Opinion
No. 2-009 / 01-0321
Filed September 25, 2002
Appeal from the Iowa District Court for Linn County, David M. Remley, Judge.
Respondent in certiorari action challenges the no probable cause finding at his annual review hearing. WRIT ANNULLED.
Mark Smith, First Assistant State Public Defender, and Thomas J. Gaul, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Roxann Ryan and Andrew B. Prosser, Assistant Attorneys General, for appellee.
Heard by Vogel, P.J., and Miller and Vaitheswaran, JJ., but decided en banc.
Andrew Gaal challenges the no probable cause finding at his annual review hearing. We find the writ should be annulled. Background Facts and Proceedings . In October 1999 Andrew Gaal was civilly committed after a jury found him to be a sexually violent predator within the purview of Iowa Code chapter 229A (1999). Once committed, Gaal was entitled to an annual examination, annual review, and probable cause hearing on his status. Iowa Code § 229A.8(1), (2). During his first annual review and probable cause hearing, in October 2000, the court received the assessment of the Civil Commitment Unit and well as the report and oral testimony of Dr. Dan Rogers, an expert retained by Gaal. After review of the evidence, the district court determined Gaal had not met his burden of showing probable cause to believe his mental abnormality had so changed that he was safe to be at large and would not engage in predatory or sexually violent acts if discharged. Id. at § 229A.8(4). It therefore denied him a further, final hearing on the issue of his release. Id. Gaal filed both an appeal and a petition for a writ of certiorari. The Iowa Supreme Court granted Gaal's petition.
Scope of Review . Ordinarily, we review an action tried at law for correction of errors at law. Iowa R. App. P. 6.4. However, to the extent constitutional issues are implicated, our review is de novo. In re Detention of Williams, 628 N.W.2d 447, 451 (Iowa 2001).
Method of Review . Gaal urges us to find that an appeal, rather than a petition for a writ of certiorari, is the proper method for seeking review of the no probable cause finding. Gaal argues that because the finding denied him a further, final hearing, the district court's ruling constituted a final order subject to direct appeal. See Iowa R. App. P. 6.1(1). We cannot agree.
We find persuasive the reasoning of In re Detention of Petersen, 980 P.2d 1204 (Wash. 1999). In construing a civil commitment statute very similar to Iowa Code chapter 229A, the Washington Supreme Court noted their statute placed offenders under "continuing court jurisdiction . . . until their unconditioned release." Id. at 1213. Rejecting the respondent's argument that the trial court's probable cause decision was a final judgment, the supreme court noted:
Although the Iowa statue does not expressly provide for continuing court jurisdiction, such is implied from the nature of the annual review proceedings. See Iowa Code § 229A.8(1), (2) (granting respondents a right to an annual examination and court review without the necessity of any triggering event, such as the filing of a petition).
"A final judgment is a judgment that ends the litigation, leaving nothing for the court to do but execute the judgment.". . . In view of the statutory declaration that the courts have continuing jurisdiction of committed sexually violent predators, the order in this case cannot be a final judgment.Id. at 1214. (citations omitted).
The reasoning of In re Petersen finds support generally in the language of chapter 229A, as well as our rules of appellate procedure. See Iowa Code § 229A.8; Iowa R. App. P. 6.1. Moreover, by issuing Gaal a writ of certiorari, rather than allowing this matter to proceed as an appeal of right, our supreme court has sent a rather clear signal as to the proper method of review from such matters. We find the petition for a writ of certiorari was the appropriate vehicle for review of the probable cause decision.
Right to be Present . Under the Code, Gaal had a right to be represented by counsel at the probable cause hearing, but not a right to be physically present. Iowa Code § 229A.8(4). Gaal argues the statute violated both his due process rights and the confrontation clause. See generally U.S. Const. amend. V, VI, XIV, § 1; Iowa Const. art. 1, §§ 9, 10. However, as Gaal was in fact allowed to be present for his probable cause hearing, the issue is moot. See In re M.T., 625 N.W.2d 702, 704 (Iowa 2001) (stating an appeal is moot when an appellate judgment will have no practical legal effect upon the existing controversy). We appreciate the position that this is a matter of significant public importance and that we should therefore exercise our discretion to reach the issue. See id. (noting court has discretion to hear appeal on otherwise moot issue "where matters of public importance are presented and the problem is likely to recur"). However, we note the legislature has recently worked a substantial change to relevant provisions of chapter 229A, and we find this question would be better addressed under those amended sections. See S.F. 2286, § 10 (effective April 30, 2002).
Testimony of Alternate Treatment Options . Gaal argues the court erred in excluding testimony from Dr. Rogers as to alternate treatment options. Specifically, the district court issued a pre-trial ruling that
[a]ny alleged lack of treatment, or any contention that the Respondent can be better treated at another institution, or any contention that Respondent's condition is such that he needs some other treatment besides sex offender treatment is not a proper issue for the probable cause hearing.
It also excluded at hearing any testimony from Dr. Rogers responsive to the following question: "Do you believe that [Gaal] can be treated or evaluated in a place other than a locked and secure facility?" Gaal relies on In re Detention of Williams, 628 N.W.2d 447, 460 (Iowa 2001), for the proposition that testimony about less restrictive alternatives is admissible to show a respondent need not be kept in a secure facility in order to prevent reoffending.
We find Williams to be less than dispositive of Gaal's claim. In Williams, the issue was whether, during initial commitment proceedings, the court was required to offer a jury instruction and a special verdict form indicating the State had the burden of proving, beyond a reasonable doubt, that the respondent could not be properly cared for in a setting less restrictive then a secure facility. Id. at 459-460. In ruling the trial court was not required to give such forms or instructions, our supreme court found:
The statute simply does not contemplate placement in a less-restrictive facility. Any evidence presented by Williams to show that he could be kept from reoffending by placement in other than a secure facility generated the possibility of doubt on a crucial element of the State's case. But such defense did not burden the State with an additional proof requirement not mentioned in chapter 229A.Id. at 460.
While acknowledging evidence regarding alternate placement was admitted, Williams does not address whether the admission was proper. Given the foregoing, and the disparate posture of Williams — initial commitment as opposed to annual review — we find little guidance in its pages. In an initial commitment, evidence of less restrictive alternatives is arguably relevant to generating reasonable doubt on the necessity of commitment to a secure facility. At an annual review, such commitment has already been found to be a necessity.
We turn instead to the annual review statute and the ultimate issue in such proceedings. The statute is very narrowly drawn. The only issue for the district court's consideration is whether "probable cause exists to believe that the person's mental abnormality has so changed that the person is safe to be at large and will not engage in predatory acts or sexually violent offenses if discharged." Iowa Code § 229A.8(4). Regardless of the outcome of the probable cause hearing, less restrictive or alternate placement is simply not an available option. Either the respondent is safe to be at large if fully discharged, or he is not. We find no abuse of discretion in the district court's evidentiary ruling. Probable Cause . Gaal argues the court erred when it found probable cause did not exist to believe he was safe to be at large and would not reoffend. Although both sides agree the burden of showing probable cause is on the respondent, they differ as to what standard should be employed to determine when probable cause exists. This is clearly an issue of first impression in Iowa, having never before been addressed in case law. Statutory interpretation is of little assistance, as the Code is completely silent on the issue. See Iowa Code § 229A.8(4). We need not reach the question, however, as, under any plausible standard, Gaal has failed to present sufficient evidence to believe he could be safely released.
If probable cause does not exist, the commitment in a secure facility continues. If probable cause does exist, the respondent is granted a final hearing at which time the State must prove beyond a reasonable doubt that the commitment should continue. Iowa Code § 229A.8(5). No provision is made for alternative treatment. We note, however, that recent statutory changes to chapter 229A provide for a transitional release program as an alternative to discharge. See S.F. 2286, §§ 10, 11 (effective April 30, 2002).
This position finds further support in the unpublished opinion that resolved Gaal's direct appeal. See In re Detention of Gaal, No. 99-1765 (Iowa May 31, 2001). That case, issued concurrently with In re Williams, held: "We agree a respondent should be permitted to offer evidence that commitment in a secure facility is unnecessary, but not in the context of placement following commitment." See also In re Detention of Garren, 620 N.W.2d 275, 283 (Iowa 2000).
The legislature has resolved this problem for future annual review hearings, as the recent amendments to § 229A.8 define a respondent's burden of proof as a preponderance of the evidence. See S.F. 2286, § 10.
The assessment completed by the Civil Commitment Unit recommended Gaal's commitment continue:
Mr. Gaal has not . . . shown any evidence of cognitive or attitudinal changes towards his sexually offensive behavior . . ., he has not participated sufficiently in the treatment program to mitigate his likelihood of sexually reoffending in the future. He maintains that he no longer thinks about sex or becomes sexually aroused, but on the PPG exam he demonstrates sexual arousal to minor males and females, which has been found to be the number 1 predicator of sexual recidivism in the professional literature. From the observations of program staff during the last year, there are no indications that he has any internal, cognitive coping skills that will enable him to deal effectively with stress and prevent a reoccurrence of the type of sexually deviant behavior that he has previously engaged in during the period of stress in his life. The extent of his sexual reoffending has not been determined yet due to his failure to obtain a clean polygraph report yet. It is particularly important to determine his history and his current experience of sadistic impulses since this could reasonably be expected to lead to serious acts of violence toward future victims.
Dr. Rogers did offer contrary testimony, that Gaal's risk of reoffending had diminished and that in his opinion Gaal no longer benefited from, or needed to receive treatment within, the commitment unit. Dr. Rogers explained that because of Gaal's medication and level of depression, "he simply would not have the energy to misbehave." However, Dr. Rogers also opined that Gaal did not cope well with stress and that he required psychiatric treatment and community supervision. Dr. Rogers also stated that if the Gaal were discharged without any form of supervision or treatment, he would feel obligated to file a petition for his commitment.
As written, the statue contemplates only continued commitment or full and complete discharge, without any form of supervision or treatment. In such context, very little of the evidence and testimony presented at the hearing indicated Gaal's condition had so changed that, if discharged, he would be safe to be at large and would not reoffend. We cannot find the district court erred when it determined probable cause did not exist to grant a final hearing.