IN RE THE DETENTION OF JEFFREY ANDERSON, JEFFREY ANDERSON, Appellant.
from the Iowa District Court for Polk County, Arthur E.
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.
Michael H. Adams, Local Public Defender, and Amy Kepes,
Assistant Public Defender, for appellant.
J. Miller, Attorney General, and Gretchen Kraemer, Assistant
Attorney General, for appellee.
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.
Background Facts and Proceedings.
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- 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.
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.
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.
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: . . .
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 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 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.
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.
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 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.
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
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.
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 Moines facility without permission,
which was against the rules of the facility and in violation
of his release-with-supervision plan.
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
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.
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.
Standard of Review.
review of constitutional claims is de novo. In re Det. of
Matlock, 860 N.W.2d 898');">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
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 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
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
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).
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 court and urged on appeal, that can support the
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
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.
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.
Substantive Due Process.
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- 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
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.
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 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.
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.
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, ...