id.
Having referenced both experts’ opinions in its ruling, relevance does not appear
to be an issue in this case. Next, the district court must determine the reliability
of such evidence. Id. at 319. This was not done in this case, and it is not our
role to take on that task with our limited judicial review. Next, the district court
must “weigh only evidence that is reliable” to determine whether, as proved by a
preponderance of the evidence,
a reasonable person would believe a hearing should be held to
determine whether (a) the mental abnormality of the committed
person has so changed that the person is not likely to engage in
predatory acts constituting sexually violent offenses if discharged or
(b) the committed person is suitable for placement in a transitional
release program. This standard for determining whether a final
hearing is required is satisfied if a reasonable person would find,
from the relevant and reliable evidence presented at the annual
review stage, that the committed person has more likely than not
generated a fact question on either of the issues enumerated in
section 229A.8(5)(e)(1)(a) or (b).
Id. at 318.1
The district court engaged in no weighing of the reliable evidence.
Because the Taft test was not applied by the district court, I would decline to
apply the test and would simply remand the case so the district court may apply
the correct standard when deciding whether or not to grant Shaffer a final
hearing. See Garren v. Iowa Dist. Ct., No. 07-0714, 2008 WL 4822578, at *2
(Iowa Nov. 7, 2008) (sustaining the writ but remanding the case to the district
1
I submit that evidence that may be in equipoise does not meet the statutory test of
producing a “preponderance” of the evidence.
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court to apply a new standard to determine whether a sexually violent predator
was entitled to a final hearing).