from the Iowa District Court for Polk County, Douglas F.
Bonilla appeals dismissal of his petition for judicial
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.
J. Miller, Attorney General, and John R. Lundquist, Assistant
Attorney General, for appellee.
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.
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.
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.
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.
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.
Factual and Procedural Background.
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."
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
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.
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,  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
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
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.
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.
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."
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.
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.
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
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."
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
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.
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
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.
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 . . . .
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.
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[.]
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.
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.
district court denied the petition for judicial review.
Bonilla filed a timely appeal. We retained the appeal.
Standard of Review.
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
Whether Bonilla Satisfies the Prejudice Requirement in Iowa
Code Section 17A.19(8), (10).
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).
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.
Board is correct that the prejudice requirement is a harmless
error rule. In our leading case on the prejudice requirement,
[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).
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.
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.
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.
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."
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.
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
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.
Whether Both Facial and As-Applied Challenges Are Before
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).
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).
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
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.' "
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.
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.
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:
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.
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
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.
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.
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.
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
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 ...