In the Matter of V.H., Alleged to be Seriously Mentally Impaired, V.H.

IN THE SUPREME COURT OF IOWA

No. 22–0952

Submitted September 13, 2023—Filed October 13, 2023

IN THE MATTER OF V.H., Alleged to be Seriously Mentally Impaired.

V.H.,

Appellant.

Appeal from the Iowa District Court for Johnson County, Lars Anderson,

Judge.

Respondent appeals the district court ruling denying his motion to

represent himself in an involuntary civil commitment proceeding under Iowa

Code chapter 229 and the ruling requiring his hospitalization. AFFIRMED.

Waterman, J., delivered the opinion of the court, in which all justices

joined.

Charles D. Paul of Nidey Erdahl Meier & Araguás, P.L.C., Cedar Rapids,

for appellant.

Brenna Bird, Attorney General, and Sarah A. Jennings and Eric H.

Wessan, Assistant Attorneys General, for appellee.
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WATERMAN, Justice.
This appeal presents the question of whether a person facing involuntary

civil commitment for mental illness under Iowa Code chapter 229 has a federal

constitutional right to self-representation. Iowa Code section 229.9 requires that

an attorney represent the respondent at all stages of the proceedings. The

respondent in this case, under court-ordered psychiatric treatment, had a

history of self-harm, suicide threats, and refusal to take his medications. While

represented by counsel, he appealed his commitment order and filed a motion

“under the 6th Amendment” to represent himself. The district court denied his

motion to proceed pro se and, after a hearing, ordered his continued

hospitalization, rejecting his argument that the State failed to show a qualifying

recent overt act of self-harm. The respondent appealed both rulings, and we

retained the case.

On our review, we hold that respondents in Chapter 229 proceedings do

not have a federal constitutional right to represent themselves and forego the

legal representation required by the statute. This respondent failed to preserve a

claim under the Iowa Constitution. The Sixth Amendment right to counsel and

right to self-representation in criminal cases do not apply to this Chapter 229
proceeding. And most courts reaching the issue have rejected a federal due

process right to self-representation in analogous mental health civil commitment

proceedings. These cases recognize a circularity problem: the court would have

to first determine whether the respondents in an involuntary mental health

commitment proceeding are competent to represent themselves and waive their

statutory right to counsel; yet the validity of that waiver, in turn, could be called

into question whenever the court finds the pro se respondent is so seriously

mentally impaired as to require involuntary treatment.
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On the merits, we determine that the district court’s factual findings,

including a recent overt act showing dangerousness, are supported by

substantial evidence and binding on appeal. We affirm the rulings for the reasons

more fully explained below.

I. Background Facts and Proceedings.

V.H., now age 22, has struggled with mental health problems since

childhood, with multiple incidents of suicidal ideation. On May 30, 2019, V.H.

began serving consecutive prison sentences totaling up to eight years for

convictions on two counts of assault causing injury to peace officers and three

counts of first-degree harassment. He was incarcerated at the Iowa Medical and

Classification Center (IMCC) in Coralville. There, prison staff began documenting

instances of his aggressive and impulsive behavior—including banging his head,

damaging property, harassing female staff, and attempting to swallow metal

objects. V.H. was placed in restraints at times after physically resisting officers

and threatening self-harm.

In the spring of 2020, V.H.’s behavior worsened. He refused to take his

medications, claiming he had no need for the treatment. On May 1, V.H. became

combative with staff, broke off a sprinkler head, and threatened to swallow it. He
also resisted efforts to subdue him, resulting in officers placing him in restraints

to administer his medication. Several days later, V.H. threatened to tie a sheet

around his neck and was placed in suicide prevention. On May 4, IMCC staff

applied for an order of involuntary hospitalization under Iowa Code chapter 229.

Dr. Gary Keller, an IMCC psychiatrist, examined V.H. and diagnosed him

with impulse control disorder, borderline intellectual functions, and an

unspecified mood disorder exhibiting symptoms of anxiety and depression. A

hearing was conducted on May 8 by a judicial hospitalization referee. The
referee, relying on Dr. Keller, found V.H. to be seriously mentally impaired, a
 4

danger to himself and others if untreated, and lacking “sufficient judgment to

make responsible decisions with respect to [his] hospitalization or treatment.”

The referee ordered V.H.’s involuntary commitment for mental health treatment

within the IMCC.

Over the next two years, a judicial hospitalization referee regularly

reviewed V.H.’s commitment, and a series of court orders left his commitment in

place. Dr. Keller filed periodic reports1 supporting V.H.’s continuing

hospitalization. We summarize highlights from these reports:

• August 2020: V.H. struggled with his behavior and safety—
most notably, banging his head. On two occasions, he required
physical restraint by staff to stop him from banging his head. V.H.
refused his medications and failed to comprehend his need for
treatment.

• November 2020: V.H. repeatedly banged his head and
encouraged others to do so. He lacked awareness of his mental
health and related actions.

• February 2021: V.H. was placed on suicide watch and injury
prevention at least four times from December 2020 to February
2021. His placement stemmed from threatening suicidal actions,
such as tying a sheet around his neck and swallowing bolts.

• May 2021: V.H. was again placed on suicide watch and
injury prevention four times in a two-week span. He refused oral
medications on “a few instances . . . in the past couple weeks.” He
believed he did not suffer from a mental illness and denied needing
any medications.

• August 2021: V.H. had several episodes of banging his head
and resisting staff. He required “periodic de-escalation” roughly once
a week. V.H. refused his medication at times.

1Iowa Code § 229.15(2) (2022) provides:

Not more than sixty days after the entry of a court order for treatment of a patient
. . . the medical director of the facility or the psychiatrist or psychiatric advanced
registered nurse practitioner treating the patient shall report to the court which
entered the order. The report shall state whether the patient’s condition has
improved, remains unchanged, or has deteriorated, and shall indicate if possible
the further length of time the patient will require treatment by the facility.
 5

• November 2021: V.H. physically resisted and spit on staff
members. He continued to lack insight and displayed unpredictable
behaviors.

• March 2022: V.H. believed he did not have a mental illness
and denied needing any medication. He had “many incidents” of
refusing to take his medications.

On March 17, 2022, the district court again confirmed V.H.’s continuing

commitment. A week later, V.H., by handwritten letter, moved to terminate his

commitment and asked to proceed pro se so he could personally cross-examine

Dr. Keller. On April 1, Dr. Keller submitted another periodic report diagnosing

V.H. with Bipolar Disorder Type 1, Impulse Control Disorder, and Antisocial

Personality Disorder. Dr. Keller noted that V.H. committed multiple instances of

self-harm—headbanging and fighting with the staff—requiring him to be placed

in restraints, had been placed on suicide watch eight times since early February,

and still refused his medications.

The judicial hospitalization referee conducted a hearing on April 4, where

V.H. was represented by court-appointed counsel Charles Paul. On April 6, the

hospitalization referee ordered V.H.’s continuing commitment for hospitalization

within the IMCC, relying on the report and testimony of Dr. Keller. The same

day, V.H. submitted a handwritten request to appeal to the district court and
represent himself, with Paul as standby counsel. Paul, in turn, filed a notice of

appeal to the district court and a motion to allow V.H. to proceed pro se, relying

on the Sixth Amendment and caselaw. The district court set a hearing for

May 24.

Meanwhile, Dr. Keller’s next report, dated May 23, noted that V.H. became

“defiant” after his April 4 hearing with the referee and refused his oral

medications, necessitating “injectable medications” to calm him down. V.H. later

got in a fight with another inmate and was placed on security status. On May 17,
a week before his scheduled court hearing, V.H. was again banging his head and
 6

refusing his medication, requiring injections. V.H. continued denying he needed

medication or treatment, and Dr. Keller maintained his recommendation for his

civil commitment.

On May 24, the district court heard the appeal. V.H. appeared with

attorney Paul. The court first addressed V.H.’s motion to proceed pro se. The

district court denied the motion on the record, noting that Iowa Code

section 229.9 requires an attorney to represent the individual at all proceedings

relating to their commitment. The district court further stated that the Sixth

Amendment “was inapplicable” to a civil commitment proceeding, and “the

Fourteenth Amendment substantive due process rights were not offended by the

statute’s requirement that somebody be represented by counsel.” The district

court referred to state supreme court cases from Montana and Vermont as

persuasive authority denying the right to self-representation in a civil

commitment proceeding.2

Dr. Keller testified that V.H. still poses a danger to himself and others and

that the civil commitment within the prison remains necessary for his treatment.

V.H. had the opportunity, through his counsel, to cross-examine Dr. Keller. The

court allowed V.H. to make a statement. He argued that Dr. Keller was wrong to
continue his civil commitment, and he stated he was not mentally ill and did not

need to take any medication, insisting he only has “a little bit of anger problems.”

Paul argued that the State had failed to establish the “dangerousness” element

necessary for civil commitment.

The district court entered its written ruling the next day. The court noted

that “[f]or the reasons stated on the record,” it denied V.H.’s “request to represent

himself” and cited the Montana and Vermont cases in an accompanying footnote.

2In re S.M., 403 P.3d 324 (Mont. 2017), and In re G.G., 165 A.3d 1075 (Vt. 2017).
 7

Relying on the testimony and reports of Dr. Keller, the court affirmed the

referee’s decision to continue V.H.’s involuntary commitment. The district court

found:

[T]he State has met its burden. Dr. Keller’s testimony established
the existence of a mental illness [and that V.H.] . . . lacks judgmental
capacity. He refuses medications when he becomes upset, does not
believe he has any mental illness, and has shown an inability to
control his behaviors (despite his protestations otherwise). When
consistently taking medications, [V.H.] has been able to have fairly
lengthy stretches of doing well. When [V.H.] becomes upset, he
bangs his head (most recently on May 17), which in turn establishes
the requisite dangerousness. Absent a commitment order, it is likely
that [V.H.] will stop taking his medications and there will be a
corresponding deterioration in his behaviors.

V.H. appealed through counsel, arguing the district court erred in denying

his right to self-representation under the Sixth and Fourteenth Amendments and

erred in finding that a qualifying “recent overt act” supported the involuntary

hospitalization because the headbanging the week before the hearing caused no

injury. The State argued that the district court correctly denied V.H.’s motion to

proceed pro se because Iowa Code section 229.9 requires representation by

counsel “and is based on the reality that a person who is within a committal

proceeding is not able to provide themselves with representation.” The State
noted that “even in the criminal process, the right to represent oneself is not

absolute and a Judge has the ability to determine if a defendant is capable of

conducting their own defense.” The State observed that a respondent allowed to

waive his right to counsel could later challenge his competency to do so. On the

merits, the State argued the headbanging incident a week before the district

court hearing met the recency requirement and was “not a onetime event,

because in the past there were injuries and bleeding” from his headbanging. In

his appellate reply brief, V.H., for the first time, raised the Iowa Constitution in
a single sentence, stating without any further elaboration: “The Iowa
 8

Constitution’s guaranty to [c]ounsel is broader than the U.S. Constitution

applying the right to counsel to any case involving life of [l]iberty of the . . .

individual. I[owa] Const. [a]rt. I. § 10.” We retained the case.

II. Standard of Review.

We conduct a de novo review of claims that a constitutional right to

self-representation was violated by the district court. State v. Johnson,

756 N.W.2d 682, 686 (Iowa 2008); see also In re Det. of Shaffer, 769 N.W.2d 169,

172 (Iowa 2009) (reviewing constitutional claims de novo in civil commitment

proceedings).

“We review challenges to the sufficiency of the evidence in involuntary

commitment proceedings for errors at law.” In re B.B., 826 N.W.2d 425, 428 (Iowa

2013). The elements required for an involuntary commitment must be

established by clear and convincing evidence. In re J.P., 574 N.W.2d 340, 342

(Iowa 1998). The district court’s findings of fact in a Chapter 229 proceeding “are

binding on us if supported by substantial evidence.” Id. “Evidence is substantial

if a reasonable trier of fact could conclude the findings were established by clear

and convincing evidence. We will not set aside the trial court’s findings unless,

as a matter of law, the findings are not supported by clear and convincing
evidence.” Id.

III. Analysis.

We first address whether the district court correctly ruled V.H. could not

represent himself in this Chapter 229 proceeding. We determine V.H. failed to

preserve error on his claimed right to self-representation under article I,

section 10 of the Iowa Constitution, and the district court correctly denied his

claim under the Sixth and Fourteenth Amendments to the United States

Constitution.
 9

On the merits, we affirm the district court’s ruling continuing V.H.’s

involuntary commitment for hospitalization within the IMCC. We agree with the

State that substantial evidence supports the district court’s findings, including

a recent overt act showing dangerousness.

A. The District Court Correctly Denied V.H.’s Motion to Represent

Himself. V.H.’s right to counsel is undisputed and indeed mandated under Iowa

Code section 229.9. This does not mean he has a constitutional right to refuse

counsel and represent himself in this civil proceeding for his involuntary

commitment. The legislature did not provide a right to waive counsel in

chapter 229, and V.H.’s claim under the federal constitution to represent himself

fails.

1. V.H. failed to preserve error on any right to self-representation under

article I, section 10 of the Iowa Constitution and forfeited any such claim on

appeal. “It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide

them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). In district

court, V.H. relied on the Sixth and Fourteenth Amendments to the United States

Constitution for his claimed right to self-representation without mentioning the
Iowa Constitution.3 His failure to raise the state constitutional claim in the

district court means the claim is not preserved for appellate review.

In addition, V.H. forfeited any such claim on appeal. V.H. first cited

article I, section 10 of the Iowa Constitution in the single sentence in his

appellate reply brief that we quoted above. That is too late to raise the issue. See

3V.H.’s handwritten letter requesting a court date stated in part, “I would also like to
represent myself and remove [prior counsel] from my case. It is part of my constitution to not
have legal [counsel] if I do not want it. I would ask the courts to please let me represent myself.”
Article I, section 10 of the Iowa Constitution was not cited to the hospital referee or district court,
and the court made no ruling under the state constitution.
 10

State v. Basquin, 970 N.W.2d 643, 659 n.5 (Iowa 2022) (“We have repeatedly held

we will not consider issues raised for the first time in a reply brief.” (quoting

State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009))). V.H. also failed to develop

his belated Iowa constitutional claim “in any meaningful way, and we decline to

develop these arguments on his behalf.” Hrbeck v. State, 958 N.W.2d 779, 788

(Iowa 2021); see also Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in

support of an issue may be deemed waiver of that issue.”); In re S.M., 403 P.3d

324, 327 n.1 (Mont. 2017) (“Because S.M. failed to provide separate legal analysis

regarding any possible greater protections the Montana constitution affords [for

self-representation in a civil commitment proceeding], the court declines to

decide those issues here.”). Accordingly, we confine our analysis to V.H.’s

claimed federal constitutional right to self-representation.

2. V.H. has no federal constitutional right to self-representation in this

Chapter 229 civil commitment proceeding. V.H. asks us to extend, for the first

time, the federal constitutional right to self-representation in criminal cases to

this proceeding for his involuntary civil commitment under Iowa Code

chapter 229. He, in effect, asks us to declare unconstitutional the legislature’s

requirement that attorneys represent respondents in these proceedings. We
decline to do so.

Iowa’s involuntary civil commitment statute unequivocally requires

respondents to be represented by counsel, using the mandatory term “shall”:

“The respondent’s attorney shall represent the respondent at all stages of the

proceedings, and shall attend the hospitalization hearing.” Iowa Code § 229.9

(2022) (emphasis added). Before the proceedings commence, the court must

determine if the respondent has an attorney “who is able and willing to represent

the respondent in the hospitalization proceeding, and if not, whether the
respondent is financially able to employ an attorney and capable of meaningfully
 11

assisting in selecting one.” Id. § 229.8(1). And if the respondent’s attorney

withdraws, the court “shall appoint” another attorney. Id. § 229.14A(5)(c)

(emphasis added). Nowhere in chapter 229 is there any provision allowing the

respondent to waive the right to counsel. If the legislature had intended to allow

self-representation in Chapter 229 proceedings, it presumably would have said

so, as it has in other chapters.4 V.H. fails to meet his heavy burden to show

chapter 229’s requirements for representation by counsel violate the Federal

Constitution. See State v. Aschbrenner, 926 N.W.2d 240, 246 (Iowa 2019)

(describing the heavy burden to overcome the presumption of constitutionality).

a. The Sixth Amendment. V.H. relies on federal caselaw under the Sixth

Amendment that recognizes a right to self-representation in criminal cases:

Faretta v. California. 422 U.S. 806, 807 (1975) (holding that the Sixth

Amendment does not permit a state to “hale a person into its criminal courts

and there force a lawyer upon him”). In our view, the district court correctly

determined the Sixth Amendment is inapplicable to this Chapter 229 civil

commitment. The Sixth Amendment provides: “In all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence.” U.S. Const. amend. VI (emphasis added). The text of this amendment
applies only to criminal proceedings, and the Supreme Court has never extended

the right to self-representation to civil commitment proceedings. To the contrary,

the Supreme Court has recognized that “[i]n a civil commitment[,] state power is

not exercised in a punitive sense,” and therefore, “a civil commitment proceeding

4The legislature expressly permits other litigants to waive their right to court-appointed

counsel in civil proceedings and represent themselves. See, e.g., Iowa Code § 232.11(2)
(governing waiver of right to counsel in juvenile delinquency hearings); id. § 600A.6A (allowing
court-appointed counsel for an indigent party in a proceeding to terminate parental rights “if the
person requests appointment of counsel” (emphasis added)); id. § 822.3A(2) (allowing an
applicant for postconviction relief to “proceed[] without the assistance of counsel”).
 12

can in no sense be equated to a criminal prosecution.” Addington v. Texas,

441 U.S. 418, 428 (1979) (footnote omitted). V.H. cites no federal cases holding

that the Sixth Amendment applies in civil mental health commitment

proceedings, and we found none.

The United States Court of Appeals for the Eighth Circuit has expressly

declined to recognize a Sixth Amendment right to self-representation in civil

commitment proceedings. See, e.g., United States v. Vazques, 81 F.4th 820, 822

(8th Cir. 2023); United States v. O’Laughlin, 934 F.3d 840, 841 (8th Cir. 2019).

The O’Laughlin court affirmed the denial of the respondent’s motion to proceed

pro se in challenging his civil commitment, stating:

Civil commitment involves a loss of liberty, to be sure. But rather
than imposing a punitive sentence upon criminal conviction, the
civil commitment process provides for release once the individual is
no longer a danger to others. Following the logic of the Supreme
Court in Addington, we hold a civil commitment proceeding under
[18 U.S.C.] § 4246 is not a criminal prosecution for purposes of the
Sixth Amendment.

934 F.3d at 841 (citations omitted).

We reach the same conclusion under chapter 229. See In re Det. of Crane,

704 N.W.2d 437, 438 n.3 (Iowa 2005) (noting that Chapter 229A proceedings

“are civil and not criminal in nature, and therefore the Sixth Amendment is not

directly implicated”). Other state courts are in accord. See Conservatorship of

Joel E., 33 Cal. Rptr. 3d 704, 708 (Ct. App. 2005) (“[T]he Sixth Amendment

applies exclusively to ‘criminal prosecutions’ and does not afford individuals a

right to self-representation in civil proceedings.” (citation omitted)); In re S.M.,

403 P.3d at 327 (“[T]he Sixth Amendment of the United States Constitution does

not apply to civil commitment proceedings. By its very language the Sixth

Amendment is limited to ‘criminal prosecutions.’ ” (quoting U.S. Const. amend.
VI)); In re G.G., 165 A.3d 1075, 1084, 1086 (Vt. 2017) (declining to extend Sixth
 13

Amendment right to self-representation to civil commitment proceedings). V.H.’s

Sixth Amendment claim fails.

b. The Fourteenth Amendment. V.H. fares no better under the due process

clause of the Fourteenth Amendment. He relies heavily on McNabb v.

Osmundson, where we held that persons facing incarceration in civil contempt

proceedings must be provided counsel under the Fourteenth Amendment.

315 N.W.2d 9, 13–14 (Iowa 1982) (en banc). But that case did not involve any

claimed right to self-representation. After briefs were filed in V.H.’s case, the

Eighth Circuit Court of Appeals enforced a statutory requirement for counsel to

handle motions to discharge a civil commitment and held that the person

involuntarily committed had no due process right to proceed pro se. Vazques, 81

F.4th at 822 (rejecting a Fifth Amendment due process claim in a federal court

proceeding). V.H. does not specify whether he is making a procedural or

substantive due process claim. The district court regarded his due process claim

as substantive but cited cases rejecting each theory: In re S.M., 403 P.3d at 327–

31 (rejecting substantive due process claim), and In re G.G., 165 A.3d at 1084–

91 (rejecting procedural due process claim). Like the district court, we find these

cases persuasive. We address each theory.
(1) Substantive due process. V.H. relied on the Sixth Amendment to

support his due process claim. But as we have explained, the Sixth Amendment

is inapplicable to his civil commitment proceedings. The Montana Supreme

Court thoroughly reviewed caselaw, statutes nationwide, and the history of

mental health treatment in this country to conclude there is no fundamental

right to self-representation in civil commitment proceedings. In re S.M., 403 P.3d

at 328–31. We reach the same conclusion.

The In re S.M. court addressed whether the asserted right is “objectively
deeply rooted in the Nation’s history and tradition, and implicit in the concept of
 14

ordered liberty, such that neither liberty nor justice would exist if they were

sacrificed.” Id. at 328 (quoting Washington v. Glucksberg, 521 U.S. 702, 720–21

(1997)). The Montana court contrasted the right to self-representation in criminal

cases, which enjoyed “nearly universal” support, from the right to waive counsel

in civil commitment proceedings, where such consensus is lacking. Id. at 328–29

(quoting Faretta, 422 U.S. at 817). The In re S.M. court examined the evolving

history of mental health treatment and found that “proceedings for involuntary

civil commitment are relatively modern developments.” Id. at 329. The court

concluded:

[T]his history tells us that self-representation in civil commitment
proceedings has not been protected since the beginning of the Nation. In
fact, strong procedural safeguards to protect the interests of those facing
involuntary civil commitment are a rather recent development and have
focused on improving the fairness and accuracy of the process.

The history tells us further that the process afforded to respondents
in civil commitment proceedings is the subject of a “considered legislative
response,” and we should be cautious to extend constitutional protections
that “place the matter outside the arena of public debate and legislative
action.”

Id. at 329–30 (quoting Dist. Att’y’s Off. for Third Jud. Dist. v. Osborne, 557 U.S.

52, 73 (2009) (plurality opinion)). The In re S.M. court then aptly observed, “There

is a very real risk that self-representation in civil commitment proceedings would

increase the likelihood of an unfair or erroneous result rather than enhancing

the fairness or accuracy of the proceeding.” Id. at 330. We agree, and we hold

V.H. lacks a fundamental right under the Federal Constitution to represent

himself and proceed pro se in this Chapter 229 mental health civil commitment

proceeding.

With no fundamental right implicated, the statutory requirement for

representation by counsel need only “be rationally related to legitimate
government interests.” Glucksberg, 521 U.S. at 728. We conclude that requiring
 15

a lawyer to represent persons facing involuntary civil commitment is rationally

related to the legitimate legislative objective of preserving the “fairness, integrity,

and accuracy in the civil commitment process.” In re S.M., 403 P.3d at 331. The

district court correctly rejected V.H.’s substantive due process claim.

(2) Procedural due process. The district court also relied on the Vermont

Supreme Court’s decision that thoroughly analyzed and rejected a procedural

due process right to self-representation in a civil commitment proceeding. In re

G.G., 165 A.3d at 1084–91. The In re G.G. court determined, as we have, that the

Sixth Amendment right to self-representation does not apply in civil commitment

proceedings. Id. at 1084, 1086. The court treated the argument for

self-representation as “grounded in procedural due process.” Id. at 1084. The

court noted the liberty interests at stake under Vermont’s civil commitment

statute trigger due process protection. Id. (citing Vitek v. Jones, 445 U.S. 480,

491–92 (1980), and quoting the case for the proposition that “[w]e have

recognized that for the ordinary citizen, commitment to a mental hospital

produces a massive curtailment of liberty, and in consequence requires due

process protection.”). So too under Iowa Code chapter 229. See In re M.T.,

625 N.W.2d 702, 706 (Iowa 2001) (en banc) (“[A] respondent’s liberty interests
are at stake at an involuntary commitment hearing.”).

“[O]nce it is determined due process applies, the question remains what

process is due.” In re G.G., 165 A.3d at 1085 (alteration in original) (quoting

Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The In re G.G. court applied the

Mathews three-factor test, see Mathews v. Eldridge, 424 U.S. 319, 335 (1976),

examining: “(i) the interests of the individual; (ii) the governmental interest

affected; and (iii) the risk of erroneous deprivation of the individual’s interests if

the right he or she asserts is not recognized, and the probable value, if any, of
recognizing that right.” 165 A.3d at 1085–86. We too apply the Mathews test in
 16

evaluating procedural due process claims under Iowa’s civil commitment

statutes. See In re Det. of Williams, 628 N.W.2d 447, 458 (Iowa 2001) (en banc).

In analyzing the first factor, the In re G.G. court recognized that the

individual’s interest in self-representation in criminal cases is based on their

dignity and autonomy to conduct their own defense at trial, and the court noted

that the right to self-representation in a criminal case is not absolute but is

limited to those who are mentally competent to defend themselves. 165 A.3d at

1087; see also Indiana v. Edwards, 554 U.S. 164, 176 (2008). The In re G.G.

court echoed the Supreme Court’s observation:

[In a criminal case,] a right of self-representation at trial will not
affirm the dignity of a defendant who lacks the mental capacity to
conduct his defense without the assistance of counsel. To the
contrary, given that defendant’s uncertain mental state, the
spectacle that could well result from his self-representation at trial
is at least as likely to prove humiliating as ennobling.

Id. (quoting Edwards, 554 U.S. at 176). The In re G.G. court continued, “As is

true of a mentally ill criminal defendant, a mentally ill patient who engages in

self-representation at a civil hearing runs the risk of undermining his or her

dignity and autonomy by presenting the case ineffectively as a result of the

underlying mental illness.” Id. at 1088. We agree.
Relatedly, in analyzing the second factor, the In re G.G. court concluded a

right to self-representation would undermine the State’s interest in assuring the

fairness and accuracy of civil commitment proceedings. Id. at 1089. The court

noted that the legislature mandated representation by counsel in civil

commitment proceedings, and the State has a strong interest in enforcing that

statutory requirement. Id. at 1090. The Maine Supreme Court reached the same

conclusion. In re Penelope W., 19 A.3d 813, 815 (Me. 2011) (rejecting right to

self-representation in civil commitment hearings). The State of Iowa has the
 17

same interest in enforcing chapter 229’s requirement that respondents be

represented by counsel.

The In re G.G. court also emphasized the circularity problem inherent in

allowing self-representation in an involuntary commitment hearing:

[A] mental health patient who represents him or herself and who is
adjudicated in need of commitment or medication would then be in
a position to challenge the initial waiver of counsel as not knowing,
intelligent or voluntary and thereby claiming a right to a new hearing
with counsel.

165 A.3d at 1090. The district court raised the same concern about V.H.’s claim.

Recognizing a right to self-representation in a Chapter 229 proceeding would

require a separate determination of the respondent’s competency to waive

counsel. See State v. Stephenson, 608 N.W.2d 778, 782–83 (Iowa 2000) (en banc)

(reversing a criminal conviction when the district court failed to determine the

defendant’s mental competency to waive his right to counsel through an

appropriate colloquy). As the In re G.G. court concluded, the “lack of finality that

is threatened by a continuous review of a mental-health patient’s competency to

waive counsel also implicates other government interests, including expedient

resolution of cases . . . and the maintenance of an effective and uninterrupted

treatment plan for the patient.” 165 A.3d at 1090.
In analyzing the third factor, the In re G.G. court concluded that a patient’s

self-representation would not reduce the risk of an erroneous outcome, stating

that “[n]umerous courts have commented that, in most cases, the right of

self-representation is the equivalent of a right to a poor defense.” Id. (quoting

Conservatorship of Joel E., 33 Cal. Rptr. 3d at 710). “Rather than enhancing the

fairness or accuracy of a proceeding, allowing a mental-health patient to

represent him or herself runs the risk of undermining the accuracy of the
 18

proceeding.” Id. at 1091. We agree that this observation is true “in most cases.”

Id. at 1090.

Several courts have allowed self-representation in civil mental health

commitment proceedings under their state constitution. See, e.g., In re Det. of

J.S., 159 P.3d 435, 440 (Wash. Ct. App. 2007) (applying state constitutional

provision expressly allowing self-representation); In re S.Y., 469 N.W.2d 836, 840

(Wis. 1991) (allowing waiver of right to counsel in civil commitment proceeding

based on state constitutional provision expressly allowing self-representation).

But V.H. failed to preserve any claimed right under the Iowa Constitution, so

those decisions are inapposite.

Other courts have allowed self-representation in civil mental health

commitment proceedings through statutory construction. See, e.g., In re

Jesse M., 170 P.3d 683, 686, 688 (Ariz. Ct. App. 2007) (holding that “the

intended beneficiary of a statute may waive its benefit” so long as they are

mentally competent to make that decision); In re Civ. Commitment of D.Y.,

95 A.3d 157, 160–61 (N.J. 2014) (“Because we resolve this case by statutory

construction, we do not reach the Sixth Amendment and due process issues

raised by D.Y.”); In re R.Z., 415 N.W.2d 486, 488 (N.D. 1987) (“[A] respondent in
a mental health proceeding may waive counsel and assert the right to self-

representation, only if the waiver is knowing and intelligent and voluntary and

only if it appears on the record.”). As discussed above, we construe Iowa Code

chapter 229 to require counsel, and we distinguish these cases on that basis. We

find more persuasive the Vermont and Montana opinions that reviewed the

foregoing decisions and declined to follow them. See In re G.G., 165 A.3d at 1087;

In re S.M., 403 P.3d at 328–29.

More recently, another court construed its state civil commitment statute
as implicitly allowing waiver of counsel based on the statute’s conditional
 19

language (“if represented by counsel”). In re Arthur A., 457 P.3d 540, 545–47

(Alaska 2020) (emphasis added) (quoting Alaska Stat. § 47.30.725(f)). Such

conditional language is not found in Iowa Code chapter 229’s provisions

requiring representation by counsel, and we distinguish this Alaska precedent

for that reason.

We hold that V.H. does not have a procedural due process right under the

Fourteenth Amendment to waive the attorney mandated in Iowa Code

chapter 229 and represent himself. We note that V.H. was able to consult with

his attorney, attend the hearings in person, and make his own statement to the

court. We affirm the district court’s ruling denying V.H.’s motion to proceed

pro se.

B. The District Court’s Factual Findings Supporting V.H.’s

Commitment Are Supported by Substantial Evidence. Our cases require the

State to prove a “recent overt act, attempt or threat” to establish that V.H. is a

danger to himself or others justifying his civil commitment. In re J.P., 574 N.W.2d

at 344 (quoting In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986)). V.H. argues his

headbanging the week before the district court hearing does not qualify because

he did not injure himself on that occasion. The State responds that “[t]his was
not a onetime event, because in the past, there were injuries and bleeding.” We

agree with the State and conclude that the district court’s “endangerment”

finding is supported by substantial evidence. That finding is binding on appeal.

Id. at 342.

Our review of the record confirms V.H. had a long history of headbanging,

at times resulting in bleeding and injury, with the most recent headbanging

occurring on May 17, 2022, the week before the district court found he was a

danger to himself. The district court did not view the May 17 headbanging
incident in isolation, nor do we. Indeed, V.H. was placed on suicide watch in the
 20

IMCC no less than eight times that spring. The district court’s findings are

supported by the testimony of V.H.’s treating psychiatrist, Dr. Keller.

A person may be involuntarily committed if they are deemed to possess a

“serious mental impairment” or are “seriously mentally impaired.” Iowa Code

§§ 229.1(20), .6. Section 229.1(20) defines “serious mental impairment.”5 This

definition has three elements: the person must be (1) “afflicted with a mental

illness”; (2) “lack ‘sufficient judgment to make responsible decisions with respect

to his or her hospitalization or treatment’ ”; and (3) “likely, if allowed to remain

at liberty, to inflict physical injury on [the person’s self] or others or to inflict

emotional injury on the designated class of persons.” Mohr, 383 N.W.2d at 541

(quoting In re Oseing, 296 N.W.2d 797, 799 (Iowa 1980)).

5Iowa Code section 229.1(20) provides:

“Seriously mentally impaired” or “serious mental impairment” describes the
condition of a person with mental illness and because of that illness lacks
sufficient judgment to make responsible decisions with respect to the person’s
hospitalization or treatment, and who because of that illness meets any of the
following criteria:
a. Is likely to physically injure the person’s self or others if allowed to
remain at liberty without treatment.
b. Is likely to inflict serious emotional injury on members of the person’s
family or others who lack reasonable opportunity to avoid contact with the person
with mental illness if the person with mental illness is allowed to remain at liberty
without treatment.
c. Is unable to satisfy the person’s needs for nourishment, clothing,
essential medical care, or shelter so that it is likely that the person will suffer
physical injury, physical debilitation, or death.
d. Has a history of lack of compliance with treatment and any of the
following apply:
(1) Lack of compliance has been a significant factor in the need for
emergency hospitalization.
(2) Lack of compliance has resulted in one or more acts causing serious
physical injury to the person’s self or others or an attempt to physically injure the
person’s self or others.
 21

The third element, known as the “endangerment element,” see In re J.P.,

574 N.W.2d at 344, requires the threat the patient poses to himself or another

“be evidenced by a ‘recent overt act, attempt[,] or threat.’ ” In re Mohr, 383 N.W.2d

at 542 (quoting Stamus v. Leonhardt, 414 F. Supp. 439, 451 (S.D. Iowa 1976)).

The element “requires a predictive judgment, based on prior manifestations but

nevertheless ultimately grounded on future rather than past danger.” In re J.P.,

574 N.W.2d at 344 (quoting In re Mohr, 383 N.W.2d at 542). “Our task is to

determine whether there is substantial evidence to support [the district court’s]

finding.” In re Foster, 426 N.W.2d 374, 377 (Iowa 1988). V.H. challenges only this

endangerment element.

The judicial hospitalization referee’s April 6, 2022 order found that the

State met its burden of proving dangerousness. The referee described V.H. as

exhibiting a propensity “to act out and act impulsively,” as shown by him

“banging his head causing bleeding or brain damage.” The referee further noted

that V.H.’s agitation, acting out, and headbanging caused him to be put on

suicide watch eight times since the beginning of February. The referee stated

that V.H. admitted to banging his head.

The district court, in its de novo review, affirmed the referee’s finding of
dangerousness. At the district court hearing, Dr. Keller testified that a week

before his testimony, V.H. had another episode where he became upset and

frustrated, resulting in V.H. banging his head out of frustration over not receiving

a phone call. Dr. Keller testified about V.H.’s multiple reported instances of

headbanging in the past, sometimes resulting in injuries and bleeding. And V.H.

admitted in his own statement at the hearing that “sometimes” he bangs his

head.

The “overt act” must indicate “past aggressive behavior or threats” that
manifest “the probable commission of a dangerous act” by the respondent “that
 22

is likely to result in physical injury.” In re Foster, 426 N.W.2d at 378. Here, V.H.’s

headbanging falls into the category of aggressive behavior that did result in

physical injury. The district court’s factual findings are supported by substantial

evidence. We therefore affirm the district court’s commitment ruling.

IV. Disposition.

For these reasons, we affirm the district court’s rulings denying his motion

to represent himself and requiring his hospitalization within the IMCC.

AFFIRMED.