                 IN THE SUPREME COURT OF IOWA
                                 No. 15–2213

                              Filed May 5, 2017


IN THE MATTER OF M.W., Alleged to be Seriously Mentally Impaired,

M.W.,

        Appellant.


        On review from the Iowa Court of Appeals.



        Appeal from the Iowa District Court for Johnson County, Christine

Boyer, Judicial Hospitalization Referee and Marsha Bergan, District

Court Judge.



        A patient involuntarily committed by a judicial hospitalization

referee’s order appeals his commitment.         DECISION OF COURT OF

APPEALS VACATED; APPEAL DISMISSED.



        Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer,

Assistant Attorney General, for appellant State.



        Willie E. Townsend, Coralville, for appellee.
                                    2

WIGGINS, Justice.

       The State seeks further review following the court of appeals

decision vacating the judicial hospitalization referee’s involuntary

hospitalization order.    See Iowa Code ch. 229 (2015).       The State

challenges the court of appeals’ conclusion that it had jurisdiction to

hear the appeal.    We vacate the decision of the court of appeals and

dismiss the appeal because neither the referee’s order issued on

December 8, 2015, nor the district court’s order issued on December 9

are appealable as a matter of right pursuant to Iowa Rules of Appellate

Procedure 6.103.

       I. Background Facts and Proceedings.

       M.W. is an adult who has a history of mental illness. Beginning in

July 2014, M.W.’s guardian had him hospitalized for over a year at the

University of Iowa Hospitals and Clinics (UIHC).       In 2015, M.W.’s

guardian placed him in Chatham Oaks, an Iowa City residential care

facility.   On December 4, M.W. attempted to return to the UIHC by

walking approximately three miles through freezing temperatures while

dressed unsuitably for the weather.     After arriving at the UIHC, M.W.

refused medications. A doctor at the UIHC, who was familiar with M.W.

from the previous hospitalization, began involuntary commitment

proceedings in order to compel treatment.

       The court scheduled a hearing for December 8. M.W. was served

with a notice for the hearing but his guardian was not. The hearing was

held on December 8.      M.W.’s attorney moved to continue the hearing

because the guardian had not been notified and was not present. The

judicial hospitalization referee denied the motion, found M.W. was

seriously mentally impaired, and ordered M.W. committed to the UIHC.
                                      3

        M.W.’s attorney appealed to the district court from the denial of his

motion to continue.      On December 9, the district court held a brief

hearing on the appeal and issued a ruling that same day. The district

court determined that the referee did not abuse her discretion in denying

M.W.’s motion to continue and declined to remand the case to the referee

for another hearing.     The district court further concluded Iowa Code

chapter 229 does not require a guardian be served with a notice before

the hearing, explaining such a notice would be contrary to the purpose of

the time requirement in chapter 229 and delay a respondent’s return to

either liberty or essential mental health treatment.      Finally, the court

noted M.W. had the right to challenge the ruling, as well as all of the

other rulings of the referee at a de novo hearing on the record before the

district court.    Accordingly, the district court scheduled a de novo

hearing for December 22.

        On December 18, however, the UIHC requested M.W.’s release

from involuntary hospitalization. The UIHC stated M.W. was compliant

with his medications, and his guardian agreed with the new treatment

plan.    The district court thus dismissed the case.      On December 21,

M.W.’s attorney filed a withdrawal of appeal, stating, “[T]here is no

reason to continue the legal process at the district court level, but will

continue at the appellate court level.”      The court did not cancel the

December 22 hearing, and when the parties did not appear, the district

court entered an order stating that “the hearing in this matter [was] not

pursued before the district court,” and therefore, the court would take no

further action in the matter.

        On December 23, M.W. filed a notice of appeal to the supreme

court indicating he was appealing the December 8 referee order and the

December 9 district court order.      On our own motion, we ordered the
                                    4

parties to file statements on jurisdiction.   We explained that we were

“concerned as to whether [we have] jurisdiction over the respondent’s

appeal” because M.W. filed a withdrawal of appeal to the district court on

December 21, and no one appeared at the December 22 hearing.

      After receiving the parties’ statements, we ordered the appeal

proceed to briefing, but directed the parties to further develop their

arguments on jurisdiction and mootness. We then transferred the case

to the court of appeals. The court of appeals held that it had jurisdiction

over the appeal because the referee’s order of commitment was a final

appealable order. The court of appeals also held that, although the case

was moot because the district court had already dismissed the

commitment proceedings against M.W., it found exceptions to the

mootness doctrine. Finally, the court of appeals held M.W.’s guardian

was entitled to notice of the commitment proceedings and thus vacated

the referee’s order.

      The State applied for further review, which we granted.

      II. Issue.

      M.W. raises several issues on appeal.         Our first duty is to

determine whether we have jurisdiction to consider and decide the

appeal on its merits. Lloyd v. State, 251 N.W.2d 551, 558 (Iowa 1977).

We find that jurisdiction is dispositive of this appeal, and therefore, we

do not reach the merits.

      III. Jurisdiction.

      M.W. appeals two separate rulings made in the trial court. First,

he appeals the referee’s order of December 8, denying the motion to

continue and committing M.W. to the UIHC after finding he was seriously

mentally impaired.     Second, he appeals the district court’s order of

December 9, affirming the denial of the continuance.
                                     5

      The State contends appellate jurisdiction is lacking because M.W.

abandoned appellate review when he withdrew his appeal to the district

court on December 21 and failed to appear at the hearing on

December 22.    The State argues that the referee’s order is not a final

appealable order because Iowa Code section 229.21(3) provides that

respondents are to appeal such orders to the district court. The State

also argues that the district court ruling of December 9 is not a final or

interlocutory order for the purpose of appellate review.

      A. The Referee’s December 8 Order. M.W. asked the referee to

continue the hearing on December 8 because no one served M.W.’s

guardian with notice of the hearing. The referee denied the continuance,

concluding there was no requirement the guardian be served before the

hearing. The referee then decided the merits and committed M.W. to the

UIHC after finding he was seriously mentally impaired.             M.W. is

appealing this order directly to the supreme court.

      Under our appellate rules, we have jurisdiction to review “[a]ll final

orders and judgments of the district court involving the merits or

materially affecting the final decision.” Iowa R. App. P. 6.103; see also In

re Melodie L., 591 N.W.2d 4, 7 (Iowa 1999).           Thus, our task is to

determine whether the denial of the continuance and the commitment

order by the referee constituted a final judgment of the district court for

the purpose of bringing an appeal to this court.

      Iowa Code section 229.21 prescribes the general procedures for an

involuntary hospitalization hearing before a judicial hospitalization

referee.

      When an application for involuntary hospitalization . . . is
      filed with the clerk of the district court in any county for
      which a judicial hospitalization referee has been appointed,
      and no district judge, district associate judge, or magistrate
                                       6
        who is admitted to the practice of law in this state is
        accessible, . . . [t]he referee shall discharge all of the duties
        imposed upon the court by sections 229.7 to 229.22 . . . in
        the proceeding so initiated. Subject to the provisions of
        subsection 4, orders issued by a referee, in discharge of
        duties imposed under this section, shall have the same force
        and effect as if ordered by a district judge.

Iowa Code § 229.21(2).

        Iowa Code section 229.21(3) governs the process for requesting an

appeal to the district court.

        Any respondent with respect to whom the magistrate or
        judicial hospitalization referee has found the contention that
        the respondent is seriously mentally impaired . . . may
        appeal from the magistrate’s or referee’s finding to a judge of
        the district court by giving the clerk notice in writing, within
        ten days after the magistrate’s or referee’s finding is made,
        that an appeal is taken.

Id. § 229.21(3)(a).

        An order of a magistrate or judicial hospitalization referee
        with a finding that the person is seriously mentally impaired
        . . . shall include the following notice, located conspicuously
        on the face of the order:

                     NOTE: The respondent may appeal from this
              order to a judge of the district court by giving written
              notice of the appeal to the clerk of the district court
              within ten days after the date of this order. The appeal
              may be signed by the respondent or by the
              respondent’s next friend, guardian, or attorney. For a
              more complete description of the respondent’s appeal
              rights, consult section 229.21 of the Code of Iowa or
              an attorney.

Id. § 229.21(3)(b). “When appealed, the matter shall stand for trial de

novo.     Upon appeal, the court shall schedule a hospitalization or

commitment hearing before a district judge at the earliest practicable

time.” Id. § 229.21(3)(c). The Code further provides that in addition to a

referee’s order finding a “respondent is seriously mentally impaired”

pursuant to section 229.21(3)(a), “[a]ny respondent with respect to whom

the magistrate or judicial hospitalization referee has held a placement
                                      7

hearing and has entered a placement order may appeal the order to a

judge of the district court.” Id. at § 229.21(3)(d).

      M.W. contends he was not required to appeal to the district court

before seeking review from our court, relying in part on our decision in

Melodie L., 591 N.W.2d 4. In Melodie L., we considered the authority of a

hospital referee to dismiss a proceeding in response to a request by a

patient. Melodie L., 591 N.W.2d at 7.

      The hospital referee found Melodie L. to be seriously mentally

impaired after a hearing. Id. at 5. After being hospitalized for several

months, the referee reviewed Melodie L.’s condition and ordered her

transferred to a group home. Id. at 6. After Melodie L. was transferred,

she filed an application to be released from inpatient treatment. Id. The

referee held a hearing and found insufficient evidence that Melodie L.

continued to be seriously mentally impaired, and the referee ordered her

released. Id. The county attorney filed an appeal of that order to the

district judge, who dismissed the case for lack of jurisdiction. Id. The

county attorney then appealed both the district court’s ruling on the lack

of jurisdiction for appeal and the decision of the judicial referee to the

supreme court. Id.

      On appeal, Melodie L. claimed the applicant in an involuntary

commitment proceeding has no statutory right to appeal a decision to the

district court judge, and thus, the district court judge was correct in

finding no jurisdiction. Id. We agreed with Melodie L. that Iowa Code

section 229.21(3) only allowed the respondent to appeal the referee’s

decision to the district court, not the applicant. Id.

      With respect to the county attorney’s appeal from the referee’s

order itself, however, we held the supreme court had jurisdiction over the

appeal. Id. at 7. We concluded that the referee’s order for Melodie L. to
                                      8

be released was a final order or judgment. Id. We explained that referee

orders are final orders because the statute grants them the “same force

and effect as if ordered by a district judge.”      Id. (quoting Iowa Code

§ 229.21(2)).    Further, we held that because the legislature did not

provide for district court review of orders entered by referees, except for

commitment orders under section 229.21(3), the “lack of review reveals

that an order for dismissal by the referee constitutes a final judgment for

the purposes of appeal.” Id. Thus, we found the appeal to be properly

before us. Id.

      Melodie L. is distinguishable from this case because this appeal by

the respondent, M.W., falls under section 229.21(3), whereas the

applicant’s appeal in Melodie L. did not. The legislature has provided for

district court review of a respondent’s appeal of a referee’s commitment

or placement order. See Iowa Code § 229.21(3)(a), (d). In this case, there

is no lack of review to justify constituting a referee’s order a final

judgment for the purposes of appeal as we held in Melodie L. Thus, the

jurisdiction of this appeal lies within the district court and not our court.

      To support our conclusion in Melodie L., we cited two cases in

which we previously considered whether “juvenile court referees and

probate referees could issue final decisions for the purpose of appeal.”

Melodie L., 591 N.W.2d at 7. In regards to juvenile court referees, we

held they “had concurrent jurisdiction to issue a final decision for the

purposes of appeal since our legislature, in defining the authority of a

referee, specified the referee had ‘the same jurisdiction to . . . issue

orders . . . as the judge of the juvenile court.’ ” Id. (quoting In re D.W.K.,

365 N.W.2d 32, 33–34 (Iowa 1985)); Iowa Code § 602.7103(2) (Supp.

1983). With respect to probate referees, on the other hand, we found the

governing statute did not contain similar language expressly granting
                                      9

probate referees jurisdiction to enter final decisions for the purpose of

appeal.   Melodie L., 591 N.W.2d at 7 (citing In re Estate of Willis, 418

N.W.2d 857, 859–60 (Iowa 1988)).

       In the case In re Guardianship of B.J.P., 613 N.W.2d 670 (Iowa

2000), we did not disturb our decision in Willis, but held the legislature

granted associate probate judges the same jurisdiction as referees in

addition to “ ‘jurisdiction’ to perform ‘judicial functions as the court

prescribes,’ ” giving associate probate judges jurisdiction to enter final

judgments for the purpose of appellate review. Id. (quoting Iowa Code

§ 633.20(3) (1997)). To support our holding, we noted that “we recently

held that a hospitalization referee had statutory authority to enter final

decisions for the purposes of appellate review” and mentioned that

section 229.21(2) provides a referee’s orders have the “same force and

effect as if ordered by a district judge.” Id. at 673 (quoting Melodie L.,

591 N.W.2d at 7); Iowa Code § 229.21(2) (2015)). In finding that orders

of the associate probate judges are final for the purpose of appellate

review, we also reasoned the legislature had “failed to establish a

procedure for the district court to review orders by an associate probate

judge,” and “[a]s in D.W.K. and Melodie L., this indicates orders by an

associate probate judge are final.” Guardianship of B.J.P., 613 N.W.2d at

673.

       Importantly, the legislature has provided for district court review of

a judicial hospitalization referee’s commitment or placement order when

a respondent appeals. See Iowa Code § 229.21(3)(a), (d). This indicates

that an order by a judicial hospitalization referee is not final when a

respondent appeals from it.      Therefore, a respondent’s remedy is an

appeal to the district court as provided by section 229.21(3).
                                    10

      We find support for our conclusion that the respondent in this

case must appeal the referee’s order to the district court when

considering other areas of our law in which the district court has

appellate   jurisdiction.   For   example,   in   the   establishment    and

improvement of drainage districts, “Any person aggrieved may appeal

from any final action of the board in relation to any matter involving the

person’s rights, to the district court of the county in which the

proceeding was held.” Iowa Code § 468.83(1).

      In the assessment and valuation of property,

      Appeals may be taken from the action of the local board of
      review with reference to protests of assessment, to the
      district court of the county in which the board holds its
      sessions . . . . Appeals may be taken from the action of the
      property assessment appeal board to the district court of the
      county where the property which is the subject of the appeal
      is located within twenty days after the letter of disposition of
      the appeal by the property assessment appeal board is
      postmarked to the appellant. . . . The assessor shall have
      the same right to appeal and in the same manner as an
      individual taxpayer, public body, or other public officer as
      provided in section 441.42.

Id. § 441.38(1).

      Finally, in the appeal of simple misdemeanors,

      A party takes an appeal by giving notice orally to the
      magistrate at the time judgment is rendered that the party
      appeals or by filing with the clerk of the district court not
      later than ten days after judgment is rendered a written
      notice of appeal.

Iowa R. Crim. P. 2.73(1). In all of these contexts, as in section 229.21(3),

the Code prescribes appellate jurisdiction within the district court for

certain parties and does not provide an avenue for appellants to bypass

that jurisdiction.
                                       11

      B. The District Court’s December 9 Order. In his appeal of the

referee’s order of December 8 to the district court, M.W. asked the

district court for the following relief:

            WHEREFORE, the Respondent in this matter requests
      the court grant his motion to continue and require the
      Guardian to be properly served in this matter and a hearing
      to be conducted at the Referee level where the Guardian may
      be heard.

      In its ruling, the district court held Iowa Code chapter 229 does

not require that a guardian be served with a notice before the hearing;
thus, the referee did not abuse her discretion in denying M.W.’s motion

to continue.     The district court also found M.W. had the right to

challenge the ruling, as well as all of the other rulings of the referee at a

de novo hearing on the record before the district court. The district court

judge scheduled a de novo hearing for December 22.

      The issue here is whether the district court’s December 9 order is a

final order allowing for an appeal under Iowa Rule of Appellate Procedure

6.103.

             A final judgment or decision is one that finally
      adjudicates the rights of the parties. It must put it beyond
      the power of the court which made it to place the parties in
      their original position. A ruling or order is interlocutory if it is
      not finally decisive of the case.

Johnson v. Iowa State Highway Comm’n, 257 Iowa 810, 812, 134 N.W.2d

916, 918 (1965).

      The district court judge acknowledged her decision was not a final

decision on the issues. She specifically noted in her ruling that M.W.

had the right to challenge the ruling, as well as all of the other rulings of

the referee at the December 22 hearing. Therefore, we find the district

court order of December 9 is not a final order that M.W. can appeal as a
                                    12

matter of right.    M.W. can only appeal the district court order of

December 9 if it is appealable as an interlocutory order.

      Our appellate rules allow us to treat a notice of appeal as an

application for interlocutory appeal. Iowa R. App. P. 6.108. In the past,

when a party has filed a notice of appeal from an interlocutory order, we

have treated the notice of appeal as an application for interlocutory

appeal, granted the application, and decided the appeal. Sweeney v. City

of Bettendorf, 762 N.W.2d 873, 876–77 (Iowa 2009). The State claims the

December 9 order is not appealable as an interlocutory order. However,

we need not reach this issue because the case is no longer pending in the

district court.

      On December 21, M.W. withdrew his appeal to the district court

after the UIHC discharged him from its care. When a party abandons an

appeal, he or she can no longer prosecute the appeal for the appellate

court has lost jurisdiction of the matter. Dewey v. Pierce, 69 Iowa 81,

82–83, 28 N.W. 445, 445 (1886).          Here, the district court was the

appellate court. When M.W. withdrew his appeal, the district court lost

jurisdiction, and the case was no longer pending in the district court.

Granting M.W. an interlocutory appeal is no longer feasible because

M.W.’s case is no longer being prosecuted in the district court.

      Accordingly, the December 9 district court order is not appealable

as a matter of right, and we are unable to convert the notice of appeal to

an application for interlocutory appeal.     Therefore, we must dismiss

M.W.’s appeal of the December 9 district court order.

      IV. Disposition.

      We conclude M.W., the respondent in this case, must first appeal

the judicial hospitalization referee’s order finding him seriously mentally

impaired to the district court according to section 229.21(3) of the Iowa
                                    13

Code. Only after the district court enters a final order or judgment with

respect to finding M.W. seriously mentally impaired or his placement,

would we have jurisdiction to review this case. We further conclude that

the district court’s December 9 order was not appealable as a matter of

right. Accordingly, we vacate the decision of the court of appeals and

dismiss the appeal.

      DECISION     OF   COURT     OF     APPEALS    VACATED;    APPEAL

DISMISSED.

      All justices concur except Appel, J., who dissents.
                                      14

                                                        #15–2213, In re M.W.

APPEL, Justice (dissenting).

      I respectfully dissent.

      In In re Melodie L., we considered an appeal by the state of a

dismissal of an involuntary commitment proceeding by a referee.            591

N.W.2d 4, 5 (Iowa 1999). We held that the order was not interlocutory

because of the language of Iowa Code section 229.21(2) (1997). Id. at 7.

In particular, we cited the provision of the statute that orders issued by

referees shall “have the ‘same force and effect as if ordered by a district

judge.’ ” Id. (quoting Iowa Code § 229.21(2)).

      Our main rationale in Melodie L. was that the hospitalization

referee has “concurrent jurisdiction” with the district court in holding an

involuntary committal hearing.       Id.   Because a referee’s commitment

order is the equivalent of a district court order, it is appealable. Id.

      It is true that in Melodie L., the court, in addition to the above

noted language, further observed that the state did not otherwise have a

basis for appealing a referee’s order refusing commitment. Id. But the

main rationale in Melodie L. is not so qualified.         Iowa Code section

229.21(2) does not say an order of a referee shall be treated as an order

of the district court “if involuntary commitment is denied.” The majority

is, in effect, adding these words to the statute.           But the statute

unambiguously applies to all orders of referees whether or not

commitment results.

      The proposition that a finding of “concurrent jurisdiction” is

sufficient, by itself, to support determining that a referee’s order is final

and appealable is also supported by In re D.W.K., 365 N.W.2d 32 (Iowa

1985).   In that case, we held that a juvenile court referee’s order was

final because the referee was granted concurrent jurisdiction by Iowa
                                    15

Code section 602.7103(2) (1983 Supp.). Id. at 33–34. Importantly, the

juvenile court referee’s order was appealable to juvenile court under Iowa

Code section 602.7103(3). Id. at 34. Thus, there was in fact another

potential avenue of appeal in D.W.K.         Nonetheless, we held that

concurrent jurisdiction was sufficient to establish that a juvenile court

referee’s order was final, noting, “Because no review [by the juvenile

court] was requested in this case, the referee’s order is final and we have

jurisdiction of the appeal.” Id.

      The approach in D.W.K. to “concurrent jurisdiction” was utilized in

Melodie L. and formed the basis of the court of appeals opinion in this

case. 591 N.W.2d at 7. I would leave the approach undisturbed rather

than reengineer the statute and our caselaw.

      On the merits, I would hold that M.W.’s guardian was entitled to

notice.   Iowa Rule of Civil Procedure 1.305(3) requires notice to the

guardian unless M.W. was confined at a state hospital for the mentally

ill. At the time of the hearing, M.W. was not so confined. Thus, notice

should have been afforded to M.W.’s guardian.
