Iowa Reports
ATWOOD v. VILSACK, 125/05-0485 (Iowa 12-29-2006) WAYNE ATWOOD, ARTHUR JENNINGS, DANIEL BELLMAN, and JOHN CARMODY, on behalf of themselves and all present and future Iowa Code Chapter 229A pretrial detainees, and LOREN G. HUSS, JR., JOHN HENRY NACHTIGALL, TIMOTHY GUSMAN and LANNY TAUTE, on behalf of themselves and those similarly situated, Plaintiffs, v. THE HONORABLE THOMAS J. VILSACK, et al., Defendants. No. 125/05-0485. Supreme Court of Iowa. Filed December 29, 2006.
Certified questions of law from the United States District
Court for the Southern District of Iowa, Robert W. Pratt,
Judge.
Pre-trial detainees awaiting trial on sexually violent
predator petitions brought a class action in the United
States District Court for the Southern District of Iowa
against the Iowa Department of Corrections and others. The
federal court certified a legal question to this court.
CERTIFIED QUESTION ANSWERED.
Randall C. Wilson of the Iowa Civil Liberties Union
Foundation, Des Moines, and Jon M. Kinnamon of Kinnamon,
Kinnamon, Russo, Meyer & Keegan, Cedar Rapids, for
plaintiffs.
Thomas J. Miller, Attorney General, Gordon E. Allen, Deputy
Attorney General, and Mark Hunacek, Assistant Attorney
General, for defendants.
HECHT, Justice.
The United States District Court for the Southern District
of Iowa has certified to us the following question: Are
pre-trial detainees being held pursuant to Iowa Code
chapter 229A (2005) entitled to bail under either the
common law or the Iowa Constitution?
I. Background Facts and Proceedings.
The petitioners are a certified class consisting of “`[a]ll
present and future pretrial detainees held by the Iowa
Department of Corrections, awaiting hearing on their Iowa
Code [c]hapter 229A petition, or who were committed
pursuant to Iowa Code [c]hapter 229A.'” Atwood v. Vilsack,
338 F. Supp. 2d 985, 990 (S.D. Iowa 2004). They filed suit
in the United States District Court for the Southern
District of Iowa against the State of Iowa’s departments
and officials responsible for implementing the pre-trial
detention provisions of Iowa Code chapter 229A, the
Sexually Violent Predator (SVP) Act. Id. at 990-91. The
petitioners claimed: (1) the State’s failure to initiate SVP
proceedings until immediately prior to the discharge of
criminal sentences violated their federal right to a speedy
trial and right to be free from imposition of double
jeopardy, (2) pre-trial detention was in contravention of
chapter 229A, (3) pre-trial detention violated their
federal and state due process rights to bail, (4) pre-trial
detention violated their rights under the Americans with
Disabilities Act (ADA), and (5) the conditions of their
detention violated their federal due process rights. Id. at
993-1008. The court certified the question of state law to
us. Id. at 1008.
Petitioners urge us to hold the common law entitles
detainees to bail during the pre-trial stage of proceedings
brought under chapter 229A. They also assert numerous
provisions of the Iowa Constitution entitle them to bail
during that stage: article 1, section 12 (bail guarantee
clause); article 1, section 17 (proscribing excessive bail);
article 1, section 9 (due process of law); article 1,
section 10 (rights of persons accused); article 1, section
21 (banning bills of attainder); article 1, section 8
(protecting personal security); article 1, section 1
(inalienable rights clause); and article 1, section 25
(unenumerated rights clause). For the reasons that follow,
we conclude persons detained before trial pursuant to Iowa
Code chapter 229A are not entitled to bail under either the
common law or under these provisions of the Iowa
Constitution.
II. Discussion.
A. Common Law Bail Claim.
We have previously acknowledged that although not expressly
declared by our statutes or constitution to be part of Iowa
law, “the common law has always been . . . in force in
Iowa.” Iowa Civil Liberties Union v. Critelli, 244 N.W.2d
564, 568 (Iowa 1976). The petitioners claim a common law
right to bail in the interim between the Iowa district
court’s finding of probable cause to believe they are
sexually violent predators[fn1] and the subsequent trials
to determine whether they are, in fact, sexually violent
predators. They cite Blackstone for the proposition that at
common law all defendants in civil cases were bailable. See
William Blackstone, 4 Commentaries 294 (1769). Because we
are not persuaded, however, that the common law authorized
civil commitment of sexually violent predators for
long-term care and treatment, any reference in Blackstone’s
Commentaries to the availability of bail in all civil cases
does not suggest a right to bail in the type of case now
before us.
Furthermore, any common law claim of entitlement to
pre-trial bail in a civil case of this type could not have
survived our legislature’s enactment of chapter 229A. The
common law may be repealed by implication in a statute that
plainly expresses the legislature’s intent to do so.
Critelli, 244 N.W.2d at 568; Wilson v. Iowa City, 165 N.W.2d
813, 822 (Iowa 1969). Our consideration of whether the
legislature intended to prohibit bail at the pre-trial
stage in SVP cases begins with the words of the statute.
The subject of bail is expressly addressed in only one
section of the statute. Section 229A.5C(1) provides that
persons who commit a public offense while detained pursuant
to section 229A.5 or while subject to an order of civil
commitment shall not be eligible for bail pursuant to
section 811.1.[fn2] The petitioners urge us to interpret
section 229A.5C(1) as an expression of the legislature’s
intent that detainees who have not committed a subsequent
offense while detained or committed should be entitled to
bail. We must reject the petitioners’ suggested
interpretation of the statute, however, because we conclude
section 229A.5C(1) has no application to this case. That
section is intended to preclude access to bail in the
criminal case filed as a consequence of a new offense
committed by a person detained or subject to a civil
commitment order. The petitioners in this case claim
entitlement to bail in their civil SVP proceedings. See In
re Bradford, 712 N.W.2d 144, 146-47 (Iowa 2006) (holding
that the proceedings under the SVP Act are civil); In re
Det. of Garren, 620 N.W.2d 275, 283-86 (Iowa 2006) (same).
Although chapter 229A does not expressly prohibit bail at
the pre-trial stage in SVP cases, neither does it expressly
authorize bail in such cases. Nonetheless, we discern from
the way in which chapter 229A narrowly circumscribes
release of detainees the legislature’s clear intention to
deny bail at the pre-trial stage in SVP proceedings. The
only instance in which the release of a detainee is
authorized before commitment to a secure facility is when,
after a hearing, the district court does not find probable
cause to believe the detainee is a SVP.[fn3] In that event,
the detainee is not held over for trial and has no need for
bail.
The only other detainees who may be released in SVP cases
are those who qualify for discharge pursuant to section
229A.5B(1), which in turn authorizes the discharge of
detainees under sections 229A.8 or 229A.10. See Iowa Code
§ 229A.5B(1). Section 229A.5B(1) provides:
A person who is detained pursuant to section 229A.5 or is
subject to an order of civil commitment under this chapter
shall remain in custody unless released by court order or
discharged under section 229A.8 or 229A.10. A person who
has been placed in a transitional release program or who
is under release with or without supervision is considered
to be in custody.
(Emphasis added.) Petitioners suggest that this section
signals an intent that bail is available to detainees at
the pre-trial stage. We disagree. Discharge under sections
229A.8 or 229A.10 may be achieved only after a trial has
occurred, the detainee has been found beyond a reasonable
doubt to be a SVP, and commitment to the department of
human services for control, care and treatment has been
ordered.
Once committed, “a rebuttable presumption exists that the
commitment should continue.” Id. § 229A.8(1).
Discharge of a detainee committed to a secure facility may
be ordered under section 229A.8 if the detainee’s condition
is subsequently shown to be suitable for discharge.[fn4]
Similarly, a detainee committed to a secure facility may be
discharged pursuant to section 229A.10 if it is shown that
the person no longer suffers from a mental abnormality
making it likely that the person will engage in predatory
acts constituting sexually violent offenses.[fn5] Discharge
under sections 229A.8 or 229A.10 is a remedy available to a
detainee only after (1) commitment has been ordered, and (2)
the detainee’s mental condition has improved so that
transfer to a transitional program, release with or without
conditions, or discharge is appropriate. In summary, it is
clear that the petitioners have no access to bail under
chapter 229A because (1) the district court found probable
cause to believe they are sexually violent predators, and
(2) the remedies of release and discharge are not available
at the pre-trial stage in the interim between a finding of
probable cause and trial of the claim that petitioners are
SVPs.
Yet another feature of chapter 229A compels us to conclude
the legislature intended to preclude bail at the pre-trial
stage. Section 229A.7(7) provides in relevant part: “Upon a
mistrial, the court shall direct that the respondent be
held at an appropriate secure facility until another trial
is conducted.” This provision unmistakably discloses by
implication the legislature’s intent that detention shall
continue after the district court has made a finding of
probable cause until the question of whether the detainee
is in fact a SVP has been adjudicated. Accordingly, we
conclude the legislature clearly intended chapter 229A to
preclude bail for detainees at the pre-trial stage.
Consequently, any claim to bail based upon common law that
antedated the adoption of chapter 229A is without merit.
Finally, our conclusion that the legislature intended to
deny bail to detainees at the pre-trial stage of SVP cases
is strongly influenced by the legislative findings set out
in section 229A.1. The statute was adopted “to protect the
public, to respect the needs of the victims of sexually
violent offenses, and to encourage full, meaningful
participation of sexually violent predators in treatment
programs.” Id. Admitting an individual to bail before trial
when there is probable cause to believe he or she is a
sexually violent predator would not further the
legislature’s purposes. See Martin v. Reinstein, 987 P.2d
779, 795 (Ariz. 1999) (noting that Arizona’s SVP statute
does not require access to bail because of legislators’
concerns about public safety); Commonwealth v. Knapp, 804
N.E.2d 885, 890 (Mass. 2003) (interpreting the
Massachusetts SVP statute to require confinement without
bail after a finding of probable cause, in part because of
the legislative purpose of protecting the public).
B. Entitlement to Bail Under the Iowa Constitution.
i. Iowa Constitution Article 1, Section 9 (Due
Process).[fn6]
The certifying court in this case has concluded the denial
of bail at the pre-trial stage did not violate the
petitioners’ substantive due process rights under the
federal constitution. Atwood, 338 F. Supp. 2d at 998. We
are asked to decide the separate question whether
petitioners are entitled to bail under the Due Process
Clause in the Iowa constitution. See Iowa Const. art. I,
§ 9 (stating “no person shall be deprived of life,
liberty, or property, without due process of law”). “This
court has traditionally considered the federal and state
due process provisions to be equal in scope, import, and
purpose.” In re Det. of Garren, 620 N.W.2d at 284 (citing
In re Interest of C.P., 569 N.W.2d 810, 812 (Iowa 1997);
Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 792 (Iowa
1994)). Although “[w]e have an interest in harmonizing our
constitutional decisions with those of the Supreme Court
when reasonably possible, . . . we recognize and will
jealously guard our right and duty to differ in appropriate
cases.” State v. Olsen, 293 N.W.2d 216, 219-20 (Iowa 1980).
Substantive due process principles preclude the government
“from engaging in conduct that `shocks the conscience,’ or
interferes with rights `implicit in the concept of ordered
liberty.'” United States v. Salerno, 481 U.S. 739, 746, 107
S. Ct. 2095, 2101, 95 L. Ed. 2d 697, 708 (1987) (citations
omitted). To assess the petitioners’ substantive due
process claim, we first define the nature of the involved
right. In re Det. of Cubbage, 671 N.W.2d 442, 446 (Iowa
2003). “[F]reedom from physical restraint `has always been
at the core of the liberty protected by the Due Process
Clause from arbitrary governmental action.'” Kansas v.
Hendricks, 521 U.S. 346, 356, 117 S. Ct. 2072, 2079, 138 L.
Ed. 2d 501, 511-12 (1997) (quoting Foucha v. Louisiana, 504
U.S. 71, 80, 112 S. Ct. 1780, 1785, 118 L. Ed. 2d 437, 448
(1992)). Although the liberty interest of an individual to
be free from physical restraint has been described as “a
paradigmatic fundamental right,” Knapp, 804 N.E.2d at 891,
the Supreme Court has noted that the interest is not
absolute. Hendricks, 521 U.S. at 356, 117 S. Ct. at 2079,
138 L. Ed. 2d at 512. States, including Iowa, have “in
certain narrow circumstances provided for the forcible
civil detainment of people who are unable to control their
behavior and who thereby pose a danger to the public health
and safety.” Id. at 357, 117 S. Ct. at 2079, 138 L. Ed. 2d
at 512. Involuntary civil commitment statutes have
withstood due process challenges if they authorize
detention pursuant to proper procedures and evidentiary
standards. Id. at 357, 117 S. Ct. at 2080, 138 L. Ed. 2d at
512.
Petitioners do not advance here the broad notion that they
have a due process right not be involuntarily detained
prior to the adjudication of their status under chapter
229A. They instead make the narrower claim that once
detained, they have a due process right to bail at the
pre-trial stage under the Iowa Constitution. The question
whether the claimed right is fundamental is one of first
impression for this court. In In re Detention of Garren,
620 N.W.2d 275 (Iowa 2000), we did not decide whether a
detainee’s liberty interest is fundamental because we
concluded chapter 229A passed muster even when judged under
a strict scrutiny standard. Id. at 286.[fn7] We also
rejected Garren’s claim that substantive due process
required placement of SVPs in the “least restrictive
placement.” Id. at 285 (noting that “even if such a right
did exist, it is not a `fundamental right'” (citation
omitted)).
As in Garren, we conclude it is unnecessary for us to
resolve the question whether the petitioners’ claimed
interest is fundamental. Even under strict scrutiny
analysis, chapter 229A comports with substantive due
process standards. The state’s interest in detaining persons
during the interim between the district court’s finding of
probable cause and the trial of the SVP claim is
compelling. It is an interest in protecting the public from
“a small but extremely dangerous group” of persons who are
highly likely to engage in “repeat acts of predatory sexual
violence” if not detained. See Iowa Code § 229A.1; In
re Det. of Williams, 628 N.W.2d 447, 458 (Iowa 2001)
(finding a compelling state interest in “protecting society
from a person prone to sexually assaulting children”); In
re Det. of Garren, 620 N.W.2d at 286 (finding the
confinement of sexually violent predators in a secure
facility served the compelling State interest in
“protection of the public”).
The restriction of liberty resulting from the denial of
bail at the pre-trial stage in these cases is narrowly
tailored. See City of Panora v. Simmons, 445 N.W.2d 363,
367 (Iowa 1989) (noting that a statute will survive strict
scrutiny analysis only if it is narrowly drawn to serve a
compelling state interest). Pre-trial detention without
access to bail is limited to a specific category of
dangerous persons who have been convicted of or charged
with a sexually violent offense and who suffer from a
mental abnormality that makes them likely to engage in
predatory acts constituting sexually violent offenses, if
not confined in a secure facility. See Iowa Code §
229A.2(11).
The significant procedural protections afforded detainees
during the pre-trial stage in SVP cases strongly influence
our determination that the statute is narrowly tailored. A
person may not be detained under chapter 229A until after
(1) the attorney general files a petition alleging that the
person is a SVP and stating sufficient facts to support
such an allegation (section 229A.4(1)), and (2) a district
court has made a preliminary determination that the person
named in the petition is a SVP (section 229A.5(1)). Once
detained, the person is entitled to a hearing in the
district court within seventy-two hours[fn8] to determine
whether probable cause exists to believe the detained
person is a SVP. See id. § 229A.5(2). At the probable
cause hearing, the detainee has the right to appear in
person with counsel, challenge the preliminary finding of
probable cause by presenting evidence, cross-examine the
state’s witnesses, and access all petitions and reports in
the possession of the court. See id. §
229A.5(2)(a)-(g). If, after the hearing, the district court
finds probable cause to believe the detainee is a SVP, the
detainee is entitled to a timely trial to determine whether
he is, in fact, a SVP.[fn9]
Our decision today is consistent with a series of prior
decisions upholding chapter 229A against substantive due
process claims under the Iowa Constitution. We have
repeatedly held that civil commitment of a SVP does not
violate substantive due process. In re Det. of Darling, 712
N.W.2d 98, 101 (Iowa 2006) (holding that civil commitment
of a person with an untreatable condition was consistent
with substantive due process under the Iowa Constitution);
In re Det. of Betsworth, 711 N.W.2d 280, 289 (Iowa 2006)
(same); In re Det. of Hodges, 689 N.W.2d 467, 470 (Iowa
2004) (holding that civil commitment on the basis of an
antisocial personality disorder was consistent with
substantive due process under the Iowa Constitution); In re
Det. of Cubbage, 671 N.W.2d at 445-48 (Iowa 2003) (finding
no fundamental right to be competent during SVP statute
proceedings and, thus, that commitment of incompetent
people is consistent with substantive due process under the
Iowa Constitution).
ii. Iowa Constitution Article I, Section 12 (Bail
Guarantee).[fn10].
Iowa’s bail guarantee clause only applies to criminal
cases. See Allen v. Wild, 249 Iowa 255, 259, 86 N.W.2d 839,
842 (1957) (finding that the bail guarantee clause does not
guarantee bail in civil extradition proceedings because the
clause only has “reference to persons charged with offenses
against the laws of the State of Iowa”); Orr v. Jackson,
149 Iowa 641, 643-44, 128 N.W. 958, 960 (1910) (holding
that the bail guarantee clause is not applicable in a
habeas corpus proceeding because such proceedings are
civil); cf. Martin v. Reinstein, 987 P.2d 779, 788 (Ariz.
1999) (finding that the Arizona Constitution’s bail
guarantee only applies in the “criminal context”). Because
petitioners are pre-trial detainees in civil commitment
proceedings, not criminal proceedings, the bail guarantee
clause does not entitle them to bail.[fn11]
iii. Iowa Constitution Article I, Section 17 (Excessive
Bail).[fn12]
Due to the similarity between the Federal and Iowa
Excessive Bail Clauses, the Iowa Supreme Court “`look[s] to
the interpretations by the United States Supreme Court for
guidance in interpreting [Iowa’s] clause.'” State v.
Briggs, 666 N.W.2d 573, 584 (Iowa 2003) (citing State v.
Izzolena, 609 N.W.2d 541, 547 (Iowa 2000)). The Federal
Constitution’s Excessive Bail Clause only prohibits
excessive bail in cases “where it is proper to grant bail”;
it does not impliedly create a right to bail. Carlson v.
Landon, 342 U.S. 524, 545, 72 S. Ct. 525, 537, 96 L. Ed.
547, 563 (1952). Because petitioners offer no reason for us
to interpret the Iowa Constitution’s Excessive Bail Clause
differently, we conclude that it does not create a right to
bail, but instead only ensures that properly granted bail
is not excessive. Accordingly, petitioners’ claim that the
Iowa Excessive Bail Clause entitles them to bail must fail.
iv. Iowa Constitution Article I, Section 8 (Personal
Security).[fn13]
Iowa law is unclear regarding whether article I, section 8
applies in a civil context, such as commitment proceedings
under chapter 229A. The Iowa Supreme Court generally
interprets article I, section 8 of the Iowa Constitution to
track federal interpretations of the Fourth Amendment. See
State v. Jones, 666 N.W.2d 142, 144 (Iowa 2003). The United
States Supreme Court has applied the Fourth Amendment in
both civil and criminal contexts. See United States v.
James Daniel Good Real Prop., 510 U.S. 43, 49, 114 S. Ct.
492, 499, 126 L. Ed. 2d 490, 500 (1993) (noting that the
Fourth Amendment “place[s] restrictions on seizures
conducted for purposes of civil forfeiture”); United States
v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S. Ct. 1056,
1060, 108 L. Ed. 2d 222, 232 (1990) (observing that the
“Fourth Amendment . . . prohibits `unreasonable searches
and seizures’ whether or not the evidence is sought to be
used in a criminal trial”).
We recognize that we may interpret the Iowa Constitution
differently, but the parties suggest no reason for us to do
so. We accordingly hold that article I, section 8 applies
in a civil context. Petitioners thus fall within the ambit
of protection afforded by the personal security guarantee
of article I, section 8.
We now turn to whether the seizure[fn14] of petitioners
was “reasonable” under article I, section 8. To determine
whether governmental action is “reasonable” under this
constitutional provision, the Iowa Supreme Court balances
an individual’s interests with the State’s interests. State
v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). We find that
the State’s pre-trial seizure of petitioners is reasonable
because the State’s weighty interest in protecting the
public from an “extremely dangerous” class of people
outweighs an individual’s interest in being free on bail
for ninety days between a probable cause hearing and trial.
See Iowa Code § 229A.1.
v. Iowa Constitution Article I, Section 10 (Rights of the
Accused).[fn15]
Article I, section 10 does not entitle petitioners to bail
because this provision only applies to criminal
proceedings. It protects only the rights of an “accused,”
not the rights of an individual facing potential civil
commitment pursuant to Iowa’s SVP statute.
In addition, even if this were a criminal proceeding,
petitioners could not rely on article I, section 10. This
provision does not include among its express protections a
right to bail.
vi. Iowa Constitution Article I, Section 21 (Bills of
Attainder).[fn16]
A bill of attainder “is a legislative determination that
metes out punishment to a particular individual or a
designated group of persons without a judicial trial.”
State v. Phillips, 610 N.W.2d 840, 843 (Iowa 2000). Three
elements comprise a bill of attainder: a specific
legislative target, imposition of punishment, and absence of
a judicial trial. Id.
The determinative element in this case is imposition of
punishment. To assess whether a law imposes punishment, we
look to the intentions of the legislature. See State v.
Swartz, 601 N.W.2d 348, 351 (Iowa 1999) (noting that if a
law is “designed to accomplish some other legitimate
governmental purpose [besides imposition of punishment] it
should stand”); Doe v. Poritz, 662 A.2d 367, 396 (N.J.
1995) (“What counts . . . is the purpose and design of the
statutory provision, its remedial goal and purposes, and
not the resulting consequential impact, the `sting of
punishment,’ that may inevitably, but incidentally, flow
from it.”). By enacting Iowa’s SVP statute, the legislature
did not intend to punish sexually violent predators.
Rather, the stated purposes of the statute are to protect
society and facilitate treatment of sexually violent
predators. Iowa Code § 229A.1. Therefore, the SVP
statute is not a bill of attainder that impermissibly
denies petitioners the right to bail.
vii. Iowa Constitution Article I, Section 25 (Unenumerated
Rights)[fn17] and Article I, Section 1 (Inalienable
Rights).[fn18]
Petitioners’ claims that Iowa Constitution article I,
section 25, the unenumerated rights clause, and Iowa
Constitution article I, section 1, the inalienable rights
clause, entitle them to bail fail for essentially the same
reason. Both the inalienable rights clause and the
unenumerated rights clause secure to the people of Iowa
common law rights that pre-existed Iowa’s Constitution. See
Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 176 (Iowa 2004)
(citing May’s Drug Stores v. State Tax Comm’n, 242 Iowa
319, 329, 45 N.W.2d 245, 250 (1950)) (“We have held [the
inalienable rights clause] was intended to secure citizens’
pre-existing common law rights (sometimes known as `natural
rights’) from unwarranted government restrictions.”); State
ex rel. Burlington & Mo. River R.R. v. County of Wapello,
13 Iowa 388, 412 (1862) (concluding that the purpose of the
unenumerated rights clause is to “bring . . . unenumerated
rights retained by the people, founded equally . . . upon
natural justice and common reason . . . within the
censorship of courts of justice . . . when . . . [the
rights are] assailed”). To resolve this case, however, we
need not determine whether a common law right to bail in
civil commitment proceedings pre-existed the Constitution,
as the petitioners urge us to do. Even if the right to bail
in civil commitment proceedings pre-existed the Constitution
and consequently falls within the ambit of the protections
afforded by the unenumerated rights and inalienable rights
clauses, the SVP statute is reasonable and, thus,
constitutional.
It is well-established that the protections of Iowa’s
inalienable rights clause are not absolute. See Gacke, 684
N.W.2d at 176. The clause does not prevent all legislative
action taken pursuant to the police power that benefits the
community and impacts an inalienable right (i.e. a common
law or natural right). See id. Instead, it prevents only
arbitrary, unreasonable legislative action that impacts an
inalienable right. See id. (citing Gibb v. Hansen, 286
N.W.2d 180, 186 (Iowa 1979); May’s Drug Stores, 242 Iowa at
329, 45 N.W.2d at 250; Benschoter v. Hakes, 232 Iowa 1354,
1361, 8 N.W.2d 481, 485 (1943); State v. Osborne, 171 Iowa
678, 693, 154 N.W. 294, 300 (1915)).
We find that the unenumerated rights clause similarly
prohibits not all legislative action, but instead only
unreasonable action. The petitioners root their argument
that the unenumerated rights clause entitles them to bail
in the assumption that unenumerated rights are absolute and
may not be the subject of legislative action, even if
reasonable. This interpretation of the unenumerated rights
clause would effectively disallow all legislative action as
to all unenumerated rights. Such an interpretation of the
unenumerated rights clause would substantially limit the
power of the legislature to enact laws, such as the SVP
statute, that protect the public.
Moreover, we have previously recognized that the
unenumerated rights clause limits, not eliminates, the
State’s power to legislatively impact unenumerated rights.
In State ex rel. Burlington & Mo. River R.R. v. County of
Wapello, we noted the theoretical inconsistency between two
prevalent legal doctrines: “the doctrine that the
Constitution allows the legislature the use of every power
which it does not positively prohibit,” and the doctrine
that the Constitution reserves to the people all rights
“secured under our plan of government.” 13 Iowa at 413. An
inconsistency arises in that a legislature with “full and
uncontrolled sway” to act in all ways not specifically
prohibited in the Constitution would inevitably infringe
upon rights reserved to the people. Id. In Wapello, we
concluded that while the legislature may take actions to
benefit the community, the Iowa Constitution’s reservation
of unenumerated rights to the people limits “an abuse” of
legislative power. Id. at 412-15.
Having concluded that the legislature may take reasonable
action that impacts rights protected by the inalienable
rights and unenumerated rights clause, we turn to whether
the SVP statute is reasonable. Because of the State’s
interests in rehabilitating sexually violent predators and
protecting the public, we find that pre-trial detention
under the SVP statute is a reasonable, and thus
constitutional, exercise of legislative power.
III. Conclusion.
We conclude that pre-trial detainees being held pursuant to
Iowa Code chapter 229A are not entitled to bail under
either the common law or the Iowa Constitution. The clerk
of the supreme court is directed to send a copy of this
opinion under the seal of the court to the certifying court
and the parties. Iowa Code § 684A.7. The clerk shall
also prepare and transmit a bill of costs to the clerk of
the certifying court. Iowa R. App. P. 6.459. The clerk of
the certifying court shall be responsible for apportioning
and collecting costs. Id.
CERTIFIED QUESTION ANSWERED.
All justices concur except Appel, J., who takes no part.
[fn1] Iowa Code section 229A.5(1) requires the district
court, upon the filing of a petition alleging a person is a
SVP, to make a preliminary determination of whether the
State has shown probable cause to believe the person is a
SVP. If the court preliminarily finds probable cause to
believe the person is a SVP, the person shall be taken into
custody. Id. The detainee is thereafter entitled to a
probable cause hearing. Iowa Code § 229A.5(2). If
the court finds probable cause to believe the detainee is a
SVP, the detainee is entitled to a trial to determine
whether the detainee is, in fact, a SVP. See id. §
229A.7(2).
[fn2] Section 811.1 provides that “[a]ll defendants are
bailable both before and after conviction, by sufficient
surety, or subject to release upon condition or on their
own recognizance,” except for defendants in certain
criminal cases.
[fn3] See Iowa Code § 229A.5(5) (requiring transfer
of the detainee to an appropriate secure facility for an
evaluation only “[i]f the court determines that probable
cause does exist”). Although the statute does not expressly
direct discharge of the detainee in the event probable
cause is not established, this is clearly implied.
[fn4] After commitment to a secure facility, a person may
petition the court for placement in a transitional release
program. See Iowa Code &Sect; 229A.8(4), 229A.8A. Release
may be ordered with or without supervision. Id. §
229A.9A(1).
[fn5] Section 229A.7(5) provides:
If [at trial] the court or jury determines that the
respondent is a sexually violent predator, the respondent
shall be committed to the custody of the director of the
department of human services for control, care, and
treatment until such time as the person’s mental
abnormality has so changed that the person is safe to be
placed in a transitional release program or discharged.
[fn6] “The right of trial by jury shall remain inviolate;
but the General Assembly may authorize trial by a jury of a
less number than twelve men in inferior courts; but no
person shall be deprived of life, liberty, or property,
without due process of law.” Iowa Const. art. I, §
9.
[fn7] Unlike the petitioners, Garren presented an equal
protection challenge. In an earlier SVP case, we applied a
rational basis analysis to an equal protection claim
because the appellant failed to preserve a claim that the
reasonableness of the classification should be subjected to
strict scrutiny. In re Det. of Morrow, 616 N.W.2d 544, 548
n. 1 (Iowa 2000).
[fn8] The hearing may be waived by the detainee or may be
continued “upon the request of either party and a showing
of good cause, or by the court on its own motion in the due
administration of justice, . . . if the [detained person]
is not substantially prejudiced.” Iowa Code §
229A.5(2).
[fn9] The trial shall be held within ninety days after
“either the entry of an order waiving the probable cause
hearing or completion of the probable cause hearing,”
unless the trial is “continued upon the request of either
party and a showing of good cause, or by the court on its
own motion in the due administration of justice . . . when
the [detainee] will not be substantially prejudiced.” See
Iowa Code § 229A.7(3).
[fn10] “All persons shall, before conviction, be bailable,
by sufficient sureties, except for capital offences where
the proof is evident, or the presumption great.” Iowa
Const. art. I, § 12.
[fn11] Proceedings under chapter 229A are civil. See In re
Bradford, 712 N.W.2d at 146-47; In re Det. of Garren, 620
N.W.2d at 283-86.
[fn12] “Excessive bail shall not be required. . . .” Iowa
Const. art. I, § 17.
[fn13] Iowa Constitution article I, section 8, states:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable seizures
and searches shall not be violated; and no warrant shall
issue but on probable cause, supported by oath or
affirmation, particularly describing the place to be
searched, and the persons and things to be seized.
[fn14] Pre-trial detention is undisputedly a “seizure.” It
constitutes a “show of authority” that restrains the
individual. See State v. Reindeers, 690 N.W.2d 78, 82 (Iowa
2004) (“`A seizure occurs when an officer by means of
physical force or show of authority in some way restrains
the liberty of a citizen.'” (quoting State v. Pickett, 573
N.W.2d 245, 247 (Iowa 1997))).
[fn15] Iowa Constitution article I, section 10, states:
In all criminal prosecutions, and in cases involving the
life, or liberty of an individual the accused shall have a
right to a speedy and public trial by an impartial jury;
to be informed of the accusation against him, to have a
copy of the same when demanded; to be confronted with the
witnesses against him; to have compulsory process for his
witnesses; and, to have the assistance of counsel.
[fn16] “No bill of attainder, ex post facto law, or law
impairing the obligation of contracts, shall ever be
passed.” Iowa Const. art. I, § 21.
[fn17] “This enumeration of rights shall not be construed to
impair or deny others, retained by the people.” Iowa Const.
art. I, § 25.
[fn18] Iowa Constitution article I, section 1, states, “All
men are, by nature, free and equal, and have certain
inalienable rights — among which are those of
enjoying and defending life and liberty, acquiring,
possessing and protecting property, and pursuing and
obtaining safety and happiness.”