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In re Detention of Anderson

Supreme Court of Iowa

May 12, 2017

IN RE THE DETENTION OF JEFFREY ANDERSON, JEFFREY ANDERSON, Appellant.

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

         The district court revoked the release-with-supervision status of a person committed under the Sexually Violent Predators Act. The committed person now argues the revocation of his release-with-supervision status and his placement in the transitional release program violates due process.

          Michael H. Adams, Local Public Defender, and Amy Kepes, Assistant Public Defender, for appellant.

          Thomas J. Miller, Attorney General, and Gretchen Kraemer, Assistant Attorney General, for appellee.

          ZAGER, Justice.

         Jeffrey Anderson was civilly committed to the Civil Commitment Unit for Sexual Offenders (CCUSO) under the Sexually Violent Predators Act (SVPA). He was later granted release with supervision to the Fort Des Moines Residential Facility. After he violated the terms of his release-with-supervision plan, the district court revoked his release-with-supervision status and ordered him placed at the transitional release program housed at CCUSO. Anderson now challenges the district court order placing him in the transitional release program at CCUSO as a violation of his rights under the Due Process Clauses of the United States Constitution and the Iowa Constitution. For the reasons stated below, we hold that the district court order placing Anderson in the transitional release program at CCUSO did not violate due process.

         I. Background Facts and Proceedings.

         On June 23, 2011, a jury determined that Jeffrey Anderson is a sexually violent predator (SVP) under Iowa Code chapter 229A. See Iowa Code § 229A.7(5) (2011). Between 1977 and 1994, Anderson sexually assaulted or attempted to sexually assault six different girls and women. In 1977, at the age of fourteen, Anderson attempted to sexually assault a nine-year-old girl. He received probation. In March 1982, at the age of nineteen, he was charged with assault with intent to commit sexual abuse for choking and raping a college-aged woman. In April 1982, Anderson was charged with sexual abuse in the second degree for the attempted rape of a female acquaintance. He pled guilty to one count of assault with intent to commit sexual abuse for the two 1982 charges and was given a sentence of two years' incarceration. During this incarceration, he completed the Iowa Sex Offender Treatment Program (SOTP). In 1983, at the age of twenty, Anderson raped a twenty-one- year-old physically handicapped woman. He pled guilty to sexual abuse in the third degree and was sentenced to a ten-year term of incarceration. He again completed the SOTP while incarcerated. In 1993, at the age of thirty, Anderson was charged with kidnapping and sexual abuse in the second degree for sexually assaulting a twenty-one-year-old female acquaintance. He was convicted of simple assault. In 1994, at the age of thirty-one, he was charged with burglary in the first degree, assault with intent to commit sexual abuse, and sexual abuse in the third degree after he went to the home of a coworker and raped her in front of her son. He was found guilty of all three counts and sentenced to thirty-five years' incarceration. Anderson participated in SOTP twice during this incarceration, but never completed the program. He was removed from the program on his first attempt because his account of the sexual assaults differed from the official records. He was removed from the program on his second attempt for refusal to participate.

         Adjudicating Anderson as an SVP means the jury determined, beyond a reasonable doubt, that Anderson suffered from a mental abnormality which made him likely to engage in predatory acts constituting sexually violent offenses. See id. § 229A.2(11) (now .2A(12)). Anderson was committed to the custody of the director of the Iowa Department of Human Services (DHS) for control, care, and treatment until such time as his mental abnormality has so changed that he is safe to be placed in a transitional release program or discharged. Id. § 229A.7(5)(b). While he was under the control, care, and treatment of DHS, he was placed at its secure facility in CCUSO. During treatment, Anderson admitted to numerous other sexual assaults. Anderson has been diagnosed with personality disorder not otherwise specified (non-consent) and antisocial personality disorder.

         After an annual review on November 13, 2014, Anderson submitted a report from Dr. Richard Wollert. In the report, Dr. Wollert opined that Anderson was no longer likely to engage in sexually predatory acts constituting sexually violent offenses if he were given the chance to be released from CCUSO. Dr. Wollert further opined that Anderson was a suitable candidate for the transitional release program at CCUSO. Based upon this report, Anderson requested a final hearing. After considering all of the evidence presented, the district court set the matter for a final hearing.

         Trial on whether Anderson's commitment should continue commenced on February 11, 2015. The jury returned a verdict two days later with the following answers:

Question No. 1: Did the State prove by evidence beyond a reasonable doubt that Respondent's mental abnormality remains such that he is likely to engage in predatory acts that constitute sexually violent offenses if discharged? ANSWER: . . . No.
Question No. 2: Did the State prove by evidence beyond a reasonable doubt that Respondent is not suitable for placement in a transitional release program? ANSWER: . . . Yes.

         Because the parties considered the jury's answers to be inconsistent, the district court ordered further briefing. The district court set a hearing for March 12 to determine the meaning of the verdicts and to answer the constitutional issues raised. The district court conducted the hearing on March 20 and issued its order on March 27. The district court held that it was in the best interest of the community for Anderson to be released with supervision before being discharged from CCUSO. The district court further found that the State proved release with supervision would help Anderson safely reenter society. The district court noted, "[T]he Respondent now agrees that he should be released with supervision under a release plan coordinated by DHS and the Fifth Judicial District Department of Correctional Services." The district court also ordered,

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

         DHS, in coordination with the Iowa Department of Correctional Services (DCS), filed the release-with-supervision plan on May 19, and the district court held a hearing on the plan on May 22. Without objection by Anderson, the district court approved the release-with-supervision plan as written and ordered the sheriff to transport Anderson to the Fort Des Moines Residential Facility. Anderson was placed under the supervision of the Fifth Judicial District DCS. Pursuant to Anderson's release plan, he was not allowed to have sexual contact with another person without permission while he was living at the Fort Des Moines facility. The terms of his release-with-supervision plan required him to disclose "all pertinent and relevant information" about any potential romantic relationship to DCS for approval. Additionally, the Fort Des Moines facility has its own rules and regulations that Anderson was required to comply with. One such rule prohibits residents of the facility from engaging in sexual contact with another resident.

         On October 16, another resident of the Fort Des Moines facility, T.B., reported that Anderson sexually assaulted him while Anderson was driving him to work. T.B. reported that Anderson asked him if he needed a ride and he accepted. While they were driving, the two made small talk and Anderson told T.B. that he is homosexual. Anderson then pulled into a parking lot. T.B. asked Anderson why they were stopping, and Anderson did not respond. Anderson told T.B. he was pretty and then started to undo his pants. T.B. tried to push Anderson off, but Anderson pinned him down and began to perform oral sex. T.B. reported that he was initially too scared to move but was eventually able to push Anderson off of him. T.B. left the car and jogged across the street to get away from Anderson. After T.B. left, he approached an off-duty police officer who was working as a security guard at the DART Central Station. T.B. called his counselor at the Fort Des Moines facility to report the incident. T.B. then made a police report with the officer.

         When confronted, Anderson claimed the sexual activity was consensual and that T.B. initiated the contact. However, based on the police report filed regarding the incident and incident reports obtained from the Fort Des Moines facility, the State filed a motion for ex parte revocation alleging that Anderson had violated the terms of his release-with-supervision plan.

         T.B. later recanted and said the sexual contact was consensual. On October 19, the State filed an amended motion to include the information that T.B. had recanted his claim that the sexual contact was nonconsensual. However, the conduct was still in violation of Anderson's release-with-supervision plan and the rules and regulations of the Fort Des Moines facility. On October 22, the district court filed an order commanding the sheriff to transport Anderson to the secure custody of CCUSO pending a hearing.

         On November 16, the district court held a hearing on the motion to revoke Anderson's release-with-supervision status. Anderson stipulated that he had sex with an eighteen-year-old resident of the Fort Des Moines facility without permission, which was against the rules of the facility and in violation of his release-with-supervision plan.

         Anderson testified as to his version of the incident. Anderson testified that the sexual encounter occurred while he was on his way to work. Anderson picked T.B. up away from the facility. While driving, Anderson and T.B. started discussing their age difference. At the time, Anderson was fifty-two and T.B. was eighteen. Anderson testified that T.B. began "hitting on" him, and he was surprised because of their age difference. He further testified that T.B. was the initiator of the sexual contact. According to Anderson, T.B. suggested Anderson pull the car over. According to Anderson, he then entered the backseat and engaged in sexual activity with T.B. at T.B.'s request. The district court found Anderson's version of the encounter not credible. It likewise found Dr. Wollert's testimony less credible because Dr. Wollert believed Anderson's version of events.

         Dr. Tony Tatman also testified at the hearing. Dr. Tatman testified about the sexual contact and how it related to Anderson's cycle of offending. Dr. Tatman testified that Anderson's placement of all the responsibility of the sexual encounter on the eighteen-year-old T.B. was consistent with Anderson's manipulative behavior. Dr. Tatman also testified that the encounter, which took place outside the facility, demonstrated advance planning. Dr. Tatman further testified that Anderson's choice in a sexual partner was consistent with his offending cycle. Dr. Tatman opined that the sexual encounter seemed at odds with a mutually consensual act, even though T.B. later recanted. Dr. Tatman testified that following the sexual encounter, T.B. immediately left the vehicle, obtained access to a phone, and reported the assault both to his facility counselor and directly to the police.

         On November 18, the district court issued its order revoking Anderson's release-with-supervision status. It found that Anderson violated a provision of his release-with-supervision plan by having sex without prior approval from his counselor at the Fort Des Moines facility and by having sex with an inappropriate partner. The district court made credibility findings and found credible Dr. Tatman's testimony that Anderson was at a higher risk after the violation than at the time of the jury proceeding. However, the district court also noted that Dr. Tatman could not say whether Anderson was more likely than not to reoffend. The district court revoked Anderson's release-with-supervision status and ordered him to be placed in the transitional release program, which is located at CCUSO. Anderson timely appealed the district court order. We retained the appeal.

         II. Standard of Review.

         Our review of constitutional claims is de novo. In re Det. of Matlock, 860 N.W.2d 898');">860 N.W.2d 898, 901 (Iowa 2015). To the extent Anderson's claims require us to interpret provisions of our SVPA, we review the district court's construction and interpretation of the statute for correction of errors at law. In re Det. of Cubbage, 671 N.W.2d 442, 444 (Iowa 2003).

         III. Analysis.

         A. Error Preservation.

         The State argues Anderson did not preserve error on his claim that revoking his release-with-supervision status and placing him in the transitional release program at CCUSO violates due process. The State claims that error was not preserved because the district court did not rule on the constitutional issue from the bench, and Anderson did not provide authority for the argument beyond citation to the constitutions. Anderson responds that error was preserved because the argument was raised to the district court during the hearing, and the district court's ruling overruled the argument even though it did not expressly address the constitutional claim.

         Our general rule of error preservation is that we will not decide an issue presented before us on appeal that was not presented to the district court. See, e.g., City of Postville v. Upper Explorerland Reg'l Planning Comm'n, 834 N.W.2d 1, 8 (Iowa 2013). In order for error to be preserved, the issue must be both raised and decided by the district court. Bank of Am., N.A. v. Schulte, 843 N.W.2d 876, 883 (Iowa 2014).

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

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (quoting Yee v. City of Escondido, 503 U.S. 519, 538, 112 S.Ct. 1522, 1534 (1992)). The underlying requirement of error preservation is to give opposing counsel notice of the argument and opportunity to be heard on the issue. Lee v. State, 815 N.W.2d 731, 739 (Iowa 2012). However, our error preservation rules were not designed to be hypertechnical. Griffin Pipe Prods. Co. v. Bd. of Review, 789 N.W.2d 769, 772 (Iowa 2010).

         Similarly, it is a fundamental principle of our appellate review that "we assume the district court rejected each defense to a claim on its merits, even though the district court did not address each defense in its ruling." Meier, 641 N.W.2d at 539. When we review a district court's ruling,

[w]e first examine the basis upon which the trial court rendered its decision, affirming on that ground if possible. If we disagree with the basis for the court's ruling, we may still affirm if there is an alternative ground, raised in the district court and urged on appeal, that can support the court's decision.

Hawkeye Food Distrib., Inc. v. Iowa Educators Corp., 812 N.W.2d 600, 609 (Iowa 2012) (quoting Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811-12 (Iowa 2000) (citation omitted)). We have applied this rule to both affirm and reverse a district court's ruling. Id. at 609-10.

         During the hearing to determine whether revocation of Anderson's release-with-supervision status was appropriate, Anderson's attorney argued that not allowing him to continue with release with supervision "would be a violation of Mr. Anderson's liberty interest and due process under both the U.S. Constitution, the Fourteenth Amendment, and the Iowa Constitution, Article 1, Section 9." While counsel conceded that release with supervision was appropriate, she noted that the district court's ruling on Anderson's status needed to comport with the Constitution. Counsel further argued the State had not demonstrated that Anderson was more likely than not to reoffend and that this was the standard necessary to order him back to CCUSO.

         The district court's order revoking Anderson's release-with-supervision status did not address any of the constitutional arguments. Anderson never filed a motion requesting the district court rule on the constitutional issues. However, the issue of constitutionality was raised throughout the proceedings. Opposing counsel had sufficient notice that the constitutionality of Anderson's revocation of release-with-supervision status would be an issue on appeal. Error was preserved.

         B. Substantive Due Process.

         Anderson argues that the district court's decision to revoke his release-with-supervision status and place him in the transitional release program at CCUSO violates his right to due process under both the United States Constitution and the Iowa Constitution. He argues that the revocation of his release-with- supervision status and placement in the transitional release program violates substantive due process for two reasons: (1) there was no finding that he was more likely to sexually reoffend, and (2) the conditions imposed do not balance the interest of the community against his liberty interest. The State responds that the statute does not require the district court to find Anderson is more likely to reoffend in order to transfer him to the transitional release program after he had been released with supervision. The State further argues that substantive due process has been satisfied by the statute because there is a reasonable relationship between the State's objective of protecting society and the district court's discretion to determine where an individual who has violated the terms of release with supervision should be placed pending the next annual review.

         The Due Process Clause of the United States Constitution provides that a state may not "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. Similarly, the Iowa Constitution provides that "no person shall be deprived of life, liberty, or property, without due process of law." Iowa Const. art. I, § 9.

         Traditionally, we have "considered the federal and state due process provisions to be equal in scope, import, and purpose." Matlock, 860 N.W.2d at 903 (quoting In re Det. of Garren, 620 N.W.2d 275, 284 (Iowa 2000)). We reserve the right to construe our state constitution differently from the United States Constitution. Id. This is true even when the two provisions "contain nearly identical language and appear to have the same scope, import, and purpose." Id.; see also State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013). When a party does not suggest a framework for analyzing the Iowa Constitution that is different from the framework utilized under the United States Constitution, we apply the general federal framework. Matlock, 860 N.W.2d at 903. However, we reserve the right to apply the federal framework in a different manner. Id.

         When a substantive due process violation is alleged, we follow a two-step analysis. King v. State, 818 N.W.2d 1, 31 (Iowa 2012). The first step is to determine the nature of the right involved and the second is to determine the appropriate level of scrutiny to apply. Id. If the right is a fundamental right, we apply strict scrutiny. Id. For other rights, we apply a rational basis test. Id. The core of the Due Process Clause is an individual's right to be free from bodily restraint caused by arbitrary actions by the government. Matlock, 860 N.W.2d at 903; see Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1785, (1992). This liberty interest is not absolute. Garren, 620 N.W.2d at 284.

         We have previously addressed a number of substantive due process questions in the context of our SVPA. In Garren, a committed person challenged the SVPA, arguing that the committal process violated his substantive due process rights because it did not allow the court to consider a less restrictive alternative to placing him at CCUSO. Id. at 284-85. We addressed the United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072 (1997). Id. at 279. In Hendricks, the Court held that Kansas's civil commitment statutes were civil in nature and therefore did not trigger the same constitutional protections afforded criminal defendants. 521 U.S. at 361, 117 S.Ct. at 2082. The Court also held that a finding of dangerousness, ...


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