IN THE SUPREME COURT OF IOWA
SUPREME COURT NO. 15-2122
ELECTRONICALLY FILED
JUL 28, 2016
CLERK OF SUPREME COURT
IN RE THE DETENTION OF JEFFREY ANDERSON,
Appellant.
APPEAL FROM THE IOWA DISTRICT COURT
FOR POLK COUNTY
THE HONORABLE ARTHUR E. GAMBLE, DISTRICT JUDGE
APPELLEE’S FINAL BRIEF
THOMAS J. MILLER
Attorney General of Iowa
GRETCHEN KRAEMER
Assistant Attorney General
Hoover State Office Building, 2nd loor
Des Moines, Iowa 50319
(515) 281-6707
(515) 281-7219 (fax)
[email protected]
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
On the 28th day of July, 2016, the State served the Appellee’s Final
Brief on all other parties to this appeal via EDMS:
Amy Kepes
Assistant Public Defender
401 East Court Avenue, Suite 150
Des Moines, Iowa 50309
/s/ Gretchen Kraemer
Assistant Attorney General
Hoover State Office Bldg., 2nd Fl.
Des Moines, Iowa 50319
(515) 281-6707
[email protected]
i
TABLE OF CONTENTS
CERTIFICATE OF SERVICE ........................................................................ i
TABLE OF AUTHORITIES ......................................................................... iii
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW..................... 1
ROUTING STATEMENT .............................................................................. 3
STATEMENT OF THE CASE ....................................................................... 3
ARGUMENT ................................................................................................ 10
I.
WHETHER REVOKING RESPONDENT VIOLATES
DUE PROCESS........................................................................ 10
II.
WHETHER RESPONDENT’S REVOCATION PROPERLY
BALANCED HIS RIGHTS WITH COMMUNITY SAFETY . 15
III. WHETHER THE RIGHTS OF ANNUAL EVALUATION
AND ANNUAL REVIEW SUFFICIENTLY PROTECT
RESPONDENT’S DUE PROCESS RIGHTS........................... 16
CONCLUSION ............................................................................................ 19
REQUEST FOR ORAL SUBMISSION ....................................................... 20
CERTIFICATE OF COMPLIANCE ............................................................ 20
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Calvert v. State, 310 N.W.2d 185 (Iowa 1981) ......................................... 14
Duck Creek Tire Serv., Inc. v. Goodyear Corners, L.C., 796 N.W.2d
886 (Iowa 2011) ......................................................................................... 11
Feldhacker v. West, No. 12-2003, 2013 WL 3855694 (Iowa Ct.
App. July 24, 2013) ......................................................................... 12
Foucha v. Louisiana, 504 U.S. 71 (1992) ................................................. 14
Gagnon v. Scarpelli, 411 U.S. 778 (1973) ................................................. 13
In re: Detention of Barnes, 689 N.W.2d 45 (Iowa 2004) .......................... 16
In re Detention of Betsworth, 711 N.W.2d 280 (Iowa 2006) .................... 15
In re: Detention of Cubbage, 671 N.W.2d 442 (Iowa 2003) ................18, 19
In re: the Detention of Curtiss, 860 N.W.2d 893 (Iowa 2015) .................. 12
In re: Detention of Garren, 620 N.W.2d 275 (Iowa 2000) ........................ 10
In re: the Detention of Matlock, No. 13-2022, 860 N.W.2d 898
(Iowa 2015) .......................................................... 4, 10, 11, 13, 16, 17
Kramer v. Bd. of Adjustment for Sioux County, 795 N.W.2d 86
(Iowa Ct. App. 2010) ................................................................ 11, 12
Kruse v. Iowa Dist. Court for Howard Cty, 712 N.W.2d 695
(Iowa 2006) ...................................................................................... 15
Morrissey v. Brewer, 408 U.S. 471 (1972) ................................................ 13
Rheuport v. State, 238 N.W.2d 770 (Iowa 1976) ...................................... 14
iii
State v. Hughes, 200 N.W.2d 559 (Iowa 1972) ......................................... 14
State v. Kingery, 774 N.W.2d 309 (Iowa Ct. App. 2009) ........................ 15
State v. Spencer, 737 N.W.2d 124 (Iowa 2007) ....................................... 10
State v. Wade, 757 N.W.2d 618 (Iowa 2008) ........................................... 15
Veatch v. Bartels Lutheran Home, 804 N.W.2d 530 (Iowa Ct.
App. 2011) ...................................................................................... 11
Rule
Iowa R. App. P. 6.101(1)(b)....................................................................... 12
Iowa R. App. P. 6.1101(2) .......................................................................... 3
Iowa R. App. P. 6.903(1)(e) ...................................................................... 20
Iowa R. App. P. 6.903(1)(f) ....................................................................... 20
Iowa R. App. P. 6.903(1)(g)(1) .................................................................. 20
State Statutes
Iowa Code Ch. 229A ............................................................................ 10, 15
Iowa Code § 229A.8 .................................................................................. 18
Iowa Code § 229A.9B ................................................................................ 17
Iowa Code § 229A.9B(3) ........................................................................... 18
Iowa Code § 903B...................................................................................... 15
iv
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
I. WHETHER REVOKING RESPONDENT VIOLATES DUE
PROCESS.
Cases
In re: the Detention of Matlock, No. 13-2022, 860 N.W.2d 898 (Iowa 2015)
In re: Detention of Garren, 620 N.W.2d 275 (Iowa 2000)
State v. Spencer, 737 N.W.2d 124 (Iowa 2007)
Veatch v. Bartels Lutheran Home, 804 N.W.2d 530 (Iowa Ct. App. 2011)
Duck Creek Tire Serv., Inc. v. Goodyear Corners, L.C., 796 N.W.2d 886
(Iowa 2011)
Kramer v. Bd. of Adjustment for Sioux County, 795 N.W.2d 86 (Iowa Ct.
App. 2010)
Feldhacker v. West, No. 12-2003, 2013 WL 3855694 (Iowa Ct. App. July
24, 2013)
In re: the Detention of Curtiss, 860 N.W.2d 893 (Iowa 2015)
Morrissey v. Brewer, 408 U.S. 471 (1972)
Gagnon v. Scarpelli, 411 U.S. 778 (1973)
Foucha v. Louisiana, 504 U.S. 71 (1992)
State v. Hughes, 200 N.W.2d 559 (Iowa 1972)
Rheuport v. State, 238 N.W.2d 770 (Iowa 1976)
Calvert v. State, 310 N.W.2d 185 (Iowa 1981)
Kruse v. Iowa Dist. Court for Howard Cty, 712 N.W.2d 695 (Iowa 2006)
State v. Wade, 757 N.W.2d 618 (Iowa 2008)
1
State v. Kingery, 774 N.W.2d 309 (Iowa Ct. App. 2009)
Rule
Iowa R. App. P. 6.101(1)(b)
State Statutes
Iowa Code Ch. 229A
Iowa Code § 903B
II. WHETHER RESPONDENT’S REVOCATION PROPERLY
BALANCED HIS RIGHTS WITH COMMUNITY SAFETY.
Cases
In re Detention of Betsworth, 711 N.W.2d 280 (Iowa 2006)
In re: Detention of Barnes, 689 N.W.2d 45 (Iowa 2004)
State Statutes
Iowa Code Ch. 229A
III. WHETHER THE RIGHTS OF ANNUAL EVALUATION
AND ANNUAL REVIEW SUFFICIENTLY PROTECT
RESPONDENT’S DUE PROCESS RIGHTS.
Cases
In re: the Detention of Matlock, No. 13-2022, 860 N.W.2d 898 (Iowa 2015)
In re: Detention of Cubbage, 671 N.W.2d 442 (Iowa 2003)
State Statutes
Iowa Code § 229A.9B
Iowa Code § 229A.9B(3)
Iowa Code § 229A.8
2
ROUTING STATEMENT
This case involves a substantial issue of first impression and is
appropriate for retention by the Iowa Supreme Court under Iowa Rule of
Appellate Procedure 6.1101(2).
STATEMENT OF THE CASE
Nature of the Case & Course of Proceedings
Jeff Anderson was adjudicated a sexually violent predator on June 23,
2011. Following annual review trial, Anderson was placed in Release with
Supervision in May, 2016. The State moved to revoke his release with
supervision status after he had sex with a fellow resident of the correctional
facility. The court revoked Respondent’s Release with Supervision status
and placed him in the Transitional Release program. This appeal followed.
Facts
Jeff Anderson was committed as a Sexually Violent Predator on June
23, 2011. App. 1 (Eval). He received regular evaluations. Dr. Anna Salter
completed an evaluation on August 31, 2014. App. 1 (Eval). Following
initial review, Mr. Anderson was granted a final hearing. The matter was
tried to a jury in February, 2015. The jury found that the State did not prove
beyond a reasonable doubt that Respondent’s mental abnormality remains
such that he is likely to engage in predatory acts that constitute sexually
3
violent offenses if discharged. App. 33 (Civil Verdict). Confusing matters,
the Jury also found that the State proved Anderson was not suitable for
placement in the transitional release program. App. 33 (Civil Verdict). The
two findings are inconsistent. App. 37-38 (Feb. 19 Order).
The court issued an order February 19, 2015, concluding that because
the Jury found that Anderson is not suitable for the transitional release
program, “This means the State proved that Respondent’s mental
abnormality has not so changed that he is appropriate for transfer to a
transitional release program . . . .” App. 38 (Feb. 19 Order p. 5). The court
ordered further briefing and a hearing on what the verdict meant. App. 40
(Feb. 19 Order).
The court’s order of March 27 specifically discusses the jury’s verdict
and In re: the Detention of Matlock, No. 13-2022, 860 N.W.2d 898 (Iowa
2015). Although at trial Respondent argued that RWS was unconstitutional
(per the court’s Feb. 19 Order), by the March 27th order, “Respondent now
agrees that he should be released with supervision under a release plan
coordinated by DHS with the Fifth Judicial District Department of
Correctional Services, perhaps to include a period of supervision at the Fort
Des Moines Correctional Facility.” App. 43 (Mar. 27 Order).
4
DHS prepared a release plan consistent with the Court’s order. App.
45-55 (RWS Plan). Page 5, (2) “Individuals Mr. Anderson desires to spend
social time with need to be preapproved by the DCS Supervising Agency
with Jurisdiction as directed.
Should Mr. Anderson pursue a romantic
relationship, all pertinent and relevant information must be disclosed to the
DCS Supervising Agency with Jurisdiction prior to the onset of the
relationship.” App. 49-50 (RWS Plan p. 5-6). After a contested hearing, the
court approved the Release with Supervision plan as written. App. 56 (May
22 Order).
Mr. Anderson was transferred directly from court to the
residential correctional facility in Release with Supervision status.
On Friday night, October 16, 2015, the Fifth Judicial District filed a
Motion for Ex Parte Revocation because a fellow resident of the RCF
reported that Mr. Anderson had sexually assaulted him. App. 57 (Ex Parte
Motion). By Monday morning, DCS filed an Amended Motion noting that
although the initial allegations were sexual assault, “the other party changed
his story and admitted it was consensual. This conduct is a violation of the
RWS Plan.”
App. 59 (Amended Motion).
Mr. Anderson waived the
statutory requirement for a hearing within five days on October 21. App. 61
(Waiver). Mr. Anderson was revoked to CCUSO on October 22 pending the
outcome of the hearing. App. 62 (Revocation Order).
5
The matter was heard on November 16.
Mr. Anderson, through
counsel, stipulated that he violated a rule, that rule was having consensual
sexual contact with another resident of the Fort.
App. 70 (Trans. 3).
Respondent’s opening position was that “Mr. Anderson violated a rule and
there should be some appropriate measures to make sure that that doesn’t
happen again, but that he is still safe to be out in the community. And,
therefore, an appropriate remedy would be release with supervision with
further requirements.” App. 71 (Trans. 4). Mr. Anderson testified, “I broke
the rule of having consensual sex, without permission.” App. 73 (Tran. 6).
Mr. Anderson was 52 years old, his partner was 18 years old, young looking,
and the kind of person to whom Mr. Anderson was sexually attracted. App.
73-74 (Trans. 6-7).
Anderson and his partner pulled over and had consensual sex in the
back seat of Anderson’s car. App. ___ (Trans. 7). Mr. Anderson testified
that he knew he was supposed to bring up a desired relationship to his group
and ask permission to have a relationship. App. 74 (Trans. 9). Anderson
also admitted he knew it was a violation of his Release with Supervision
plan to have a relationship without prior approval. App. 74 (Trans. 9).
Mr. Anderson completed a “Thinking Report” on August 2, 2015,
where he described why it was inappropriate to pat a person on the shoulder
6
and later give the same person a fist bump. App. 75-76 (Trans. 10). In
Anderson’s handwriting, the report indicates “He falls into my victim pool
as being smaller and lower functioning. I was ignoring my red glad of
attraction by thinking I’m not on that sexually.” App. 76-77 (Trans. 11).
Mr. Anderson knew his supervising officers considered touching to be a
boundary violation. App. 76-77 (Trans. 11). Mr. Anderson was asked to
explain why he was safe to remain in the community given these repeated
bad choices about touching others. App. 77-78 (Trans. 12). His response
was that he learned from it and the same Relapse Prevention Plan should
apply. App. 78-79 (Trans. 13). Anderson explained “we knew that our age
gap was not the healthiest, as far as a meaningful sexual relationship.” App
81-82 (Trans. 29).
Anderson’s partner filed a police report about the incident, claiming
he was forced. App. 80 (Tran. 16). Then, the partner changed his story
claiming the incident was consensual. App. 59 (Amended Ex Parte Motion).
Dr. Tatman testified to his concerns about Mr. Anderson’s version of
events. He testified that the liaison involved planning. App. 83-84 (Trans.
35-36). Dr. Tatman explained the reason for the rule of no sex between coresidents at Fort Des Moines: “We don’t know if there’s bribery, if there’s
aggression, if there’s force, if there’s coercion.” App. 85 (Trans. 37). Dr.
7
Tatman was also concerned about Anderson’s description of the 18 year old
partner as the person who was in charge of the encounter.
Placing that much responsibility for the sexual behavior on somebody
else goes a hundred degrees the opposite way from what he has been
taught through all this treatment. Taking responsibility, taking
ownership for your behavior, and then having all the background of
treatment that he has had, three stints of treatment, two in prison and
one in CCUSO, and still placing that much responsibility on [his
partner] for the behavior.
App. 85 (Trans. 37).
Dr. Tatman was concerned that Mr. Anderson admitted breaking a
rule, but not the finer points of which rule was violated and why it was
important. “This violation is about sex and which is a big deal for someone
coming from CCUSO. That he’s already violating in a sexual way, with a
lot of manipulation and lying behind it for someone that’s been out six
months from CCUSO. It’s concerning.” App. 86 (Trans. 38). Dr. Tatman
believed Anderson’s behavior was part of his offending cycle. App. 86
(Trans. 38).
Dr. Tatman considers Mr. Anderson to be high risk. App. 87 (Trans.
39). “This new conduct isn’t new. This new conduct is a continuation of
existing stuff, continuation of existing deviant thinking, criminal thinking,
manipulation.” App. 88 (Trans. 40). Dr. Tatman testified that this new
behavior changes his risk from the time of the jury finding. App. 88 (Trans.
8
40). Dr. Tatman recommended that Mr. Anderson return to transitional
release, that he was not ready to be out in the community. App. 89-92
(Trans. 45-47).
The court revoked Respondent’s release with supervision status, but
rather than returning him to secure confinement, ordered him placed in the
Transitional Release Program.
App. 104 (Order).
The court found
Respondent violated the release with supervision plan by having sex without
prior approval and having sex with an inappropriate partner, one prohibited
by the rules governing Fort Des Moines. App. 106 (Order, p. 3). The court
made detailed credibility findings, including that Mr. Anderson was not
credible.
App. 97-103 (Trans. 118-124).
The court disbelieved his
testimony that the 18 year old partner was the instigator and that it took
Anderson by surprise. App. 106 (Order, p. 3). The court found Dr. Tatman
more credible than Dr. Wollert. App. 99 (Trans.120). In particular, the
court credited Dr. Tatman’s testimony that Anderson was manipulative and
that his behavior and the choice of an 18 year old partner are part of his
sexual offense cycle.
App. 106 (Order, p. 3).
The court credited Dr.
Tatman’s testimony that Mr. Anderson is at higher risk now than he was at
the conclusion of the jury proceeding. App. 107 (Order, p. 4). The court
found that Mr. Anderson needs the skills and treatment work available in the
9
Transitional Release program, and ordered him placed in TRP rather than
secure custody. App. 107 (Order, p. 4). A timely notice of appeal was filed.
App. 108 (NOA).
ARGUMENT
I. WHETHER REVOKING RESPONDENT VIOLATES DUE
PROCESS.
Following initial commitment and until discharge, the reviewing court
has authority over varying placement decisions.
The court may order
Respondent placed in secure confinement, transitional release, or release
with supervision. There are different criteria for each decision, but all are
placement decisions that can be made under the jurisdiction of the court
under Iowa Code chapter 229A. That Respondent is an SVP was proven at
initial commitment. The constitutionality of the Release with Supervision
program has been affirmed. In re Det. of Matlock, 860 N.W.2d 898 (Iowa
2015).
Standard of Review.
Constitutional challenges are reviewed de
novo. In re: Det. of Garren, 620 N.W.2d 275, 278 (Iowa 2000). Issues of
statutory interpretation are reviewed for corrections of error at law. State v.
Spencer, 737 N.W.2d 124, 128 (Iowa 2007).
Error Preservation. Error is not preserved. The jury’s verdict was
confusing. The district court held an entirely separate hearing on what the
10
verdict meant. In re: the Detention of Matlock, was specifically referenced
and discussed. Respondent dropped his constitutional challenge and agreed
to be placed in Release with Supervision. To the extent the Respondent now
argues he is a released person, that argument is foreclosed by his concession
to placement in Release with Supervision. In re: the Detention of Matlock
requires a mental abnormality.
Respondent concedes he has a mental
abnormality on page 15 of his brief.
As to the constitutional argument, error is also not preserved.
Respondent’s counsel did raise it in closing argument, but the court did not
rule on it from the bench. No briefing was requested or ordered. No
authority was provided beyond citation to the constitutions themselves.
App. 95 (Trans. 116).
“Error preservation rules exist to provide district courts an opportunity
to correct errors and to provide a record for appellate courts. Veatch v.
Bartels Lutheran Home, 804 N.W.2d 530, 533 (Iowa Ct. App. 2011). A
party ordinarily must raise an issue and the district court must rule on that
issue to ensure preservation for appellate review. Duck Creek Tire Serv.,
Inc. v. Goodyear Corners, L.C., 796 N.W.2d 886, 892 (Iowa 2011). Even if
a party properly raises an issue, if the district court fails to rule on it, the
party must file a motion requesting a ruling on the issue to preserve error.
11
Kramer v. Bd. of Adjustment for Sioux County, 795 N.W.2d 86, 93 (Iowa
Ct. App. 2010).” Feldhacker v. West, No. 12-2003, 2013 WL 3855694
(Iowa Ct. App. July 24, 2013) (unpublished).
Merits.
Mr. Anderson did not appeal the court’s order placing him in Release
with Supervision nor did he appeal the court’s order approving the release
with supervision plan. Because he elected not to appeal those orders –
indeed, he agreed on the record to be placed in release with supervision – he
has waived the argument that release with supervision is improper. In re: the
Detention of Curtiss, 860 N.W.2d 893, 897 (Iowa 2015) (“The time to
appeal his placement . . . was within thirty days after the court placed in in
transitional release within CCUSO, not after he violated the terms of the
conditions of his release.”); Iowa R. App. P. 6.101(1)(b) (requiring an appeal
to be filed within thirty days of the final order or judgment). The Supreme
Court in In re: the Detention of Curtiss, 860 N.W.2d at 897, addressed a
similar argument – that a person in release with supervision was “released”
and concluded that the person was not released if placed in Release with
Supervision, and revocation from Release with Supervision was permitted.
Respondent asserts it violates due process for him to be placed at
CCUSO following his rule violation in Release with Supervision absent a
12
court finding that he was more likely than not to reoffend.
Transitional
release is confinement – lesser restrictive confinement because of the
opportunity for community access – but it is confinement. Matlock advises
the
court
and
parties
to
separate
mental
abnormality
from
risk/dangerousness. So long as the Respondent has a mental abnormality,
the various placements are constitutionally permissible. 860 N.W.2d 898
(Iowa 2015). Respondent admitted he has a mental abnormality. It is the
assessment of risk that changed from the jury verdict several months before.
Respondent’s position would leave the Agency with Jurisdiction
without recourse to address rule violations. Without the ability to revoke
someone, Release with Supervision is unworkable. The statute permits the
Agency with Jurisdiction to seek court authority to increase the
restrictiveness of a placement. And the statute provides for due process.
There was a hearing.
Respondent had counsel, called witnesses, and
testified as to his version of events. Morrissey v. Brewer, 408 U.S. 471
(1972) (articulating process due to parolees); Gagnon v. Scarpelli, 411 U.S.
778 (1973) (articulating process due to probationers).
The State also
provided evidence – which the court found more credible – that
Respondent’s risk had increased since the time of the jury verdict. The
demonstration of continued poor judgment around personal boundaries and
13
sex were indicators of higher risk. The manipulation, deceit, and choice of
an inappropriate partner were indications of higher risk. The behaviors
mirrored his offense cycle, which made him higher risk. The court issued
written findings. The link between the violation of the unique release plan,
risk, and Respondent’s personal offense history led to the court placing him
in Transitional Release -- the nature of the commitment post-revocation
bears a reasonable relationship to the purpose for which the individual is
committed. Foucha v. Louisiana, 504 U.S. 71, 79 (1992).
Revocation of release with supervision is analytically similar to
revocation of probation or parole. A probationer can be revoked for being
charged with – but not convicted of – a new crime. State v. Hughes, 200
N.W.2d 559, 562 (Iowa 1972). The proof required to return someone to
confinement is lesser than the proof required to convict and confine him in
the first instance. Rheuport v. State, 238 N.W.2d 770, 772 (Iowa 1976). It’s
significant that confinement is permissible for a probation violation where
the initial sentence did not involve confinement. Revocation proceedings
can be informal, even summary, and the standard is preponderance of
evidence, even though the standard for the initial criminal conviction, and
initial SVP commitment, is beyond a reasonable doubt. Calvert v. State, 310
N.W.2d 185, 187 (Iowa 1981) (citing Hughes, 200 N.W.2d at 561-62). In
14
both Release with Supervision and probation/parole, the court retains
residual jurisdiction over the person. Kruse v. Iowa Dist. Court for Howard
Cty, 712 N.W.2d 695, 701 (Iowa 2006).
Release with supervision is similar to the extended parole
arrangements created by Iowa Code § 903B, which have been upheld by the
appellate Courts. See State v. Wade, 757 N.W.2d 618, 629 (Iowa 2008)
(upholding special sentence under 903B.2 and stating “the State has a strong
interest in protecting its citizens from sex crimes.”); State v. Kingery, 774
N.W.2d 309, 315 (Iowa Ct. App. 2009) (finding “there is a reasonable fit
between the State’s interest in protecting its citizens from sex crimes and the
extended supervision required under sections 903B.1 and .2.”)
II. WHETHER RESPONDENT’S REVOCATION PROPERLY
BALANCED HIS RIGHTS WITH COMMUNITY SAFETY.
Standard of Review. Sufficiency of the evidence and interpretation
of chapter 229A are reviewed for corrections of errors at law. In re Det. of
Betsworth, 711 N.W.2d 280, 283 (Iowa 2006).
Error Preservation. Error is preserved. The underlying proceeding
developed the contrary views: Respondent that he should be returned to the
community in release with supervision – lesson learned. And the State, that
Respondent’s risk had increased and he should be placed at CCUSO.
15
Merits. The majority of the hearing consisted of evidence going to
the remedy -- whether Mr. Anderson should remain in the community or
return to CCUSO. The court made particularized credibility findings, to
which considerable deference is granted. In re: Det. of Barnes, 689 N.W.2d
45, 457 (Iowa 2004).
The court credited Dr. Tatman’s testimony that
Respondent was manipulative, deceitful, and that he was the instigator
behind the sexual encounter. The court further concluded that Respondent
should be placed in Transitional Release, rather than in secure custody as the
State requested. In doing so, the court balanced Mr. Anderson’s rights with
the risk to the community. There is sufficient evidence in the record to
uphold the district court’s conclusion.
III. WHETHER THE RIGHTS OF ANNUAL EVALUATION
AND ANNUAL REVIEW SUFFICIENTLY PROTECT
RESPONDENT’S DUE PROCESS RIGHTS.
Standard of Review.
Respondent’s constitutional challenge is reviewed de novo. In re: Det. of
Matlock, 860 N.W.2d 898, 901-02 (Iowa 2015).
Error Preservation.
Error is not preserved for the same reasons it was not preserved in the
first constitutional argument. The jury’s verdict was confusing. Respondent
dropped his constitutional challenge and agreed to be placed in Release with
16
Supervision. To the extent the Respondent now argues he is a released
person, that argument is foreclosed by his concession to placement in
Release with Supervision. In re: the Detention of Matlock requires a mental
abnormality. Respondent concedes he has a mental abnormality on page 15
of his brief.
As to the constitutional argument, error is also not preserved.
Respondent’s counsel did raise it in closing argument, but the court did not
rule on it. No briefing was requested or ordered. No authority was provided
beyond citation to the constitutions themselves. App. 95 (Trans. 116).
Merits.
Respondent suggests that to be returned to secure custody from
Release with Supervision on a revocation, the State must prove Respondent
is more likely than not to commit a sexually violent offense.
requirement is not in the statute.
This
The statute requires proof of a rule
violation, and then leaves to the court’s discretion where to place the
Respondent.
Respondent’s theory would be completely unworkable in practice.
The revocation section, Iowa Code § 229A.9B, permits an ex parte removal.
This is significant and important in the ability to immediately remove a
person from the community who is engaging in risky behaviors – like
17
making poor sexual choices. The revocation statute requires that the hearing
be within five days of the revocation request.
Iowa Code § 229A.9B(3).
The evaluations under Iowa Code § 229A.8 are extensive; it is not feasible
to complete these evaluations on an emergency basis and have them
prepared for court within the five day window.
The statute does not
explain, if Respondent is correct, if original commitment proceedings must
begin anew, or where in the proceedings this process should start.
It is not necessary to invent a process unspecified in statute to meet a
requirement also unspecified in statute. The annual evaluation process still
applies.
Iowa Code § 229A.8.
Mr. Anderson will receive an annual
evaluation within one year of being returned to CCUO. The court specified
so in its order. Mr. Anderson, like all CCUSO patients, retains his due
process protections of annual evaluation and annual review hearing.
Anderson’s conduct that resulted in the revocation will be evaluated in full,
along with other relevant factors.
Respondent has not identified what fundamental right he believes is at
issue with his final due process argument. “In the absence of a fundamental
right, ‘substantive due process demands, at the most, that there be a
reasonable fit between the governmental purpose and the means chosen to
advance that purpose.’” In re: Detention of Cubbage, 671 N.W.2d 442, 448
18
(Iowa 2003).
There is a reasonable fit between the State’s purpose of
protecting society from persons who have been committed as SVPs, and
while on release, have violated rules of Release with Supervision, and the
discretion granted to the district court on where to place the individual
pending the next annual review.
It addresses the immediate problem of
rejection of supervision and risk, and affords the patient the due process
protections established in the annual evaluation and review.
CONCLUSION
Following a confusing jury verdict, Respondent agreed to be placed
on Release with Supervision. He agreed, dropping a constitutional challenge
in the process. Respondent concedes he has a mental abnormality. In so
conceding, and in agreeing to be placed on Release with Supervision,
Respondent has waived the pertinent constitutional challenge he tries to raise
now. Respondent, fifty two year old Respondent, had sex with an 18 year
old – a fellow resident of Fort Des Moines. Respondent admits he did this –
that he had sex, that it was against the rules, and that he knew it was against
the rules. Sex between residents is against the rules because it’s too difficult
to determine whether there has been coercion or bargaining. The district
court found Respondent not credible and Dr. Tatman credible. Dr. Tatman
testified that the incident involved manipulation, deceit, and was part of Mr.
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Anderson’s sexual offense cycle. The district court, in its discretion, ordered
Mr. Anderson to Transitional Release, within the CCUSO program.
REQUEST FOR ORAL SUBMISSION
Brief oral argument is requested.
Respectfully submitted,
THOMAS J. MILLER
Attorney General of Iowa
/s/ Gretchen Kraemer
Assistant Attorney General
Hoover State Office Bldg., 2nd Fl.
Des Moines, Iowa 50319
(515) 281-6707
[email protected]
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Iowa R. App.
P. 6.903(1)(g)(1) or (2) because:
This brief contains 4,632 words total.
This brief complies with the typeface requirements of Iowa R. App. P.
6.903(1)(e) and the type-style requirements of Iowa R. App. P. 6.903(1)(f)
because: This brief has been prepared in a proportionally spaced typeface
using Microsoft Word 2010 in Times New Roman font, size 14.
Dated: July 28, 2016
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/s/ Gretchen Kraemer
Assistant Attorney General
Hoover State Office Bldg., 2nd Fl.
Des Moines, Iowa 50319
(515) 281-6707
[email protected]
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