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Bonilla v. Iowa Board of Parole

Supreme Court of Iowa

June 28, 2019

JULIO BONILLA, Appellant,
v.
IOWA BOARD OF PAROLE, Appellee.

          Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

         Julio Bonilla appeals dismissal of his petition for judicial review.

          Rita Bettis Austen of ACLU of Iowa Foundation, Des Moines, Steven Macpherson Watt of ACLU Foundation, New York, New York, Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, and Gordon E. Allen, Johnston, for appellant.

          Thomas J. Miller, Attorney General, and John R. Lundquist, Assistant Attorney General, for appellee.

          Brent Michael Pattison of Drake Legal Clinic, Des Moines, Marsha L. Levick of Juvenile Law Center, Philadelphia, Pennsylvania, and Benjamin G. Bradshaw, Kimberly Cullen, and Kendall N. Collins of O'Melveny & Myers, LLP, Washington, D.C., for amicus curiae Juvenile Law Center.

          John S. Allen and Bram T.B. Elias of University of Iowa College of Law Clinical Law Programs, Iowa City, and Sarah French Russell of Quinnipiac University School of Law Legal Clinic, Hamden, Connecticut, for amici curiae Juvenile Sentencing Project and Campaign for the Fair Sentencing of Youth.

          APPEL, JUSTICE.

         In this case, Julio Bonilla, the petitioner, convicted of kidnapping for an act committed when he was sixteen years old, brought a petition for judicial review in district court pursuant to the Iowa Administrative Procedures Act, Iowa Code section 17A.19 (2016), challenging the manner in which the Iowa Parole Board (Board) considers whether persons convicted of offenses while a juvenile should be granted parole.

         Specifically, Bonilla sought a declaratory judgment that a variety of substantive and procedural rights are required when a juvenile offender is considered for parole under article I, sections 9 (due process), 10 (right to counsel), and 17 (cruel and unusual punishment) of the Iowa Constitution and the Eighth Amendment (cruel and unusual punishment) and the Fourteenth Amendment (due process) to the Federal Constitution. In addition, Bonilla sought an order remanding the matter back to the Board and requiring it to provide him with the procedural rights requested in his petition. Bonilla further sought attorney fees and costs.

         The Board moved to dismiss the petition. The district court denied the motion to dismiss. The district court later proceeded to rule in favor of the Board on the merits. Bonilla appeals. For the reasons expressed below, we affirm.

         I. Factual and Procedural Background.

         In 2005, Bonilla was convicted of kidnapping in the first degree. His criminal conviction arose from a New Year's Eve abduction of a pregnant sixteen-year-old girl who was grabbed off the street while she walked home, thrown into Bonilla's vehicle, and, over a four-hour period, hit, slapped, hair-pulled, bitten on the face and neck, and raped. After four or five hours, the victim was ultimately thrown out of the vehicle without her shoes or underwear, with the shout "Happy New Year."

         Bonilla was sixteen years old when he committed the crime. He was sentenced to life in prison without the possibility of parole (LWOP). In 2005, Bonilla began serving his prison sentence at Anamosa State Penitentiary. In 2008, Bonilla was transferred to Fort Madison after twice fighting other inmates in gang-related incidents.

         Following the elimination of LWOP for juvenile nonhomicide offenders by the United States Supreme Court in Graham v. Florida, 560 U.S. 48, 74-75, 130 S.Ct. 2011, 2030 (2010), and after this court held that the principles of Graham apply retroactively to Bonilla, Bonilla v. State, 791 N.W.2d 697');">791 N.W.2d 697, 700-01 (Iowa 2010), he was resentenced on April 29, 2011 by the district court to life with the possibility of parole. The district court, however, wrote a letter to the Board that stated,

I am also enclosing for your review my Findings of Fact, Conclusions of Law and Ruling entered on February 25, 2005. I would strongly suggest that you carefully review the Findings of Fact set forth in my ruling paying special attention to what this defendant and his friends suffered this victim to endure for approximately 4-5 hours.
After reviewing the matters I have discussed above I am sure you will understand why I am recommending that under no circumstances should [Bonilla] be considered for any type of early release or parole.

After his resentencing in 2011, and beginning in 2012, Bonilla began to receive annual parole reviews by the Board.

         According to Bonilla's disciplinary summary, he received additional disciplinary reports after we ordered resentencing in 2010. Bonilla received additional major reports, including reports for possession of cocaine, possession of a "hit" note, [1] possession of pornography, bartering goods, possession of marijuana, STG (security threat group) show of force, and running a gambling ring. Since 2014, however, Bonilla has not received a new major report. He began to receive glowing accounts of his activities in prison.

         At his annual review on June 24, 2015, Bonilla was denied parole as in previous years. Among other things, the Board noted,

Your record of major or minor reports suggests you are not prepared for a successful return to the community. The Board of Parole needs to see a period of behavior which is free from institutional reports prior to considering you for an early release.

         As Bonilla approached his annual review date in June of 2016, the Board prepared a release plan for Bonilla. The release plan noted that his recent adjustment had been outstanding. The release plan recommended that Bonilla complete the Sex Offender Treatment Program (SOTP) and the Thinking for Change program (TFC), along with a significant period of gradual release, prior to being paroled. The release plan noted that a psychiatric examination had occurred on April 25, 2016, which revealed nothing notable.

         As his 2016 annual review date approached, Bonilla filed nine motions in connection with his annual review. In the motions, Bonilla sought (i) appointment of counsel at state expense, (ii) provision of an independent psychological evaluation at state expense, (iii) an in-person parole review hearing and interview, (iv) an opportunity to present evidence at the parole hearing, (v) access to information related to his parole review and a right to challenge the information, (vi) exclusion of all nonverifiable evidence, (vii) proper consideration of mitigation factors of youth, (viii) access to rehabilitative treatment and programming, and (ix) establishment of procedures in the event of denial of parole.

         The Board's counsel responded to Bonilla's motions on June 22. The Board's counsel informed Bonilla that the Board agreed to continue his annual review until July 28. The Board's counsel noted there was no motion practice in connection with annual reviews and the Board would log the filings as correspondence in support of release. The Board's counsel also stated, "I consider the constitutional issues raised in those motion[s] to have been presented to the Board for exhaustion purposes."

         On July 13, the Board produced "copies of records pertaining to Julio Bonilla . . . that are available to the Iowa Board of Parole for use in its review of Mr. Bonilla for parole release." The records produced included prison disciplinary rulings, other notes related to Bonilla's conduct in prison, parole release plans, and psychological and psychiatric evaluations. The Board declined to produce "any victim statement" and Bonilla's presentence investigation report.

         In addition to the document disclosure, the Board permitted counsel for Bonilla to provide a written statement in support of his request for release. The Board further allowed counsel to appear in person at the 2016 review annual review.

         Bonilla's annual review occurred on July 28. It lasted about thirty minutes and was transcribed. Bonilla's counsel directed the Board's attention to her client's rehabilitative progress. She stated that Bonilla would benefit from SOTP and TFC. She added that Bonilla, a native of El Salvador, was in a unique position because the immigration authorities had a detainer on him, and that upon his release, he would be transferred from custody and removed from the United States "pretty quickly."

         After Bonilla's counsel's presentation, the members of the Board spoke about Bonilla. Three Board members recognized that Bonilla had shown some great improvement over the past year and a half. Board members also agreed that he could benefit from SOTP and TFC. But Board members expressed concern about Bonilla's high security level at the Iowa State Penitentiary in Fort Madison. The chair of the Board contrasted Bonilla with other juvenile offenders convicted of class "A" felonies, noting, "The big difference between them and Mr. Bonilla is quite frankly that institutional disciplinary record. Those individuals did not have as lengthy of an institutional disciplinary record in the immediate past as Mr. Bonilla has."

         At the conclusion of the review, the Board voted to deny Bonilla parole. The chair declared that they would "like to see him complete treatment" and "continued good behavior." A formal written denial followed the same day.

         On August 24, the Board issued the following ruling concerning Bonilla's nine motions:

Offender Bonilla has appealed the Board's refusal to rule upon the "motions" Attorney Angela L. Campbell filed on his behalf on June 17, 2016. The Board's parole eligibility reviews are not adversarial proceedings and the Board does not engage in motion practice during such reviews. No formal ruling is required nor will be made concerning these filings. Offender Bonilla's motions were logged by the Board as correspondence in support of release and were considered by the Board during its release deliberations.
. . . . Following the Board's public deliberations, Offender Bonilla was denied release (F-7). The Board sent Offender Bonilla written notice of the Board's denial ruling and its reasoning. Offender Bonilla did not appeal the Board's July 28, 2016 F-7 denial order.
Although Offender Bonilla may have originally questioned the validity of the Board's case file review procedures, he has not timely challenged the resulting denial decision. Accordingly, the procedural deficiencies Offender Bonilla complains of through the above-referenced filings have now been mooted through the Board's conduct of its June 28, 2016 case file review and/or his failure to appeal the Board's July 28, 2016 F-7 denial order.

         Bonilla filed a petition for judicial review on September 14, pursuant to Iowa Code section 17A.19. He challenged the Board's parole review practices and regulations as violating article I, sections 9, 10, and 17 of the Iowa Constitution and the Eighth and Fourteenth Amendments to the Federal Constitution.

         The Board filed a motion to dismiss on October 6. In the motion to dismiss, the Board argued that Bonilla had not alleged substantial rights were affected by any claimed error, and therefore any error was harmless. The Board emphasized that Bonilla unequivocally stated he was not challenging the outcome of any particular parole release decision conducted by the Board. The district court denied the motion to dismiss on January 5, 2017.

         Bonilla's next annual parole review took place on July 27, and was made part of the administrative record in this case. It lasted approximately twenty minutes and was transcribed. Bonilla's counsel was invited to attend but did not appear, apparently because of a scheduling conflict. At the outset of the review, the chair remarked,

As we're moving forward considering these cases, Board members, I do want to caution you as I always do to make sure that we are cognizant of the factors that we are to consider when looking at this special blend of cases that being these that we've deemed the juvenile lifers. Our Supreme Court has determined that life without parole is rare, or should be rare and uncommon, for those such as Mr. Bonilla who commit a class A offense as a juvenile. As the Board we should be looking toward an eventual release for these individuals. . . . Now when we're considering these individuals, I want you to look at-and you should be looking at-not as much the crime that they committed, other than to figure out where they've started, but what they've done since they've come to prison and how they've shown that they've been rehabilitated over the long term period of their incarceration . . . .

         The Board proceeded to discuss Bonilla. One member noted Bonilla had completed TFC but had not yet received SOTP, which he needed. There was recognition Bonilla is "moving in the right direction." Concern was expressed over Bonilla's history of major disciplinary reports in prison for activities that would be criminal even "on the outside." One Board member noted that "a lot of the criminal activity [in prison had occurred] after his twenty-fifth birthday." As he put it, "[W]e're looking at an individual here who's been really good over the last not quite three years . . . ." This member concluded, "[T]wenty-five percent of your prison time being good . . . isn't sufficient enough for me [to vote for release]." The Board again voted to deny parole.

         On August 2, the chair of the Board wrote the Warden of the Iowa State Penitentiary concerning the Board's decision to deny parole. The letter spoke about Bonilla's positive accomplishments in prison and added,

He has had no disciplinary reports since his last review but has a significant history of gang related and gambling reports spanning nearly ten years while incarcerated. For this reason, the Board needs to see a longer period of institutional adjustment before gradual release can be endorsed. This statement should not be construed as the Board forbidding movement. Any decision to move Bonilla from [the Iowa State Penitentiary] to a lower security level facility will be left to the discretion of the Department of Corrections . . . .
The Board requests that Bonilla complete the Sex Offender Treatment Program recommended by the Department, Life Skills and job training before he begins gradual release. Bonilla may be placed on the waiting lists for any and all programming for which he is classified. The Board is not requesting that he be given priority over others who are already on the applicable waiting lists. Completion of all recommended treatment programs does not mean Bonilla will be granted a release. Completion of treatment is only one of several factors considered by the Board. The Board may request programming not recommended by the Department.
The Board is encouraged by Bonilla's recent positive efforts and he is encouraged to continue to maintain a positive outlook and perspective while completing programming. Positive effort, behavior, and attitude [are] a significant indicator of an individual's future willingness and ability to be a law-abiding citizen.
In the Board's opinion, Bonilla has yet to demonstrate through his actions sufficient lasting rehabilitation and maturity to assure the Board there is a reasonable probability that he is willing and able to fulfill the obligation[s] for a law-abiding citizen. The Board voted unanimously to deny parole for one year. Bonilla will be reviewed again at his next annual.
A copy of this letter will be forwarded to Bonilla, but please feel free to share it with him[.]

         On March 14, 2018, the district court denied the petition for judicial review on the merits and dismissed the action. At the outset, the district court declined to disturb its prior ruling on the Board's motion to dismiss. Turning to the merits, the district court canvassed recent cases involving juvenile sentencing. The district court concluded that there was no reason to believe the Board would fail to follow the applicable law in considering parole. The district court recognized that in Greiman v. Hodges, 79 F.Supp.3d 933, 944-45 (S.D. Iowa 2015), a federal district court declined to grant a motion to dismiss filed by the Board challenging a failure to release the prisoner. The district court emphasized that the value of Greiman as precedent was reduced because the federal court had to assume the facts as pleaded were true-namely, that parole was denied solely as a result of the nature of the offense. See id. at 936.

         The district court also considered Diatchenko v. District Attorney, 27 N.E.3d 349 (Mass. 2015). In Diatchenko, the district court noted, the Massachusetts Supreme Judicial Court found a right to counsel, at state expense, under the Massachusetts Constitution for juveniles sentenced to life in prison for homicide offenses. Id. at 361. The district court concluded there was nothing in Iowa precedent to suggest a likelihood that the Iowa Supreme Court would come to a similar conclusion under the Iowa Constitution. Further, the district court concluded that in a parole determination, the mitigating attributions of youth are no longer the essential consideration. Instead, according to the district court, the offender's "actual behavior" is most pertinent. The district court concluded,

[T]here is no authority compelling the concluding that the matters requested in Bonilla's nine motions to the Board are constitutionally mandated and there is no basis on this record to conclude that the current statutory and regulatory parole system in Iowa, on its face, denies juvenile offenders a meaningful opportunity for release.

         The district court denied the petition for judicial review. Bonilla filed a timely appeal. We retained the appeal.

         II. Standard of Review.

         In attacking the action of the Board, Bonilla cited a number of provisions of the Iowa Administrative Procedures Act in his petition for judicial review before the district court. Constitutional issues raised in agency proceedings are reviewed de novo. Iowa Code § 17A.19(10)(a); Gartner v. Iowa Dep't of Pub. Health, 830 N.W.2d 335, 344 (Iowa 2013). We review the district court's ruling on a petition for judicial review for correction of errors at law with respect to challenges to interpretations of law not clearly vested in the agency, challenges to final agency action on procedural or process grounds, and claims that the agency did not consider a relevant and important matter. Iowa Code § 17A.19(10)(c), (d), (j); Greenwood Manor v. Iowa Dep't of Pub. Health, 641 N.W.2d 823, 830 (Iowa 2002). Bonilla also claims a violation of Iowa Code section 17A.19(10)(n), which provides for reversal of agency action in a contested case that is "arbitrary, capricious, or an abuse of discretion," which we also review for errors at law. Greenwood, 641 N.W.2d at 830.

         III. Preliminary Issues.

         A. Whether Bonilla Satisfies the Prejudice Requirement in Iowa Code Section 17A.19(8), (10).

         A person seeking judicial review of agency action under Iowa Code section 17A.19(10) must demonstrate prejudice from the agency action. Specifically, a court shall grant relief from agency action "if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is" invalid for any of fourteen enumerated reasons. Id. "The burden of demonstrating the required prejudice and the invalidity of agency action is on the party asserting invalidity." Id. § 17A.19(8)(a).

         The parties dispute whether the required showing of prejudice is a question of standing or analogous to a harmless error rule. The Board contends that the prejudice requirement is analogous to a harmless error rule. In contrast, Bonilla contends that the prejudice requirement is a question of standing. The district court adopted Bonilla's view.

         The Board is correct that the prejudice requirement is a harmless error rule. In our leading case on the prejudice requirement, we said,

[T]he "substantial rights" language of s 17A.19(8) has no bearing on a person or party's standing to obtain judicial review. It is, instead, merely a provision analogous to a harmless error rule. It is a direction to the court that an agency's action should not be tampered with unless the complaining party has in fact been harmed.

City of Des Moines v. Pub. Emp't Relations Bd., 275 N.W.2d 753, 759 (Iowa 1979).

         The question then becomes whether Bonilla can meet his burden to show prejudice. The Board argues he cannot. The Board first observes that Bonilla failed to appeal his parole denials. Building on that observation, the Board contends, "Bonilla necessarily concedes that the Board arrived at a correct result regardless of any deficient review procedures." Consequently, the Board says, Bonilla is unable to show prejudice.

         Bonilla counters that he "suffered and continues to suffer harm to his constitutional rights resulting from the Board's failure to consider and failure to provide the nine safeguards he sought during his parole review process." The failure to consider and provide the safeguards, Bonilla continues, "resulted in violations of his own and other parole-eligible juvenile offenders' constitutional right to a review process that afforded them a realistic and meaningful opportunity to be released on parole." Bonilla notes that a federal district court in Iowa denied a motion to dismiss similar claims. Greiman, 79 F.Supp.3d at 944-45. Bonilla also points to a decision of the Massachusetts Supreme Judicial Court considering constitutional due process claims not in the context of a parole denial. Diatchenko, 27 N.E.3d at 353-54.

         Our leading case on the prejudice requirement in section 17A.19 is City of Des Moines, 275 N.W.2d at 759. In this case, we reviewed a petition for declaratory order filed by the city with the Public Employment Relations Board (PERB). Id. at 755. The city asked PERB if, under a specified hypothetical fact pattern, the timetables and other aspects of the Public Employment Relations Act allowed PERB to consider a request for binding arbitration from an employee organization where the public employer does not join the request. Id. at 756. PERB issued a ruling adverse to the city, the city sought judicial review, the district court disagreed with PERB, PERB appealed, and we agreed with the district court. Id.

         Before reaching our ultimate conclusion in City of Des Moines, we considered the preliminary question on whether the city had standing. Id. at 759. We said it did because the city's position as a public employer demonstrated a specific personal and legal interest in the subject matter of the decision, while "the fact that it will be involved in future negotiations affected by the decision of [PERB] in this matter establishes that its interest has been specially and injuriously affected." Id.

         We then turned to the prejudice requirement in Iowa Code section 17A.19. Id. We said, "The city's future recurring involvement in contract negotiations also serves to meet this requirement." Id.

         We find Bonilla's argument persuasive in light of City of Des Moines. Like the city, Bonilla will have "future recurring involvement" in parole proceedings. See id. The agency actions challenged by both Bonilla and the city were denials of requested relief concerning the process for the future proceedings or negotiations. As such, City of Des Moines teaches, contrary to the Board's assertion, that Bonilla can show prejudice even though his petition is not based on appeal of the parole denial.

         Bonilla's argument for prejudice turns on his claim that he "suffered and continues to suffer harm to his constitutional rights" to due process. Might these constitutional harms be enough to show prejudice under section 17A.19? We think the answer is a clear yes. As a result, dismissal is not appropriate without analysis of the merits of the underlying constitutional claims.

         B. Whether Both Facial and As-Applied Challenges Are Before Us.

         A constitutional challenge may be facial or as-applied. See Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 231 (Iowa 2018). "A facial challenge is one in which no application of the statute could be constitutional under any set of facts." Id. But see Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175, 116 S.Ct. 1582, 1583 (1996) (mem.) (Stevens, J.) (explaining that the "no set of circumstances" test is inconsistent with the standard for deciding facial challenges and with a wide array of legal principles (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100 (1987))). By contrast, "an as-applied challenge alleges the statute is unconstitutional as applied to a particular set of facts." Honomichl, 914 N.W.2d at 231. We have joined other courts and commentators in recognizing that "[t]he distinction between the two types of challenges appears simple enough, yet it is unclear and 'more illusory than the ready familiarity of the terms suggests.'" Id. (quoting Gillian E. Metzger, Facial Challenges and Federalism, 105 Colum. L. Rev. 873, 880 (2005)); see Alex Kreit, Making Sense of Facial and As-Applied Challenges, 18 Wm. & Mary Bill Rts. J. 657, 658 (2010).

         The Board argues that only a facial challenge is presented for our review. The Board concedes that Bonilla exhausted administrative remedies and preserved error on his facial challenge. In any case, the Board notes, exhaustion of administrative remedies is not required where a petitioner is solely challenging the facial constitutional validity of a statute under which an agency is proceeding. See Tindal v. Norman, 427 N.W.2d 871, 872-73 (Iowa 1988).

         But, in a multipronged attack, the Board contends that Bonilla's as-applied challenges are not presented for our review. First, the Board says, "Timely exhaustion of the Board's administrative appeal process and specific presentation of an alleged error is required before a court acquires authority to hear that claim on judicial review." In support, the Board points to Ghost Player, L.L.C. v. State, 860 N.W.2d 323, 326 (Iowa 2015). The as-applied challenges are not before us, the Board continues, because Bonilla's administrative appeal only addressed the Board's failure to enter a ruling on his nine procedural motions and predated the 2016 parole denial. Further, the Board argues, "Bonilla has not appealed the Board's conduct of any specific parole review or the results thereof through the Board's administrative appeal process."

         Alternatively, the Board argues that Bonilla was required to move to expand the district court's ruling through an Iowa Rule of Civil Procedure 1.904(2) motion to preserve error on the as-applied claims. See Meier v. Senecaut, 641 N.W.2d 532, 537-39 (Iowa 2002). According to the Board, and quoting part of the district court's order, "[T]he District Court's ruling was limited solely to answering whether 'the current statutory and regulatory parole system in Iowa, on its face, denies juvenile offenders a meaningful opportunity for release.' "

         Bonilla rejects the Board's arguments. On the exhaustion issue, he notes that the Board stated there was no motion practice before the Board within the context of parole release deliberations and subsequently refused to consider all nine of the pending motions. After he appealed that response pursuant to Iowa Administrative Code Rule 205-15.1(17A) (2015), Bonilla points out, that the Board replied that the motions were moot in light of his failure to appeal the parole denial. This, Bonilla, says, was final agency action on the motions.

         Bonilla further argues that his case fits within the exception to the exhaustion requirement for situations "when the administrative remedy is inadequate or its pursuit would be fruitless." Riley v. Boxa, 542 N.W.2d 519, 521 (Iowa 1996) (quoting Alberhasky v. City of Iowa City, 433 N.W.2d 693, 695 (Iowa 1988)). The exception applies here, Bonilla contends, because the Board notified him during the proceedings below, and maintains on appeal, that his motions were inapposite to parole reviews and would merely be considered correspondence.

         Finally, Bonilla argues he was not required to file a rule 1.904(2) motion after the district court's denial of his petition for judicial review. He contends the district court did not limit its decision to a facial or an as-applied challenge to the constitutionality of the Board's procedures. In support, Bonilla quotes a larger portion of the same language relied on by the Board:

         In conclusion, there is no authority compelling the concluding that the matters requested in Bonilla's nine motions to the Board are constitutionally mandated and there is no basis on this record to conclude that the current statutory and regulatory parole system in Iowa, on its face, denies juvenile offenders a meaningful opportunity for release.

         We first address the issue of exhaustion. "All administrative remedies must be exhausted before an aggrieved party is entitled to judicial review of an administrative decision." Riley, 542 N.W.2d at 521. "Two conditions must be met before we apply the doctrine: an adequate administrative remedy must exist for the claimed wrong, and the governing statutes must expressly or impliedly require the remedy to be exhausted before allowing judicial review." Id. "An exception to the doctrine 'is applied when the administrative remedy is inadequate or its pursuit would be fruitless.'" Id. (quoting Alberhasky, 433 N.W.2d at 695). For instance, facial challenges to the validity of a statute are excepted from the exhaustion requirement because agencies cannot decide issues of statutory validity. Tindal, 427 N.W.2d at 872-73. Additionally, there is an exception to the exhaustion requirement for a clear showing of substantial dimension that "irreparable injury resulting from following the administrative process would make judicial review of final agency action an inadequate remedy." Riley, 542 N.W.2d at 522 (quoting Salsbury Labs. v. Iowa Dep't of Envtl. Quality, 276 N.W.2d 830, 837 (Iowa 1979)).

         We think the exhaustion requirement does not bar Bonilla's as-applied challenges. The Board is correct that, by making his motions and administratively appealing prior to the parole denial, the motions could not have been considered by the Board in the factual context presented by Bonilla's case. As such, unless an exception applies, the as-applied challenges fail the exhaustion requirement. However, we think an exception applies here. As Bonilla points out, the Board repeatedly took the position that it would not, and does not, consider such motions in parole review proceedings. The motions were docketed as mere correspondence. Thus, the parole review process is an inadequate remedy. See id. at 521.

         We now turn to the question of whether Bonilla was required to file a rule 1.904(2) motion to preserve his as-applied constitutional challenges. We think it clear that Bonilla presented as-applied challenges to the district court. Yet, the district court's order gives no reason to think that it "considered the issue and necessarily ruled on it." Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). The district court order focuses on discussing generally the impacts of recent federal and state jurisprudence on parole opportunities for persons convicted of crimes committed as juveniles. Nothing in the court's order relates to Bonilla's specific circumstances. Further, the district court clearly states that its decision pertains to "the current statutory and regulatory parole system in Iowa, on its face." Consequently, Bonilla was required to file a rule 1.904(2) motion concerning his as-applied challenges. Because he did not do so, his as-applied challenges are not preserved.

         C. Nature of Facial Challenge. We now proceed to examine Bonilla's facial challenges. His facial challenges claim that various standards and procedures are unconstitutional as to all juvenile offenders. He has not appealed the denial of parole at his various annual reviews and does not seek reversal of those denials.

         To succeed on a facial challenge, the challenger must show that a statute is "totally invalid and therefore, 'incapable of any valid application.'" Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001) (emphasis added) (quoting State v. Brumage, 435 N.W.2d 337, 342 (Iowa 1989)). We have said a facial challenge to a statute "is 'the most difficult . . . to mount successfully' because it requires the challenger to show the statute under scrutiny is unconstitutional in all its applications." Honomichl, 914 N.W.2d at 231 (emphasis added) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. at 2100). For example, in a facial challenge to a statute requiring payment of restitution in order to obtain expungement of a criminal offense, we recently emphasized that the absence of a finding as to the plaintiff's ability to pay was irrelevant to her facial challenge. State v. Doe, 927 N.W.2d 656, 661 (Iowa 2019).

         The above line of cases stated that facts are irrelevant in a facial challenge. Here, Bonilla is not challenging the denial of parole in his annual reviews. He has not appealed the denial of parole in any annual review based on any of the grounds asserted in his petition in this case. Our task is not to consider retrospectively whether Bonilla was ...


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