                   IN THE SUPREME COURT OF IOWA

                           No. 101 / 06–1856

                         Filed October 10, 2008


HAROLD JOHNSON,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR STORY COUNTY,

      Defendant.




      Certiorari to the Iowa District Court for Story County, Carl D.

Baker, Judge.



      Plaintiff challenges the district court’s denial of his request for a

final hearing at his annual review.     WRIT SUSTAINED, AND CASE

REMANDED.



      Mark C. Smith, State Appellate Defender, and Steven L. Addington

and Michael H. Adams, Assistant Public Defender, for plaintiff.



      Thomas J. Miller, Attorney General and Linda J. Hines and Becky

Goettsch, Assistant Attorneys General, for defendant.
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STREIT, Justice.

       By petition for writ of certiorari, Harold Johnson, a civilly

committed sexual predator, challenges a district court judgment denying

his request for a final hearing to determine whether he is eligible for

release. He claims the district court exceeded its jurisdiction and acted

illegally when it weighed conflicting expert opinions at his annual review

to determine he was not entitled to a final hearing.    We conclude the

controlling statute does not require the committed person prove at the

annual review a likelihood of winning at his final hearing. The statute

governing annual reviews requires the committed person show there is

admissible evidence that could lead a fact finder to find reasonable doubt

on the issue of whether his mental abnormality has changed.           We

therefore sustain the writ.

       I. Background Facts and Prior Proceedings.

       Johnson was civilly committed as a sexually violent predator under

the Commitment of Sexually Violent Predators Act, Iowa Code chapter

229A in July 2001.      According to the stipulated facts, Johnson was

convicted of lascivious acts with a child in 1994 and assault with intent

to commit sexual abuse in 1985.      Prior to commitment, Johnson was

diagnosed with an antisocial personality disorder that predisposes him to

commit future sexually violent offenses.   Since his 2001 commitment,

Johnson has had five annual reviews, and in each one, the court has

denied Johnson’s request for a final hearing.      At his October 2006

annual review, the State submitted evidence that, although Johnson was

making progress, he was not ready for release and remained more likely

than not to commit sexually violent offenses if not confined in a secure

facility.   Further, the State submitted Johnson’s current progress
                                     3


assessment, which included a transcript from a clinical interview in

which Johnson admitted he was not ready to be released.             Johnson

submitted a report by Dr. Richard Wollert that concluded Johnson no

longer suffers from a mental abnormality, or at the very least, he is not

likely to commit sexually violent offenses if released. Wollert’s conclusion

was based primarily on actuarial data indicating the risk of recidivism

declines with age, and Johnson’s risk of reoffending, given his age of

sixty, was ten percent. The district court weighed the evidence presented

by both parties and determined Johnson had not shown by a

preponderance of the evidence he was entitled to a final hearing.

Johnson filed an application for writ of certiorari with this court,

claiming the district court exceeded its jurisdiction when it weighed

evidence to determine he was not entitled to a final hearing.

      II. Scope of Review.

      In a certiorari case, we review the district court’s action for

corrections of errors at law. Weissenburger v. Iowa Dist. Ct., 740 N.W.2d

431, 434 (Iowa 2007).     We may examine “only the jurisdiction of the

district court and the legality of its actions.” Christiensen v. Iowa Dist.

Ct., 578 N.W.2d 675, 678 (Iowa 1998).          An “illegality exists when the

court’s findings lack substantial evidentiary support, or when the court

has not properly applied the law.”       Id.   We accept as true the district

court’s factual findings, if well supported. State Pub. Defender v. Iowa

Dist. Ct., 644 N.W.2d 354, 356 (Iowa 2002).

      III. Merits.

      Iowa Code chapter 229A allows for the commitment of sexually

violent predators in order “to protect the public, to respect the needs of

the victims of sexually violent offenses, and to encourage full, meaningful
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participation of sexually violent predators in treatment programs.” Iowa

Code § 229A.1 (2007).     The United States Supreme Court has upheld

civil commitments as constitutional so long as the commitment statute

does not violate the Due Process Clause. To civilly commit an individual,
      the State is required by the Due Process Clause to prove by
      clear and convincing evidence the two statutory
      preconditions to commitment: that the person sought to be
      committed is mentally ill and that he requires [commitment]
      for his own welfare and protection of others.
Foucha v. Louisiana, 504 U.S. 71, 75–76, 112 S. Ct. 1780, 1783, 118 L.

Ed. 2d 437, 445 (1992). Once the individual no longer suffers from the

mental abnormality or is no longer dangerous, the civil commitment

must end. Id. at 77, 112 S. Ct. at 1784, 118 L. Ed. 2d at 446.

      This case concerns the procedures afforded to the committed

person after commitment.      Although the statute was enacted for the

long-term treatment of sexually violent predators, section 229A.8 sets

forth procedural due process safeguards permitting the committed

person to challenge his commitment each year. Under section 229A.8,

the committed person is entitled to an annual review in which he may

request a final hearing to determine whether he is eligible for release or

transitional release. This statute provides in part:
            1.   Upon civil commitment . . . , a rebuttable
      presumption exists that the commitment should continue.
      The presumption may be rebutted when facts exist to
      warrant a hearing to determine whether a committed person
      no longer suffers from a mental abnormality which makes
      the person likely to engage in predatory acts constituting
      sexually violent offenses if discharged, or the committed
      person is suitable for placement in a transitional release
      program.
      ....
             5. The following provisions apply to an annual review:
      ....
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             e. The burden is on the committed person to show by a
      preponderance of the evidence that there is competent
      evidence which would lead a reasonable person to believe a
      final hearing should be held to determine either of the
      following:
            (1) The mental abnormality of the committed person
      has so changed that the person is not likely to engage in
      predatory acts constituting sexually violent offenses if
      discharged.
            (2) The committed person is suitable for placement in a
      transitional release program pursuant to section 229A.8A.
            If the committed person shows by a preponderance of
      the evidence that a final hearing should be held on either
      determination under subparagraph (1) or (2), or both, the
      court shall set a final hearing within sixty days of the
      determination that a final hearing be held.

Iowa Code § 229A.8(1), (5)(e) (emphasis added). The statute places the

burden of proof on the committed person to show by a “preponderance of

the evidence” there is “competent evidence which would lead a

reasonable person to believe a final hearing should be held.” Id.

      The previous version of this statute provided a final hearing should

be granted
      if the court at the hearing determines that 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) (2001) (emphasis added). In a 2002 amendment,

the legislature added the “rebuttable presumption . . . that the

commitment should continue” and provided that at the annual review,

“the burden is on the committed person to show by a preponderance of

the evidence that there is competent evidence which would lead a

reasonable person to believe a final hearing should be held.” Iowa Code §

229A.8(1), (5)(e) (2007).   Today, we interpret the current version of
                                           6


section 229A.8(5)(e) to determine exactly what the committed person

needs to demonstrate in order to be granted a final hearing.

       Less than half of states allow for the civil commitment of sexually

violent predators,1 and most of those states use a probable cause

standard at the annual review hearing.             See, e.g., Wash. Rev. Code §

71.09.090(2)(c) (2008).      Cases from those states interpreting their civil

commitment statutes make it clear the probable cause standard does not

permit the court to weigh evidence, and the burden on the committed

person is quite low to be granted a final hearing on the issue of release.2
See, e.g., In the Matter of the Detention of Elmore, 168 P.3d 1285, 1288

(Wash. 2007); In re Commitment of Allen, 927 So. 2d 1070 (Fla. Dist. Ct.

App. 2006). In contrast, Iowa and Missouri require a higher evidentiary

burden—preponderance of the evidence—to be granted a final hearing at

an annual review. The Missouri statute requires the committed person

to demonstrate by a preponderance of the evidence he no longer suffers

       1States  that allow for civil commitment of sexually violent predators include
Arizona, Ariz. Rev. Stat. Ann. § 36–3701 (2008); California, Cal. W&I Code § 6600
(2008); Florida, Fla. St. § 394.910 (2008); Illinois, 725 Ill. Comp. Stat. Ann. 207/1
(2008); Kansas, Kan. Stat. Ann. § 59–29a01 (2007); Massachusetts, Mass. Gen. Laws
Ann. Ch. 123A, § 1 (2008); Minnesota, Minn. Stat. Ann. § 253B.01 (2008); Missouri,
Mo. Rev. Stat. § 632.480 (2008); Nebraska, Neb. Rev. Stat. § 71–1201 (2007); New
Jersey, N.J. Stat. Ann. §30:4–27.24 (2008); North Dakota, N.D. Cent. Code. § 25–03.3–
01 (2008); South Carolina, S.C. Code Ann. § 44–48–10 (2008); Texas, Tex. Health &
Safety Code Ann. § 841.001 (2008); Virginia, Va. Code Ann. § 37.2–900 (2008);
Washington, Wash. Rev. Code § 71.09.010 (2008); and Wisconsin, Wis. Stat. Ann. §
980.01 (2008).
       2In  interpreting Washington’s Sexually Violent Predator Act, the Washington
Supreme Court explained “a court may not weigh the evidence in determining whether
probable cause exists; rather, it must merely decide whether the facts, if believed,
establish that the person is no longer a [sexually violent predator] or may otherwise be
conditionally released.” In the Matter of the Detention of Elmore, 168 P.3d 1285, 1288
(Wash. 2007); see also In re Commitment of Allen, 927 So. 2d 1070 (Fla. Dist. Ct. App.
2006) (“[I]f the committed person presents evidence supporting release at a limited
probable cause hearing, the trial court considers only that evidence to determine
probable cause; it does not weigh the evidence against [it].”).
                                     7


from a mental abnormality.         Mo. Rev. Stat. § 632.498(4) (2004).

Functioning as a “ ‘gatekeeper’ to ensure that only those who make a

legitimate claim can obtain a jury trial,” the district court is permitted to

weigh evidence from both parties in order to determine whether the

committed person has met his burden.           In re Care & Treatment of

Coffman, 225 S.W.3d 439, 444 (Mo. 2007). Although both the Iowa and

Missouri statutes use the preponderance-of-the-evidence standard, the

Missouri statute is different from the Iowa statute in what must be

proven by a preponderance of the evidence.           The Missouri statute

requires the committed person prove he no longer suffers from a mental

abnormality, whereas the Iowa statute requires the committed person

prove only that there is competent evidence that would lead a reasonable

person to grant him a final hearing.          Compare Mo. Rev. Stat. §

632.498(4), with Iowa Code § 229A.8(5). Thus, Iowa’s statute is unique,

and consequently, interpretations of statutes from other states are of

only limited value.

      In the case before us, the parties disagree on what the committed

person needs to demonstrate in order to be granted a final hearing and

what role the district court plays in weighing evidence. The State argues

that by changing the burden of proof from probable cause to

preponderance of the evidence, the Iowa legislature intended to impose a

stricter burden of proof upon the committed person and to require the

court to weigh competing evidence. Relying on the Missouri statute and

case law, the State argues the preponderance of the evidence standard

allows the district court to weigh competing evidence in determining

whether the committed person is entitled to a final hearing. Under this

interpretation, in order to convince a reasonable person he should get a
                                            8


hearing, the committed person would essentially have to prove by a

preponderance of the evidence he no longer suffers from an abnormality

that would make him likely to engage in sexually violent offenses.                      In

effect, the State’s interpretation requires the committed person show a

likelihood of winning at the final hearing in order to be granted a final

hearing.     Under this interpretation, everyone who is granted a final

hearing would essentially be pre-approved for release.

      The flaw in this interpretation becomes apparent when one

compares an annual review with a final hearing. The burden of proof,

who bears that burden, and what needs to be demonstrated by the party

bearing the burden of proof are markedly different at the annual review

and the final hearing. At an annual review, the committed person bears

the burden of proof to show by a “preponderance of the evidence” there is

“competent evidence which would lead a reasonable person to believe a

final hearing should be held.”            Iowa Code § 229A.8(5).              At the final

hearing, the state bears the burden of proof to show “beyond a

reasonable doubt” the committed person’s mental abnormality has not

changed.3      Id. § 229A.8(6).      The committed person has no burden to

      3The   provision on final hearings, section 229A.8(6), reads in part:

              d. The burden of proof at the final hearing shall be upon the
      state to prove beyond a reasonable doubt either of the following:

             (1) The committed person’s mental abnormality remains such
      that the person is likely to engage in predatory acts that constitute
      sexually violent offenses if discharged.

              (2) The committed person is not suitable for placement in a
      transitional release program. . . .

Iowa Code § 229A.8(6)(d). The prerequisites for the transitional release program
include, among other things, that the committed person’s “mental abnormality is no
longer such that the person is a high risk to reoffend.” Id. § 229A.8A(2)(a).
                                           9


prove anything at the final hearing. Id. If, at the final hearing, the fact

finder determines there is a reasonable doubt as to whether the

committed      person   still    suffers   from   a   mental   abnormality,     the

commitment ends. Id.

        It would be illogical and contrary to the legislature’s allocation of

the burden of proof to interpret section 229A.8(5)(e) to require the

committed person to disprove the state’s final-hearing case in order to

obtain a final hearing.         Moreover, such an interpretation ignores the

statutory language, which does not require the committed person to

show there is a reasonable doubt as to whether he continues to suffer

from a mental abnormality, but only that there is “competent evidence

which would lead a reasonable person to believe a final hearing should

be held.” Id. § 229A.8(5) (emphasis added). “We assume the legislature

intends different meanings when it uses different terms in different

portions of a statute.”         Miller v. Marshall County, 641 N.W.2d 742,

749 (Iowa 2002) (citing 2A Norman J. Singer, Sutherland Statutory

Construction § 46:06, at 194 (6th ed. 2000)).            Focusing then on the

language used in section 229A.8(5)(e), we believe a reasonable person

would give the committed person a hearing when there is competent4

evidence that would allow a fact finder to find reasonable doubt on the

issue    of   whether   his     mental     abnormality   has   changed.        This

interpretation of the statute does not foreclose the district court from

evaluating the evidence presented by the committed person to determine

whether the evidence could support a reasonable doubt finding and

        4Competent evidence means admissible evidence, not credible evidence. See
Black’s Law Dictionary 596 (8th ed. 2004); see also State v. Decker, 744 N.W.2d 346,
356 (Iowa 2008).
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whether a reasonable person would conclude that this evidence, if

believed, could lead to release. It does not, however, permit the district

court to conduct a mini-hearing on the issue of whether the committed

person still suffers from a mental abnormality.

      In determining whether the committed person is entitled to a final

hearing, the district court should apply the following standard: if the

committed person presents admissible evidence that could lead a fact

finder to find reasonable doubt on the issue of whether his mental

abnormality has changed such that he is unlikely to engage in sexually

violent offenses, then the committed person should be granted a final

hearing. Johnson has met this standard by submitting the report of Dr.

Wollert.

      IV. Conclusion.

      We interpret the statute governing annual reviews to require the

committed person show there is admissible evidence that could lead a

fact finder to find reasonable doubt on the issue of whether his mental

abnormality has changed.       The writ of certiorari to this court is

sustained.   The district court exceeded its jurisdiction when it denied

Johnson’s request for a final hearing.

      WRIT SUSTAINED, AND CASE REMANDED.
