Amended July 25, 2017 In RE the Detention of Jeffrey Anderson, Jeffrey Anderson

IN THE SUPREME COURT OF IOWA
No. 15–2122

Filed May 12, 2017

Amended July 25, 2017

IN RE THE DETENTION OF JEFFREY ANDERSON,

JEFFREY ANDERSON,

Appellant.

Appeal from the Iowa District Court for Polk County, Arthur E.

Gamble, Judge.

The district court revoked the release-with-supervision status of a

person committed under the Sexually Violent Predators Act. The

committed person now argues the revocation of his release-with-

supervision status and his placement in the transitional release program

violates due process. AFFIRMED.

Michael H. Adams, Local Public Defender, and Amy Kepes,

Assistant Public Defender, for appellant.

Thomas J. Miller, Attorney General, and Gretchen Kraemer,

Assistant Attorney General, for appellee.
 2

ZAGER, Justice.

Jeffrey Anderson was civilly committed to the Civil Commitment

Unit for Sexual Offenders (CCUSO) under the Sexually Violent Predators

Act (SVPA). He was later granted release with supervision to the Fort Des

Moines Residential Facility. After he violated the terms of his release-

with-supervision plan, the district court revoked his release-with-

supervision status and ordered him placed at the transitional release

program housed at CCUSO. Anderson now challenges the district court

order placing him in the transitional release program at CCUSO as a

violation of his rights under the Due Process Clauses of the United States

Constitution and the Iowa Constitution. For the reasons stated below,

we hold that the district court order placing Anderson in the transitional

release program at CCUSO did not violate due process.

I. Background Facts and Proceedings.

On June 23, 2011, a jury determined that Jeffrey Anderson is a

sexually violent predator (SVP) under Iowa Code chapter 229A. See Iowa

Code § 229A.7(5) (2011). Between 1977 and 1994, Anderson sexually

assaulted or attempted to sexually assault six different girls and women.

In 1977, at the age of fourteen, Anderson attempted to sexually assault a

nine-year-old girl. He received probation. In March 1982, at the age of

nineteen, he was charged with assault with intent to commit sexual

abuse for choking and raping a college-aged woman. In April 1982,

Anderson was charged with sexual abuse in the second degree for the

attempted rape of a female acquaintance. He pled guilty to one count of

assault with intent to commit sexual abuse for the two 1982 charges and

was given a sentence of two years’ incarceration. During this

incarceration, he completed the Iowa Sex Offender Treatment Program

(SOTP). In 1983, at the age of twenty, Anderson raped a twenty-one-
 3

year-old physically handicapped woman. He pled guilty to sexual abuse

in the third degree and was sentenced to a ten-year term of

incarceration. He again completed the SOTP while incarcerated. In

1993, at the age of thirty, Anderson was charged with kidnapping and

sexual abuse in the second degree for sexually assaulting a twenty-one-

year-old female acquaintance. He was convicted of simple assault. In

1994, at the age of thirty-one, he was charged with burglary in the first

degree, assault with intent to commit sexual abuse, and sexual abuse in

the third degree after he went to the home of a coworker and raped her in

front of her son. He was found guilty of all three counts and sentenced

to thirty-five years’ incarceration. Anderson participated in SOTP twice

during this incarceration, but never completed the program. He was

removed from the program on his first attempt because his account of

the sexual assaults differed from the official records. He was removed

from the program on his second attempt for refusal to participate.

Adjudicating Anderson as an SVP means the jury determined,

beyond a reasonable doubt, that Anderson suffered from a mental

abnormality which made him likely to engage in predatory acts

constituting sexually violent offenses. See id. § 229A.2(11) (now .2A(12)).

Anderson was committed to the custody of the director of the Iowa

Department of Human Services (DHS) for control, care, and treatment

until such time as his mental abnormality has so changed that he is safe

to be placed in a transitional release program or discharged. Id.

§ 229A.7(5)(b). While he was under the control, care, and treatment of

DHS, he was placed at its secure facility in CCUSO. During treatment,

Anderson admitted to numerous other sexual assaults. Anderson has

been diagnosed with personality disorder not otherwise specified (non-

consent) and antisocial personality disorder.
 4

After an annual review on November 13, 2014, Anderson

submitted a report from Dr. Richard Wollert. In the report, Dr. Wollert

opined that Anderson was no longer likely to engage in sexually

predatory acts constituting sexually violent offenses if he were given the

chance to be released from CCUSO. Dr. Wollert further opined that

Anderson was a suitable candidate for the transitional release program

at CCUSO. Based upon this report, Anderson requested a final hearing.

After considering all of the evidence presented, the district court set the

matter for a final hearing.

Trial on whether Anderson’s commitment should continue

commenced on February 11, 2015. The jury returned a verdict two days

later with the following answers:

Question No. 1: Did the State prove by evidence
beyond a reasonable doubt that Respondent’s mental
abnormality remains such that he is likely to engage in
predatory acts that constitute sexually violent offenses if
discharged? ANSWER: . . . No.

Question No. 2: Did the State prove by evidence
beyond a reasonable doubt that Respondent is not suitable
for placement in a transitional release program? ANSWER:
. . . Yes.

Because the parties considered the jury’s answers to be inconsistent, the
district court ordered further briefing. The district court set a hearing for

March 12 to determine the meaning of the verdicts and to answer the

constitutional issues raised. The district court conducted the hearing on

March 20 and issued its order on March 27. The district court held that

it was in the best interest of the community for Anderson to be released

with supervision before being discharged from CCUSO. The district

court further found that the State proved release with supervision would

help Anderson safely reenter society. The district court noted, “[T]he

Respondent now agrees that he should be released with supervision
 5

under a release plan coordinated by DHS and the Fifth Judicial District

Department of Correctional Services.” The district court also ordered,

Consistent with due process and the opinion of the Supreme
Court in Matlock[1] and pursuant to Iowa Code Section
229A.9A(2), within sixty (60) days of March 20, 2015, DHS
shall prepare a release plan addressing Respondent’s needs
for counseling, medication, community support services,
residential services, vocational services, alcohol and other
drug abuse treatment, sex offender treatment, or any other
treatment or supervision necessary.

DHS, in coordination with the Iowa Department of Correctional

Services (DCS), filed the release-with-supervision plan on May 19, and

the district court held a hearing on the plan on May 22. Without

objection by Anderson, the district court approved the release-with-

supervision plan as written and ordered the sheriff to transport Anderson

to the Fort Des Moines Residential Facility. Anderson was placed under

the supervision of the Fifth Judicial District DCS. Pursuant to

Anderson’s release plan, he was not allowed to have sexual contact with

another person without permission while he was living at the Fort Des

Moines facility. The terms of his release-with-supervision plan required

him to disclose “all pertinent and relevant information” about any

potential romantic relationship to DCS for approval. Additionally, the

Fort Des Moines facility has its own rules and regulations that Anderson

was required to comply with. One such rule prohibits residents of the

facility from engaging in sexual contact with another resident.

On October 16, another resident of the Fort Des Moines facility,

T.B., reported that Anderson sexually assaulted him while Anderson was

driving him to work. T.B. reported that Anderson asked him if he needed

a ride and he accepted. While they were driving, the two made small talk

1In re Det. of Matlock, 860 N.W.2d 898, 901 (Iowa 2015).
 6

and Anderson told T.B. that he is homosexual. Anderson then pulled

into a parking lot. T.B. asked Anderson why they were stopping, and

Anderson did not respond. Anderson told T.B. he was pretty and then

started to undo his pants. T.B. tried to push Anderson off, but Anderson

pinned him down and began to perform oral sex. T.B. reported that he

was initially too scared to move but was eventually able to push

Anderson off of him. T.B. left the car and jogged across the street to get

away from Anderson. After T.B. left, he approached an off-duty police

officer who was working as a security guard at the DART Central Station.

T.B. called his counselor at the Fort Des Moines facility to report the

incident. T.B. then made a police report with the officer.

When confronted, Anderson claimed the sexual activity was

consensual and that T.B. initiated the contact. However, based on the

police report filed regarding the incident and incident reports obtained

from the Fort Des Moines facility, the State filed a motion for ex parte

revocation alleging that Anderson had violated the terms of his release-

with-supervision plan.

T.B. later recanted and said the sexual contact was consensual.

On October 19, the State filed an amended motion to include the

information that T.B. had recanted his claim that the sexual contact was

nonconsensual. However, the conduct was still in violation of Anderson’s

release-with-supervision plan and the rules and regulations of the Fort

Des Moines facility. On October 22, the district court filed an order

commanding the sheriff to transport Anderson to the secure custody of

CCUSO pending a hearing.

On November 16, the district court held a hearing on the motion to

revoke Anderson’s release-with-supervision status. Anderson stipulated

that he had sex with an eighteen-year-old resident of the Fort Des
 7

Moines facility without permission, which was against the rules of the

facility and in violation of his release-with-supervision plan.

Anderson testified as to his version of the incident. Anderson

testified that the sexual encounter occurred while he was on his way to

work. Anderson picked T.B. up away from the facility. While driving,

Anderson and T.B. started discussing their age difference. At the time,

Anderson was fifty-two and T.B. was eighteen. Anderson testified that

T.B. began “hitting on” him, and he was surprised because of their age

difference. He further testified that T.B. was the initiator of the sexual

contact. According to Anderson, T.B. suggested Anderson pull the car

over. According to Anderson, he then entered the backseat and engaged

in sexual activity with T.B. at T.B.’s request. The district court found

Anderson’s version of the encounter not credible. It likewise found

Dr. Wollert’s testimony less credible because Dr. Wollert believed

Anderson’s version of events.

Dr. Tony Tatman also testified at the hearing. Dr. Tatman testified

about the sexual contact and how it related to Anderson’s cycle of

offending. Dr. Tatman testified that Anderson’s placement of all the

responsibility of the sexual encounter on the eighteen-year-old T.B. was

consistent with Anderson’s manipulative behavior. Dr. Tatman also

testified that the encounter, which took place outside the facility,

demonstrated advance planning. Dr. Tatman further testified that

Anderson’s choice in a sexual partner was consistent with his offending

cycle. Dr. Tatman opined that the sexual encounter seemed at odds with

a mutually consensual act, even though T.B. later recanted. Dr. Tatman

testified that following the sexual encounter, T.B. immediately left the

vehicle, obtained access to a phone, and reported the assault both to his

facility counselor and directly to the police.
 8

On November 18, the district court issued its order revoking

Anderson’s release-with-supervision status. It found that Anderson

violated a provision of his release-with-supervision plan by having sex

without prior approval from his counselor at the Fort Des Moines facility

and by having sex with an inappropriate partner. The district court

made credibility findings and found credible Dr. Tatman’s testimony that

Anderson was at a higher risk after the violation than at the time of the

jury proceeding. However, the district court also noted that Dr. Tatman

could not say whether Anderson was more likely than not to reoffend.

The district court revoked Anderson’s release-with-supervision status

and ordered him to be placed in the transitional release program, which

is located at CCUSO. Anderson timely appealed the district court order.

We retained the appeal.

II. Standard of Review.

Our review of constitutional claims is de novo. In re Det. of

Matlock, 860 N.W.2d 898, 901 (Iowa 2015). To the extent Anderson’s

claims require us to interpret provisions of our SVPA, we review the

district court’s construction and interpretation of the statute for

correction of errors at law. In re Det. of Cubbage, 671 N.W.2d 442, 444

(Iowa 2003).

III. Analysis.

A. Error Preservation. The State argues Anderson did not

preserve error on his claim that revoking his release-with-supervision

status and placing him in the transitional release program at CCUSO

violates due process. The State claims that error was not preserved

because the district court did not rule on the constitutional issue from

the bench, and Anderson did not provide authority for the argument

beyond citation to the constitutions. Anderson responds that error was
 9

preserved because the argument was raised to the district court during

the hearing, and the district court’s ruling overruled the argument even

though it did not expressly address the constitutional claim.

Our general rule of error preservation is that we will not decide an

issue presented before us on appeal that was not presented to the

district court. See, e.g., City of Postville v. Upper Explorerland Reg’l

Planning Comm’n, 834 N.W.2d 1, 8 (Iowa 2013). In order for error to be

preserved, the issue must be both raised and decided by the district

court. Bank of Am., N.A. v. Schulte, 843 N.W.2d 876, 883 (Iowa 2014).

The reason for this principle relates to the essential
symmetry required of our legal system. It is not a sensible
exercise of appellate review to analyze facts of an issue
“without the benefit of a full record or lower court
determination.”

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (quoting Yee v. City

of Escondido, 503 U.S. 519, 538, 112 S. Ct. 1522, 1534 (1992)). The

underlying requirement of error preservation is to give opposing counsel

notice of the argument and opportunity to be heard on the issue. Lee v.

State, 815 N.W.2d 731, 739 (Iowa 2012). However, our error

preservation rules were not designed to be hypertechnical. Griffin Pipe
Prods. Co. v. Bd. of Review, 789 N.W.2d 769, 772 (Iowa 2010).

Similarly, it is a fundamental principle of our appellate review that

“we assume the district court rejected each defense to a claim on its

merits, even though the district court did not address each defense in its

ruling.” Meier, 641 N.W.2d at 539. When we review a district court’s

ruling,

[w]e first examine the basis upon which the trial court
rendered its decision, affirming on that ground if possible. If
we disagree with the basis for the court’s ruling, we may still
affirm if there is an alternative ground, raised in the district
 10
court and urged on appeal, that can support the court’s
decision.
Hawkeye Food Distrib., Inc. v. Iowa Educators Corp., 812 N.W.2d 600,

609 (Iowa 2012) (quoting Fencl v. City of Harpers Ferry, 620 N.W.2d 808,

811–12 (Iowa 2000) (citation omitted)). We have applied this rule to both

affirm and reverse a district court’s ruling. Id. at 609–10.

During the hearing to determine whether revocation of Anderson’s

release-with-supervision status was appropriate, Anderson’s attorney

argued that not allowing him to continue with release with supervision
“would be a violation of Mr. Anderson’s liberty interest and due process

under both the U.S. Constitution, the Fourteenth Amendment, and the

Iowa Constitution, Article 1, Section 9.” While counsel conceded that

release with supervision was appropriate, she noted that the district

court’s ruling on Anderson’s status needed to comport with the

Constitution. Counsel further argued the State had not demonstrated

that Anderson was more likely than not to reoffend and that this was the

standard necessary to order him back to CCUSO.

The district court’s order revoking Anderson’s release-with-

supervision status did not address any of the constitutional arguments.

Anderson never filed a motion requesting the district court rule on the

constitutional issues. However, the issue of constitutionality was raised

throughout the proceedings. Opposing counsel had sufficient notice that

the constitutionality of Anderson’s revocation of release-with-supervision

status would be an issue on appeal. Error was preserved.

B. Substantive Due Process. Anderson argues that the district

court’s decision to revoke his release-with-supervision status and place

him in the transitional release program at CCUSO violates his right to

due process under both the United States Constitution and the Iowa

Constitution. He argues that the revocation of his release-with-
 11

supervision status and placement in the transitional release program

violates substantive due process for two reasons: (1) there was no finding

that he was more likely to sexually reoffend, and (2) the conditions

imposed do not balance the interest of the community against his liberty

interest. The State responds that the statute does not require the district

court to find Anderson is more likely to reoffend in order to transfer him

to the transitional release program after he had been released with

supervision. The State further argues that substantive due process has

been satisfied by the statute because there is a reasonable relationship

between the State’s objective of protecting society and the district court’s

discretion to determine where an individual who has violated the terms of

release with supervision should be placed pending the next annual

review.

The Due Process Clause of the United States Constitution provides

that a state may not “deprive any person of life, liberty, or property

without due process of law.” U.S. Const. amend. XIV, § 1. Similarly, the

Iowa Constitution provides that “no person shall be deprived of life,

liberty, or property, without due process of law.” Iowa Const. art. I, § 9.

Traditionally, we have “considered the federal and state due

process provisions to be equal in scope, import, and purpose.” Matlock,

860 N.W.2d at 903 (quoting In re Det. of Garren, 620 N.W.2d 275, 284

(Iowa 2000)). We reserve the right to construe our state constitution

differently from the United States Constitution. Id. This is true even

when the two provisions “contain nearly identical language and appear to

have the same scope, import, and purpose.” Id.; see also State v.

Kooima, 833 N.W.2d 202, 206 (Iowa 2013). When a party does not

suggest a framework for analyzing the Iowa Constitution that is different

from the framework utilized under the United States Constitution, we
 12

apply the general federal framework. Matlock, 860 N.W.2d at 903.

However, we reserve the right to apply the federal framework in a

different manner. Id.

When a substantive due process violation is alleged, we follow a

two-step analysis. King v. State, 818 N.W.2d 1, 31 (Iowa 2012). The first

step is to determine the nature of the right involved and the second is to

determine the appropriate level of scrutiny to apply. Id. If the right is a

fundamental right, we apply strict scrutiny. Id. For other rights, we

apply a rational basis test. Id. The core of the Due Process Clause is an

individual’s right to be free from bodily restraint caused by arbitrary

actions by the government. Matlock, 860 N.W.2d at 903; see Foucha v.

Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 1785, (1992). This liberty

interest is not absolute. Garren, 620 N.W.2d at 284.

We have previously addressed a number of substantive due

process questions in the context of our SVPA. In Garren, a committed

person challenged the SVPA, arguing that the committal process violated

his substantive due process rights because it did not allow the court to

consider a less restrictive alternative to placing him at CCUSO. Id. at

284–85. We addressed the United States Supreme Court’s decision in

Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997). Id. at 279.

In Hendricks, the Court held that Kansas’s civil commitment statutes

were civil in nature and therefore did not trigger the same constitutional

protections afforded criminal defendants. 521 U.S. at 361, 117 S. Ct. at

2082. The Court also held that a finding of dangerousness, coupled with

proof of an additional factor such as mental illness or abnormality, was

sufficient for the Kansas SVPA to withstand a substantive due process

challenge. Id. at 361–62, 117 S. Ct. at 2082.
 13

As a threshold matter, we held that our SVPA, which is similar to

the Kansas statute, is civil in nature. Garren, 620 N.W.2d at 283. We

also noted that our SVPA is similar in nature and scope to the Kansas

SVPA and other civil commitment statues that have survived substantive

due process challenges. Id. at 284–85. We found that Garren’s least

restrictive alternative argument also did not survive a substantive due

process challenge. Id. at 285. Even if a right exists to the least

restrictive alternative placement, the right is not a fundamental right. Id.

Therefore, the most substantive due process required for Garren’s

challenge to the SVPA was a “reasonable fit between the governmental

purpose and the means chosen to advance that purpose.” Id. (quoting In

re B.B., 516 N.W.2d 874, 879 (Iowa 1994)).

In Cubbage, the petitioner argued he had a substantive due

process right to be competent during the course of his SVPA proceedings.

671 N.W.2d at 445. We were first required to determine whether

Cubbage’s right to competency was a fundamental right, triggering a

strict scrutiny analysis, or whether a rational basis analysis was

appropriate. Id. at 446–48. Again, the fact that our SVPA is civil in

nature was the key. Id. at 447–48. We noted that both the Supreme

Court and our own precedents have held that a “criminal trial of an

incompetent defendant violates due process.” Id. at 447 (quoting State v.

Rieflin, 558 N.W.2d 149, 152 (Iowa 1996), overruled in part on other

grounds by State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010)). However,

Cubbage’s challenge arose in a civil context, and the Supreme Court has

not yet recognized the same fundamental right to competency for civil

commitment proceedings. Id. at 447. We agreed and held that Cubbage

did not have a fundamental right to competency during his SVPA

proceedings. Id. Because Cubbage’s right to competency was not
 14

fundamental, we applied a rational basis test to determine whether

substantive due process was violated. Id. at 448. We weighed whether

there was “a reasonable fit between the governmental purpose and the

means chosen to advance that purpose” and found that there was. Id. at

448 (quoting Garren, 620 N.W.2d at 285).

Although we applied a rational basis test in both Garren and

Cubbage, we applied a more stringent test to determine what process

was due in Matlock, 860 N.W.2d at 904, 907–08. Matlock challenged the

district court’s order imposing release with supervision. Id. at 903. The

district court found that the State proved beyond a reasonable doubt

that he suffered from a mental abnormality, but that the State failed to

prove beyond a reasonable doubt that he was likely to engage in future

sexually violent offenses if discharged. Id. at 904. Relying on Hendricks,

we noted that we would weigh Matlock’s liberty interest against the

State’s reason for restraining his liberty interest in order to determine

whether a substantive right was violated. Id. at 904.

We held that, under the SVPA, “if a person still suffers from a

mental abnormality, but the State cannot prove he or she is likely to

engage in acts of sexual violence upon release, the courts must release

that person.” Id. at 905. If the State is unable to demonstrate both, then

continued confinement violates the committed person’s due process

rights. Id. However, if the court finds that the State proved release with

supervision would help the committed person safely reenter society, the

court may impose certain conditions. Id.

Matlock also challenged the conditions of his release under due

process. Id. We noted that conditions of release plans implicate a liberty

interest for the committed person. Id. Because of that liberty interest,
 15
[d]ue process requires the court to properly balance the
interest of the community against the liberty interest of a
person suffering from a mental abnormality who is not likely
to engage in acts of sexual violence upon release. To do this,
the district court must strike the proper balance between the
treatment needs of a person released with supervision and
the protection of the public.

Id. at 907 (citation omitted). We remanded the case so the court could
determine whether Matlock’s release-with-supervision plan properly

balanced his interests against those of the community. Id. at 908.

Anderson’s case presents us with an issue of first impression, as

we have never engaged in a substantive due process analysis of the

statute granting the court discretion in determining the appropriate

placement after a committed person violates the terms of release with or

without supervision. Here, the court’s placement options have the

potential to restrict Anderson’s liberty, which is a fundamental right.

Because of the liberty interest implicated in Anderson’s revocation

hearing, a heightened standard of review is appropriate. King, 818

N.W.2d at 31 (noting that strict scrutiny applies if a right is

fundamental). As in Matlock, the appropriate test is to weigh the

individual’s liberty interest against the State’s reason for restraining the

individual’s liberty. 860 N.W.2d at 904.

1. Iowa statute. Iowa Code section 229A.8 is the statute that sets

forth the procedures for determining whether the individual is entitled to

a final hearing. Iowa Code § 229A.8 (2016). This Code section provides

that there is a rebuttable presumption that commitment should continue

for individuals civilly committed under the SVPA. Id. § 229A.8(1). At the

annual review hearing, the committed person has the burden to

demonstrate by a preponderance of the evidence that “relevant and

reliable evidence” exists to rebut this presumption. Id. § 229A.8(5)(e)(1).

If the committed person is able to provide this relevant and reliable
 16

evidence, the district court shall hold a final hearing. Id.

§ 229A.8(5)(e)(2). At the final hearing, the State has the burden to

demonstrate beyond a reasonable doubt either of the following: (1) “[t]he

committed person’s mental abnormality remains such that the person is

likely to engage in predatory acts that constitute sexually violent offenses

if discharged,” or (2) “[t]he committed person is not suitable for

placement in a transitional release program pursuant to section

229A.8A.” Id. § 229A.8(6)(d). In Matlock, we noted that the State must

demonstrate that a person committed under the SVPA still suffers a

mental abnormality and is likely to engage in sexually violent acts if

released in order to justify continued confinement. 860 N.W.2d at 905.

However, we did not decide in Matlock whether continued

confinement was still justified if the jury decided, as it did here, that the

State had met its burden of proof that Anderson was not suitable for

placement in a conditional release program. Nor do we need to decide

the issue in this case. After several hearings conducted by the district

court regarding how to interpret the jury’s answers, the State and

Anderson stipulated that he would be released under the terms of

supervision accepted by the district court.

It is important to understand the interplay between the multiple

statutory provisions that apply to Anderson’s situation. As a result of

the final hearing, there were a range of placement options that

potentially applied to Anderson. First, since the State proved beyond a

reasonable doubt that Anderson was not suitable for conditional release,

he arguably could have been returned to the appropriate secure facility

at CCUSO. Iowa Code § 229A.8. Because of some confusion regarding

the effect of the jury’s verdicts, this was not considered. As will be

discussed later in greater detail, the State and the committed individual
 17

may stipulate to a transfer to a transitional release program. See id.

§ 229A.8(7). That is what occurred here.

“Transitional release” is defined as a “conditional release from a

secure facility operated by the department of human services with the

conditions of such release set by the court or the department of human

services.” Id. § 229A.2(13) (emphasis added). This differs from

“discharge,” which is defined as “an unconditional discharge from the

sexually violent predator program.” Id. § 229A.2(4). Therefore, the

transitional release program located at CCUSO was a second placement

option for the district court, even though it was not recommended by the

State or the jury, or stipulated to by Anderson. It would have been,

however, a conditional release from a secure facility.

These were not the only placement options available to the district

court under the facts here. The statute provides that in any proceeding

under section 229A.8, the court may order the committed person

released with or without supervision. See id. § 229A.9A. Both of these

placement options are likewise conditional release from a secure facility.

Id. Release with supervision was the placement option stipulated to by

the State and Anderson, which constituted a conditional release from a

secured facility.

Anderson was released from CCUSO under the terms and

conditions set forth in a release plan prepared by DHS and the Fifth

Judicial District DCS, and approved by the district court. Once an SVP

is released with supervision, the provisions of section 229A.9B provide

the procedure for determining violations of the terms of release. The

procedures provided are quite different from the procedures required for

a committed person’s annual review and final hearing. Compare id.

§ 229A.8, with id. § 229A.9B. Once a final hearing is held under section
 18

229A.8, and the district court determines that the individual release with

or without supervision plan is appropriate, the court thereafter retains

jurisdiction over the committed person until he or she is discharged from

the program. Id. § 229A.9A(8).

During the time a committed person is released with supervision

but not yet discharged, he or she may violate the terms of supervision.

The Code provides detailed procedures to be utilized in the case of an

alleged violation. Id. § 229A.9B. Notably, section 229A.9B makes no

mention of a requirement to demonstrate either mental abnormality or

likelihood of engaging in future sexually violent offenses. Id. If the

agency with jurisdiction determines a committed person has violated the

terms of a release plan, the agency may request that the district court

enter an emergency ex parte order directing law enforcement to return

the committed person to a secure facility pending a hearing. Id.

§ 229A.9B(1). Once the committed person is returned to a secure

facility, the district court must set a date for a hearing to determine

whether a violation of the release plan occurred. Id. § 229A.9B(3). At the

hearing, the attorney general has the burden to demonstrate by a

preponderance of the evidence that the committed person violated the

terms of the release plan. Id. § 229A.9B(4). If the district court

determines a violation has occurred, it then has the discretion to return

the committed person to release with or without supervision, place the

committed person in a transitional release program, or confine the

committed person to a secure facility. Id. § 229A.9B(5).

These placement options have varying degrees of restrictions, with

the final option available to the court being secure confinement. Release

with or without supervision is the least restrictive option available to the

court. See id. § 229A.9A. Although the transitional release program is
 19

housed at the same facility as CCUSO, it is not the same as confinement

in a secure facility. Compare id. § 229A.2(13), with id. § 229A.2(2).

“Transitional release” is defined by the statute as “a conditional release

from a secure facility operated by the department of human services with

the conditions of such release set by the court or the department of

human services.” Id. § 229A.2(13). In contrast, “secure facility” is

defined as “a state facility that is designed to confine but not necessarily

to treat a sexually violent predator.” Id. § 229A.2(2). This distinction is

acknowledged in other places in the SVPA. Section 229A.7 notes that

SVPs are housed at appropriate secure facilities “[a]t all times prior to

placement in a transitional release program or release with or without

supervision.” Id. § 229A.7(7).

2. Other state statutes. A number of states have statutes similar

to Iowa Code section 229A.9B regarding revocation that have not faced a

due process challenge in court.

In Kansas, the state carries the burden of demonstrating by

probable cause that a person in a transitional release program violated

the terms and conditions of the release. Kan. Stat. Ann. § 59-29a08(f),

(g) (West, Westlaw current through 2017 Reg. Sess.). If the state meets

this burden, the court has the discretion to return the individual to

secure confinement or back to the transitional release program with or

without additional conditions. Id. § 59-29a08(g).

In Missouri, a committed person must be placed on conditional

release if the court finds the person’s “mental abnormality has so

changed that the person is not likely to commit acts of sexual violence if

released.” Mo. Ann. Stat. § 632.505(1) (West, Westlaw current with

emergency legis. through Mar. 30, 2017). However, if the court finds by

a preponderance of the evidence that the individual has violated the
 20

terms of conditional release, the court has a number of options. Id.

§ 632.505(7)(7). The court may revoke the conditional release and return

the committed person to a secure facility. Id. The court may also modify

or increase the conditions of release. Id. If an individual’s conditional

release is revoked, he or she may not petition the court for subsequent

conditional release for a minimum of six months. Id. § 632.505(7)(8).

In Virginia, if a petition is filed alleging an individual on conditional

release has violated the terms of release, the court that originally

conditionally released the individual must hold a hearing to determine

the individual’s status. Va. Code Ann. § 37.2-913(C) (West, Westlaw

current through 2016 Reg. Sess.). “If upon hearing evidence,” the court

determines that the individual violated the terms of release, the court

has the option to return him or her to secure custody. Id. § 37.2-913(D).

The secured individual then must wait at least six months before

petitioning for re-release. Id.

In Wisconsin, the state bears the burden of demonstrating by clear

and convincing evidence that either a term of conditional release has

been violated or the individual poses a danger to the community. Wis.

Stat. Ann. § 980.08(8) (West, Westlaw current through 2017 Act 6). If

the state meets its burden, the court has the discretion to revoke the

conditional release. Id. While the court has the discretion to consider

alternatives to revocation, the court may choose to place the individual in

institutional confinement for the violation. Id.

In Washington, the state bears the burden of proving by a

preponderance of the evidence that an individual on conditional release

has either violated the terms of the conditional release order or that the

individual is in need of additional treatment. Wash. Rev. Code Ann.

§ 71.09.098(5)(c) (West, Westlaw current through 2016 Reg. & Spec.
 21

Sess.). If the state meets this burden, the court weighs five factors to

determine whether to revoke the conditional release or to modify the

terms. Id. § 71.09.098(6)(a), (7), (8). The court has the discretion to

order an individual back to total confinement. Id. § 71.09.098(8).

3. Approach of other courts. Other courts have considered the

difference in standards required for continued secure confinement and

the standards required to revoke a release status after a violation has

been found.

In Arizona, a jury found John Sanchez to be a sexually violent

person as defined by the Arizona Sexually Violent Persons Act (SVPA),

and he was committed for placement at a treatment center. In re Pima

Cty. Mental Health Cause No. A20020026, 352 P.3d 921, 923 (Ariz. Ct.

App. 2015). Sanchez later petitioned for release to a less restrictive

environment. Id. The court found that the state was unable to meet its

statutory burden of demonstrating by proof beyond a reasonable doubt

that Sanchez’s “disorder has not changed and that he is likely to engage

in acts of sexual violence if discharged.” Id. The court ordered

conditional release. Id. Sanchez later admitted to touching a young girl

on her back, and the district court revoked his conditional release status.

Id. After a hearing, the district court revoked Sanchez’s conditional

release and committed him to secure confinement. Id. Sanchez

appealed, arguing that the revocation of his conditional release and

return to confinement was improper. Id. at 923–24.

Similar to the Iowa SVPA, Arizona requires different burdens of

proof and different showings for a hearing following an annual review

and for a hearing to determine whether release status should be revoked.

See id. at 924; see also Ariz. Rev. Stat. Ann. §§ 36–3709, 36–3713

(Westlaw current through May 3, 2017). When the district court holds a
 22

hearing regarding the change of status after an annual review, the state

is required to prove beyond a reasonable doubt that an SVP’s mental

disorder has not changed or that he or she remains a danger. Pima Cty.,

352 P.3d at 924; see also Ariz. Rev. Stat. Ann. § 36–3709. However, in

the revocation context, the state need only prove by a preponderance of

the evidence that the conditionally released person should be committed

to “total confinement.” Pima Cty., 352 P.3d at 924; see also Ariz. Rev.

Stat. Ann. § 36–3713(C). The State can do this by demonstrating that

the terms of release were violated, additional treatment is necessary, or

the community is no longer safe with the person in conditional release.

Ariz. Rev. Stat. Ann. § 36–3713(C).

The court noted

when the issue is revocation of a conditional release, the
burden of proof is lower, and the liberty interests Sanchez
cites are not implicated because the state has already met
the greater burden in establishing his continuing status as
an SVP.

Pima Cty., 352 P.3d at 924. The court ultimately found that Sanchez did

not meet his burden of demonstrating that the lower standard of

evidence in the revocation statute was unconstitutional. Id.
In Washington, Wrathall was civilly committed as an SVP and

placed in total confinement at a facility on McNeil Island. In re Det. of

Wrathall, 232 P.3d 569, 570 (Wash. Ct. App. 2010). The court later

placed Wrathall into a less restrictive alternative (LRA) at the secure

treatment facility on the island. Id. Following his noncompliance with

treatment and behavioral requirements at the facility, Wrathall’s LRA

was revoked. Id. The next year, he was again granted an LRA and

returned to the treatment facility. Id. After a number of years at the

facility, the director was concerned that Wrathall was not making
 23

treatment progress, so the state moved to modify the conditional release

order to substitute a different sex offender treatment provider. Id. The

district court granted the order and Wrathall began seeing a new

treatment provider at the facility. Id. During his treatment sessions with

the new provider, Wrathall informed her that he disliked being told what

to do and if he were unconditionally released to the community, he would

“maybe” molest a minor because the rules of his release would tell him

not to. Id. He also told his treatment provider that the way he would

control his mood would be to consume beer, hard alcohol, or drugs, but

if those substances did not work, he would “look for a kid.” Id. His

treatment provider reported that Wrathall’s behavior indicated he was

not willing to participate in treatment and that he was not ready to

transition into the community. Id. She recommended that his LRA

status be removed and that the district court transfer him back to the

secure confinement facility. Id. The state filed a petition to revoke

Wrathall’s LRA, which the district court granted. Id. at 571. Wrathall

appealed and argued that the revocation of his conditional release

violated his due process rights because the court did not make a finding

that his violations were willful before sending him back to secure

confinement. Id.

Like Iowa and Arizona, Washington’s revocation statute requires a

different standard of proof when the district court makes a determination

of whether a violation of conditional release occurred. Wash. Rev. Code

Ann. § 71.09.098(5)(c) (West, Westlaw current through 2016 Reg. & First

Spec. Sess.). The state need only demonstrate by a preponderance of the

evidence that the committed person violated the terms of conditional

release or that the committed person needs additional care, monitoring,

supervision, or treatment. Id. The state alleged both prongs in its
 24

petition to revoke Wrathall’s LRA. Wrathall, 232 P.3d at 571. If the court

determines the state has met its burden, it may then modify the terms of

the conditional release or send the committed person back to the total

confinement facility. Wash. Rev. Code Ann. § 71.09.098(7), (8).

The Washington court held that the due process clause does not

require the district court to find that a violation is willful before sending a

committed person to total confinement under the Washington statute.

Wrathall, 232 P.3d at 572. The court held

the State’s interest in “protecting society, particularly
minors, from a person convicted of raping a child” was
rationally served by imposing stringent conditions and
greatly outweighed the offender’s interest in being punished
only for willful conduct, especially given that the offender’s
rights are already diminished because of his conviction for a
sex offense.

Id. (quoting State v. McCormick, 213 P.3d 32, 38 (Wash. 2009) (en banc)).

Although the McCormick case dealt with the revocation of a suspended

sentence under the Washington special sex offender sentencing

alternative, the court of appeals extended the rationale to the sexually
violent predator statutes. Id. The court held that due process did not

require the court to find the violation was willful under the statute when

the violation itself created a threat to society. Id.

However, some courts do require the state to demonstrate the

likelihood of reoffending in order to recommit an individual who has

violated the terms of conditional release or conditional discharge. See,

e.g., In re Civil Commitment of E.D., 874 A.2d 1075, 1076–77 (N.J. 2005).

The New Jersey Supreme Court held that due process requires the state

to demonstrate by clear and convincing evidence that an individual

continues to be an SVP and that they are likely to reoffend if not
 25

recommitted. Id. at 1083. This is the same standard required to civilly

commit an individual as a sex offender in the state. Id.

The Supreme Judicial Court of Massachusetts found that the

legislature intended the district courts to have the power to recommit

individuals for breaching the terms of conditional release. See

Commonwealth v. Travis, 361 N.E.2d 394, 399 (Mass. 1977). However,

the court also held that the court would need to find that the person was

sexually dangerous to order recommitment. Id. (“[T]he recommitment

intended by the Legislature appears to be recommitment under the terms

of the original commitment, which would necessarily entail a vacation of

the prior finding that the individual was no longer sexually dangerous

. . . .”).

C. Substantive Due Process as Applied to Anderson. After the

district court determined Anderson violated the terms of his release plan,

the district court ordered his confinement at CCUSO’s transitional

release program. Anderson argues that confining him to CCUSO’s

transitional release program violated his substantive due process rights

because it is not narrowly tailored to his treatment needs and does not

bear a substantial relationship to either his liberty interests or the public

safety interests of the community. He also argues that it was a general

or blanket restriction, and the district court did not properly balance the

community interests of having him confined with his liberty interests.

When we determine whether the State has violated substantive due

process, we weigh the individual’s liberty interest against the State’s

reason for the restraint on that individual’s liberty. Matlock, 860 N.W.2d

at 904. In Matlock, we noted that

[d]ue process requires the court to properly balance the
interest of the community against the liberty interest of a
person suffering from a mental abnormality who is not likely
 26
to engage in acts of sexual violence upon release. To do this,
the district court must strike the proper balance between the
treatment needs of a person released with supervision and
the protection of the public.

Id. at 907 (citation omitted).

In the district court’s order revoking Anderson’s release with

supervision plan, the district court found, and Anderson acknowledged,
that he had violated the terms of his release plan by having sex without

prior approval and by having sex with an inappropriate partner. The

district court further found Anderson’s testimony that the eighteen-year-

old sexual partner was the instigator not credible. It found credible the

testimony of Dr. Tatman that Anderson was manipulative, that his choice

in a partner was of an underlying sexual nature, and that his behavior

was part of a cycle of his past sexual offenses. The district court also

gave credit to Dr. Tatman’s testimony that Anderson was at a higher risk

at the time of the violation and hearing than he was at the time of the

jury trial. The district court also noted that confinement in secure

custody was not appropriate because Dr. Tatman was unable to say

whether Anderson was more likely than not to reoffend. Ultimately, the

district court determined the transitional release program was most

appropriate because Anderson needed the skills and treatment available

to him in the program.

While the district court did not expressly balance the community

interests with Anderson’s liberty interest, it did engage in a balancing

analysis. The district court weighed Anderson’s liberty interest when it

considered whether secure custody or the transitional release program

was appropriate based on his prior behavior and current violation. The

district court had three options of placement before it—return to release

with supervision, place in the transitional release program, or order to
 27

secure confinement—and it chose to send Anderson to the transitional

release program based on the obvious need for additional treatment and

the supervision available at the facility. The district court had the option

of returning Anderson to the release-with-supervision status at the Fort

Des Moines facility instead of the transitional release program. However,

because of his choice of an inappropriate partner, the sexual nature of

the violation, Anderson’s lack of credibility, and the credible testimony of

Dr. Tatman, the district court determined the programming available at

the transitional release program was better suited to Anderson’s needs

and the protection of the public.

In its order, the district court expressly considered Anderson’s

treatment needs. It noted that the jury’s verdict resulted in Anderson

“skipping over the transitional release program, and intermediate level of

custody between secure confinement and community placement.” The

district court found that Anderson needs the treatment available at the

transitional release program that is not available on release with

supervision at the Fort Des Moines facility. At least part of the reason

the district court ordered Anderson to the transitional release program

was because it believed Anderson needed treatment focused on positive

relationship skills, which directly relates to the conduct that Anderson

engaged in when violating the terms of his release with supervision.

The district court also considered whether modifying Anderson’s

release-with-supervision plan or sending him back to secure custody

were appropriate before concluding that the transitional release program

was most suited to his needs. The district court noted that two of the

therapists who offered opinions believed Anderson should remain in

release with supervision. However, the district court found more

persuasive the concern that his violation was sexual in nature and
 28

indicated the need for building positive relationship skills. The district

court also noted that secure confinement was not appropriate in

Anderson’s case because none of the therapists opined that he was more

likely than not to reoffend.

Likewise, the court considered Anderson’s liberty interest in its

order. There is nothing in the statute that requires the State, as part of

the revocation of the release with supervision status, to again prove that

a person is more likely to sexually reoffend before they can be subject to

greater supervision or placed in the transitional release program. See

Iowa Code § 229A.9B. The district court order transferring Anderson to

the transitional release program expressly provides that his progress

shall be reviewed one year following the order and be made in accordance

with the provisions of Iowa Code section 229A.8. Anderson has retained

all the due process rights afforded all civilly committed persons to annual

evaluations and annual reviews. See id. § 229A.8.

The district court also considered the risk to the public of

returning Anderson to release with supervision at the Fort Des Moines

facility. Anderson engaged in sexual conduct without permission. When

a committed person violates the terms of a release plan, it can result in a

heightened danger to the public. This is why when there is an allegation

that a violation has occurred, the agency with jurisdiction has the

immediate ability to request an emergency ex parte order transferring the

committed person to a secure facility. Id. § 229A.9B(1). The committed

individual is then brought before the district court to determine whether

the violation occurred. Id. § 229A.9B(3)–(4). If the district court

determines that a violation has occurred, then the district court has the

discretion to determine what level of release, transitional programming,

or commitment is necessary based on the type and severity of the
 29

violation. Id. § 229A.9B(3), (5). Additionally, when a committed person

violates the terms of a release plan, this indicates that they may no

longer be participating in the ongoing treatment anticipated by the

release plan that is intended to reintegrate them into society. This is of

particular concern when the violation is a sexual offense, as in

Anderson’s case. Further, Anderson’s sexual partner was one that he

would not have been granted permission to engage in sexual activity with

because his choice of a young and vulnerable partner was part of his

sexual offense cycle. Additionally, the Fort Des Moines facility never

grants permission for sexual relationships between two participants in

the release-with-supervision program.

The district court properly weighed the State’s reasons for

additional restraint with Anderson’s liberty interests. We find the

reasoning utilized by the courts in Arizona and Washington persuasive.

We conclude that, in the revocation context, the State needs to prove by

a preponderance of the evidence that the conditionally released person

violated the terms of release, that additional treatment is necessary, and

the community is no longer safe with the person in release with

supervision. The district court in this case properly balanced each of

these competing factors and reached an appropriate decision regarding

the level of supervision and control. After this balancing, the district

court decided on a statutorily allowed option.

It is important to emphasize the two primary factors that inform

our decision in this case. First, the district court only substituted one

form of conditional release—the transitional release program located at

CCUSO—for another form of conditional release—release with

supervision. This was based on what the district court found to be the

obvious need for greater treatment and supervision that could be
 30

provided at the transitional release program at CCUSO. Most

importantly, the district court did not order Anderson back to a secure

facility. If that had occurred, it might be necessary to revisit the

substantive due process argument as applied to Anderson. But that will

have to wait for another case. Under the facts here, we find that the

district court order did not violate Anderson’s substantive due process

rights.

D. Procedural Due Process. We must also determine whether the

statute violated Anderson’s right to procedural due process. We have

adopted the three-part test set forth by the Supreme Court in Mathews v.

Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, (1976), to determine the

process due to an individual deprived of a protected liberty interest. See

State ex rel. Hamilton v. Snodgrass, 325 N.W.2d 740, 742 (Iowa 1982)

(adopting and implementing the Mathews balancing test). The three

factors from the Mathews test that a court must consider in a procedural

due process analysis are

(1) “the private interest that will be affected by the official
action;” (2) “the risk of an erroneous deprivation of such
interest through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards;” and (3) “the Government’s interest, including
the function involved and the fiscal and administrative
burdens that the additional or substitute procedural
requirement would entail.”

Swanson v. Civil Commitment Unit for Sex Offenders, 737 N.W.2d 300,

308 (Iowa 2007) (quoting Mathews, 424 U.S. at 335, 96 S. Ct. at 903).

We have previously found that there is “no constitutional bar to the

civil confinement of sexually violent predators with untreatable

conditions when confinement is necessary to protect the public.” Id.

(quoting In re Det. of Darling, 712 N.W.2d 98, 101 (Iowa 2006)). However,
 31

those individuals do retain a liberty interest in the requirements and

procedures contained in chapter 229A. Id.

We must analyze the three Mathews factors as applied to

Anderson. The first factor is “the private interest that will be affected by

the official action.” Mathews, 424 U.S. at 335, 96 S. Ct. at 903.

Anderson has a private interest in his own personal liberty. His transfer

to the transitional release program at CCUSO curtails his freedom

because he had the ability to leave the Fort Des Moines facility without a

chaperone. While Anderson is allowed access to the community while he

remains in the transitional release program, it is at the sole discretion of

staff and with an escort.

The second factor is “the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards.” Id. The risk of an

erroneous deprivation of due process with the safeguards contained in

Iowa Code section 229A.9B is low. Section 229A.9B provides safeguards

before the district court is allowed to modify the terms of a committed

person’s release with supervision. See Iowa Code § 229A.9B. The court

must hold a hearing and find that the State proved by a preponderance

of evidence a violation has occurred. Id. § 229A.9B(4). The court then

has the ability to weigh different options and determine which is best

based on the violation that occurred. Id. § 229A.9B(5).

The final factor that must be considered is “the Government’s

interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirement would

entail.” Mathews, 424 U.S. at 335, 96 S. Ct. at 903. The State’s interest

in allowing the court to modify or heighten restrictions after a committed

person violates the terms of their release with supervision is high. The
 32

State has an interest in protecting the general public from sexually

violent persons and that includes an interest in monitoring behavior and

risk factors while those persons are on release with supervision. Here,

Anderson’s violation was connected to his cycle of offending. It was a

sexual offense, demonstrated planning, and Anderson took no

responsibility for the encounter.

Anderson’s right to procedural due process was not violated when

the district court found he violated the terms of his release with

supervision and ordered him placed in the transitional release program

at CCUSO.

IV. Conclusion.

The district court order revoking Anderson’s release-with-

supervision status and placing him at the transitional release program at

CCUSO did not violate his substantive or procedural due process rights

under either the United States Constitution or the Iowa Constitution.

Accordingly, we affirm the decision of the district court.

AFFIRMED.

All justices concur except Wiggins, Hecht and Appel, JJ., who

dissent.
 33

#15–2122, In re Det. of Anderson

WIGGINS, Justice (dissenting).

I disagree with the majority’s conclusion that under the findings

made by the district court it had the statutory or constitutional authority

to place Jeffrey Anderson in the transitional release program under Iowa

Code chapter 229A (2016).

I. Absence of Statutory Authority.

Chapter 229A contains the Code provisions concerning civil

commitment of sexually violent predators. The legislature included the

transitional release program as part of its civil commitment of sexually

violent predators. Iowa Code § 229A.8A. Transitional release is the last

phase of treatment for persons committed to the civil commitment unit

for sexual offenders (CCUSO). We have previously found the transitional

release program is the fifth phase of treatment while committed at

CCUSO. See Swanson v. Civil Commitment Unit for Sex Offenders, 737

N.W.2d 300, 303 (Iowa 2007); see also Iowa Code § 229A.8A (stating the

requirements for a person to be moved to transitional release).

Although section 229A.9B(5) authorizes a judge to place a person

who violates the terms of his or her release with supervision in the

transitional release program, a judge must make specific findings before

doing so. The first finding a court must make to place a person in the

transitional release program at CCUSO is that “[t]he committed person’s

mental abnormality is no longer such that the person is a high risk to

reoffend.” Iowa Code § 229A.8A(2)(a). Implicit in this finding is that the

person is still likely to reoffend, but at a lower risk than at the time the

person was originally committed to CCUSO. The district court never

made that finding in this case.
 34

Once a court makes an initial finding under section 229A.8A(2)(a),

the statute requires the court to make the following additional findings in

order for a court to commit a person to the transitional release program:

b. The committed person has achieved and
demonstrated significant insights into the person’s sex
offending cycle.

c. The committed person has accepted responsibility
for past behavior and understands the impact sexually
violent crimes have upon a victim.

d. A detailed relapse prevention plan has been
developed and accepted by the treatment provider which is
appropriate for the committed person’s mental abnormality
and sex offending history.

e. No major discipline reports have been issued for the
committed person for a period of six months.

f. The committed person is not likely to escape or
attempt to escape custody pursuant to section 229A.5B.

g. The committed person is not likely to engage in
predatory acts constituting sexually violent offenses while in
the program.

h. The placement is in the best interest of the
committed person.

Id. § 229A.8A(2). In this case, the district court never made these

findings before committing Anderson to the transitional release program.

Without these findings for commitment to the transitional release

program, the court could order Anderson returned to release with or

without supervision. In the alternative, the court could order him to

confinement in a secure facility at CCUSO after making the necessary

findings to do so. See id. §§ 229A.2, .7, .9B(5).

II. Absence of Constitutional Authority.

In a previous decision, we outlined the requirements of substantive

due process when a person’s liberty is at stake. There we said,
 35
Substantive due process prohibits the State from engaging in
arbitrary or wrongful acts “ ‘regardless of the fairness of the
procedures used to implement them.’ ” At the core of the
liberty protected by the Due Process Clause is a person’s
interest to be free from bodily restraint by arbitrary
government actions. However, this liberty interest is not
absolute.

In re Det. of Matlock, 860 N.W.2d 898, 903 (Iowa 2015) (citation omitted)

(quoting Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983

(1990)). In order to determine whether the State has violated a person’s

substantive due process, we must weigh the person’s liberty interest

against the State’s asserted reason for restraining that person’s liberty.

Id. at 904.

In the case of a commitment of a sexually violent predator to a

secure facility like CCUSO, the United States Supreme Court and our

court have found the State can confine a sexually violent predator civilly

for treatment as long as a person with a mental abnormality finds “it

difficult, if not impossible, for the person to control his dangerous

behavior.” In re Det. of Garren, 620 N.W.2d 275, 284 (Iowa 2000)

(quoting Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 2080

(1997)). Our legislature has complied with this standard by defining a

sexually violent predator as

a person who has been convicted of or charged with a
sexually violent offense and who suffers from a mental
abnormality which makes the person likely to engage in
predatory acts constituting sexually violent offenses, if not
confined in a secure facility.

Iowa Code § 229A.2(12).

We have also discussed the substantive due process rights of a

person who the court releases from a civil commitment with supervision.

See Matlock, 860 N.W.2d at 904–08. A person can be released from a

civil commitment as a sexually violent predator if the State cannot show
 36

that the committed “person’s mental abnormality remains such that the

person is likely to engage in predatory acts that constitute sexually

violent offenses if discharged.” Iowa Code § 229A.8(6)(d)(1). In this

situation, the court can release a person with or without supervision. Id.

§ 229A.9A. When released, the previously committed person is not

under a civil commitment, but only subject to outpatient conditions that

“bear a substantial relation to the interests of the individual and the

community.” Matlock, 860 N.W.2d at 908.

In this case, the State released Anderson with supervision, and he

violated the conditions the court placed on him while released with

supervision. We now must determine if the court violated his

substantive due process rights when the court recommitted him to

CCUSO’s transitional program under chapter 229A of the Code.

The majority uses a Matlock due process analysis to find the

district court order returning Anderson to CCUSO’s transitional release

program did not violate his due process rights. In Matlock, the court

released Matlock with supervision from the transitional release program

at CCUSO because the court found that although he still suffered from a

mental abnormality, he was not likely to engage in acts of sexual violence

upon release. Id. at 900. The Matlock due process analysis is less

stringent than the Hendricks–Garren due process analysis because

Matlock was no longer committed to the transitional release program at

CCUSO. Rather, the court released him from CCUSO with supervision.

In situations where the person is no longer committed to CCUSO, due

process only requires us “to properly balance the interest of the

community against the liberty interest of a person suffering from a

mental abnormality who is not likely to engage in acts of sexual violence

upon release.” Id.
 37

On the other hand, due process for persons committed to CCUSO

can only be satisfied if

[t]he precommitment requirement of a “mental abnormality”
or “personality disorder” is consistent with the requirements
of these other statutes that we have upheld in that it
narrows the class of persons eligible for confinement to those
who are unable to control their dangerousness.

Hendricks, 521 U.S. at 358, 117 S. Ct. at 2080. The flaw in the

majority’s reasoning is that it fails to acknowledge sending Anderson to

the transitional release program at CCUSO is recommitting him to the
CCUSO. The majority is wrong and without any legal authority to

support its conclusion that “the district court only substituted one form

of conditional release—the transitional release program located at

CCUSO—for another form of conditional release—release with

supervision.”

Other states faced with this same situation have agreed with my

analysis. In New Jersey, before a court can recommit a person for

violating a conditional release, the court must find the person is

dangerous because he or she is highly likely to reoffend. In re Civil

Commitment of E.D., 874 A.2d 1075, 1076–77 (N.J. 2005). The Supreme

Judicial Court of Massachusetts reached the same conclusion.

Commonwealth v. Travis, 361 N.E.2d 394, 399 (Mass. 1977).

The Arizona and Washington appellate court decisions cited by the

majority do not support a conclusion that the court need not afford the

Hendricks–Garren due process analysis when it recommits a person to

CCUSO. The Arizona court of appeals required a finding that before a

court could return a person on conditional release to confinement, the

state had to prove that the person was dangerous. In re Pima Cty. Mental

Health Cause No. A20020026, 352 P.3d 921, 924 (Ariz. Ct. App. 2015).
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In Pima County, the court only held the state could prove dangerousness

by a preponderance of evidence, rather than by the higher standard of

beyond a reasonable doubt because a conditional release under Arizona

law is not a release from the commitment. Id.

The Washington appellate court only dealt with whether the state

had to prove a willful violation in order to remove a civilly committed sex

offender from a less restrictive alternative to commitment. In re Det. of

Wrathall, 232 P.3d 569, 569 (Wash. Ct. App. 2010). It held the state did

not have to prove a willful violation. Id. at 572. Notably, in affirming the

offender’s recommitment, the court found the offender acknowledged he

posed a danger to society. Id.

Thus, the Arizona and Washington appellate court decisions relied

upon by the majority address the standard of proof required for

recommitment, not the due process analysis required. The majority cites

no authority allowing a court to recommit Anderson to CCUSO’s

transitional release program without a Hendricks–Garren due process

analysis. Because the district court did not make the proper Hendricks–

Garren due process findings, I would remand the case to the district

court to determine the proper placement of Anderson, requiring the court

to give due consideration to the statutory and due process requirements

that must be afforded to him.

Hecht and Appel, JJ., join this dissent.