Opinion
No. 3-126 / 02-0577
Filed April 4, 2003
Appeal from the Iowa District Court for Buchanan County, Todd A. Geer, Judge.
Eric Holt appeals from a ruling on judicial review in which the district court affirmed the Iowa Department of Public Safety's determination he is a high risk to sexually reoffend. AFFIRMED.
Carter Stevens of Roberts, Cohrt, Stevens Lekar, P.L.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Jeffrey Farrell, Assistant Attorney General, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
By virtue of his November 22, 1996 conviction for the third-degree sexual abuse of his younger brother, Eric Holt was required to register with the Iowa Sex Offender Registry. Thereafter the Iowa Department of Public Safety (Department) determined Holt is "at risk" to reoffend and notified him of its intent to give public notice of the risk. See Iowa Code § 692A.13(3), (6) (1999). Holt sought judicial review of the Department's final action declaring him to be "at risk." We affirm the district court ruling on judicial review affirming this determination.
I. Background Facts and Proceedings.
On October 22, 1999, the Department served Holt with a notice of its intent to make public notification, alleging the public notification was necessary due to its determination Holt was a high risk to reoffend. Holt appealed this notification, and a hearing was held before an administrative law judge (ALJ). The ALJ modified the determination, and found Holt to be a low risk to reoffend, thus decreasing the degree of public notification necessary.
The Department appealed this determination to the commissioner. Following a hearing, the commissioner entered a decision reversing the ALJ and finding Holt to be at high risk to reoffend. She ordered that notification be made to all audio, print, and visual media, public and private schools, and the sheriff's office and police departments. She also ordered the information to be posted on the Department's website. The district court affirmed on judicial review. Holt appeals from this ruling.
II. Standard of Review.
Our review is subject to Iowa's Administrative Procedure Act, Iowa Code chapter 17A. Peterson v. Iowa Dep't of Transp., 508 N.W.2d 689, 691 (Iowa 1993). Because this proceeding was commenced before the agency after July 1, 1999, the extensive amendments to chapter 17A enacted in 1998 govern our review. Midwest Automotive III, L.L.C. v. Iowa Dep't. of Transp., 646 N.W.2d 417, 421 (Iowa 2002). We review an agency decision for correction of errors of law. PanDa Eng'g v. Eng'g Land Surveying Examining Bd., 621 N.W.2d 196, 198 (Iowa 2001). The fundamental principle of administrative law remains the same: "administrative decisions are to be made by the agencies, and not by the courts." Leonard v. Iowa State Bd. of Educ., 471 N.W.2d 815, 815 (Iowa 1991).
An agency's factual findings are binding on appeal if supported by "substantial evidence in the record made before the agency when the record is viewed as a whole." Ludtke v. Iowa Dep't. of Transp., 646 N.W.2d 62, 65 (Iowa 2002). Evidence is substantial when a reasonable person could accept it as adequate to reach the same findings. Id. Conversely, evidence is not insubstantial merely because it would have supported contrary inferences, or because two inconsistent conclusions could be drawn from it. Id.
III. Discussion.
On appeal, Holt contends (1) the Department's conclusion he is a high risk to reoffend is not supported by substantial evidence, and (2) the agency's decision is arbitrary, capricious, and an abuse of discretion, in part, because it relied upon the results of a test instrument known as the Iowa Sex Offender Registry Risk Assessment (Registry Risk Assessment) which was not supported by a clinical evaluation. Holt's primary argument is that the Department should have credited the opinions of Dr. Gratzer, a board certified psychiatrist, over the opinion of Nicole Day, a psychologist and director of the Adolescent Sexual Abuse Program and the State Training School in Eldora.
Day conducted a Registry Risk Assessment to evaluate Holt's risk to reoffend. See Iowa Code § 692A.13(6). The Assessment is an instrument that employs a "score sheet" and attempts to measure the likelihood of reoffense based upon various relevant factual considerations, such as whether violence was used in past abuse, the number and age of the victims, the duration of the offense, whether drugs were used, and the individual's criminal history. Day's interpretation of Holt's assessment score led her to opine that Holt is at high risk to reoffend.
Dr. Gratzer opined that, although Holt meets the criteria for a diagnosis of "conduct disorder" and may be at risk to criminally reoffend, he is not a high risk to sexually reoffend. Gratzer's opinion was influenced by numerous clinical considerations including (1) Holt's successful completion of sex offender treatment, (2) the literature indicating incest perpetrators have the lowest risk of reoffense (less than ten percent without treatment), and (3) the fact that Holt was thirteen years of age and "struggling" with the development of a sexual identity when he perpetrated the abuse upon his younger brother. Dr. Gratzer reviewed Day's interpretation of Holt's scores on the assessment instrument and expressed reservations about its reliability.
Dr. Gratzer noted he was "unaware of any literature to suggest that this 15-item form is statistically reliable in discerning the risks of individuals for sexual reoffense or being able to distinguish between low, moderate, and high risk individuals."
Dr. Gratzer and Day considered the results derived from the same risk assessment instrument, but reached different conclusions. It appears Day's opinion was based solely upon her interpretation of the results derived from the assessment instrument. Dr. Gratzer supplemented his interpretation of the results of the assessment instrument with clinical considerations to support his opinion that Holt is not a high risk to reoffend, but rather a moderate risk.
Holt challenges the Department's high-risk assessment because it was based solely upon Day's interpretation of the results derived from the risk assessment instrument. In In re Detention of Holtz, 653 N.W.2d 613 (Iowa Ct.App. 2002) we had occasion to address the admissibiility of certain actuarial risk assessment results in the context of a proceeding to commit Daniel Holtz as a sexually violent predator. We held the district court did not abuse its discretion in admitting evidence derived from such instruments, but cautioned our holding should not be viewed as a determination that actuarial risk assessment instruments are reliable per se or that opinions derived solely from them are sufficient when used alone and not in conjunction with a full clinical evaluation. Holtz, 653 N.W.2d at 619.
Although Ms. Day apparently did not perform or rely upon a full clinical evaluation in conducting Holt's risk assessment in this case, we believe the Department appropriately considered her opinion in the context of this administrative proceeding. Public notification cases such as this are governed by the relaxed evidentiary standards set forth in Iowa Code section 17A.14, and the burden of proof is by a preponderance of the evidence. Accordingly, if opinions based in part upon risk assessment tools are admissible and can be considered in civil commitment proceedings in which the loss of freedom is at issue, see Holtz, 653 N.W.2d at 619, we conclude such opinions are also admissible in administrative proceedings brought pursuant to Iowa Code chapter 692A, whether or not they rely in part upon a clinical evaluation. See Clark v. Iowa Dep't of Revenue Fin., 644 N.W.2d 310, 320 (Iowa 2002) (noting an agency may base a decision upon evidence that would ordinarily be deemed inadmissible under the rules of evidence, as long as the evidence is not immaterial or irrelevant).
Having concluded the Department properly considered Day's opinion based solely upon results derived from a risk assessment instrument, what essentially remains is a "battle of the experts" between the testimony of Day and the testimony of Dr. Gratzer. Without unduly lengthening this opinion by intimately reviewing the conclusions, methods, and qualifications of both Day and Gratzer, we conclude a neutral, detached, and reasonable person could deem the record sufficient to establish Holt is at a high risk to reoffend. A similarly neutral, detached, and reasonable person could, as Dr. Gratzer opined, conclude Holt does not pose a high risk to reoffend. Our standard of review dictates that we must apply agency findings broadly and liberally to uphold, rather than to defeat, an agency's decision; and we are not permitted to conduct a de novo review of the evidence. Titan Tire Corp. v. Employment Appeal Bd., 641 N.W.2d 752, 755 (Iowa 2002). In light of the witnesses' two differing, yet amply explained and well-supported conclusions, it was the agency's call in deciding which to accept. We conclude substantial evidence supports its conclusion Holt is a high risk to reoffend. We further conclude the Department's decision was not arbitrary, capricious, or an abuse of discretion. We therefore affirm the district court ruling affirming the decision of the Iowa Department of Public Safety.