               IN THE SUPREME COURT OF IOWA
                                No. 13–2022

                            Filed March 13, 2015


IN RE THE DETENTION OF CALVIN MATLOCK,

CALVIN MATLOCK,

      Appellant.


      Appeal from the Iowa District Court for Dubuque County,

Michael J. Shubatt, Judge.



      A person committed under the Sexually Violent Predator Act

alleges his release with supervision violates the Due Process Clauses of

the Iowa and the United States Constitutions.      AFFIRMED IN PART,

REVERSED IN PART, AND CASE REMANDED.



      Steven L. Addington and Jill Eimermann, Assistant State Public

Defenders, for appellant.



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

and John McCormally, Assistant Attorneys General, for appellee.
                                    2

WIGGINS, Justice.

      A person committed under the Sexually Violent Predator Act

alleges his release with supervision violates the Due Process Clauses of

the Iowa and the United States Constitutions.      We find the statutory

scheme contained in Iowa Code sections 229A.8 and 229A.9A does not

violate the Due Process Clauses of the Iowa and the United States

Constitutions as long as: the person continues to suffer from a mental

abnormality, the testimony supports the need for supervision, and the

supervision strikes the right balance between the need to protect the

community and the person’s liberty interest. Applying these principles to

this appeal, we find the committed person still suffers from a mental

abnormality and the testimony supports his release with supervision.

Thus, we affirm that part of the district court’s judgment. We are not

satisfied the State met its burden to prove the release conditions adopted

by the district court balance the need to protect the community and the

person’s liberty interest. Accordingly, we remand the case to the district

court to review the release conditions and enter the appropriate order

consistent with due process.

      I. Background Facts and Proceedings.

      Calvin Matlock has three convictions for sex abuse dating back to

the early 1980s. His last conviction was in 1995, and prior to his set

release from prison in 2000, the State filed a petition to place Matlock in

civil commitment for sexually violent predators. In July 2001, a civil jury

found Matlock was a sexually violent predator as defined by Iowa Code

section 229A.2(9) (2001).      Following the verdict, the district court

confined Matlock to the Civil Commitment Unit for Sexual Offenders

(CCUSO).
                                     3

      Pursuant to chapter 229A, Matlock received annual evaluations

regarding his treatment progress and the continued existence of a mental

abnormality.   Iowa Code § 229A.8(2)–(3) (2013).    In 2006, the district

court found Matlock met all the criteria for placement in a transitional

release program under Iowa Code section 229A.8A(2). Matlock remained

in the transitional release program, albeit with some setbacks in

progress, until 2013.

      At Matlock’s 2013 annual review hearing, the State was required to

prove Matlock’s “mental abnormality remains such that [he] is likely to

engage in predatory acts that constitute sexually violent offenses if

discharged.” Id. § 229A.8(6)(d)(1). Although the testimony established

Matlock still exhibits minimal signs of a mental abnormality, the State

was unable to prove that Matlock is likely to engage in predatory acts

that constitute sexually violent offenses if discharged.   Id.   Thus, the

district court granted Matlock’s motion for directed verdict orally on the

record on the basis the State could not prove Matlock would be likely to

reoffend.   On October 2, the district court confirmed its ruling on the

motion for directed verdict in a written order.

      In October, when the district court granted Matlock’s motion for a

directed verdict, it ordered Matlock “should be discharged from the

program, but it is in the best interest of the community to order release

with or without supervision before [he] is discharged.” The district court

reached this decision, in part, because of the testimony of Tracy Thomas,

the clinical director at CCUSO. The district court found Matlock “has a

history of sexually violent crimes and would, like many other offenders,

have trouble reintegrating into the community if he goes from a

significant level of supervision and structure to no supervision or

structure whatsoever.”      The district court then ordered the Iowa
                                      4

Department of Human Services (DHS) to prepare a release plan for

Matlock, addressing his needs for counseling, medication, community

support services, residential services, vocational services, alcohol or

other drug abuse treatment, sex offender treatment, or any other

necessary treatment or supervision.

      In November, Matlock had a second hearing to determine if his

release would be with or without supervision.       Prior to the November

hearing, DHS submitted a twelve-page release plan to the district court,

which contained sixty-six primary conditions to his release, many of

which had additional conditions.          The release plan also turned

jurisdiction of the supervision over to the First Judicial District of Iowa,

Community Based Corrections, specifically Mike Shreck of the Iowa

Department of Correctional Services (DOC). The district court accepted

the recommended conditions of the release plan with the exception that

the court would hold a review of Matlock’s need for supervision every six

months rather than the recommended year because of the significant

liberty interest involved.

      At both hearings, Matlock argued Iowa Code section 229A.9A was

unconstitutional.    Matlock asserted that once the court found he no

longer suffered from a mental abnormality that made him likely to

engage in acts of sexual violence, release with supervision violated his

due process rights. Following the November order, Matlock filed a notice

of appeal.

      II. Jurisdiction.

      Before we reach the merits of Matlock’s appeal, we must determine

if our court has jurisdiction over this matter.     The State alleges the

appeal is untimely because Matlock did not file an appeal within thirty

days following the October 2 order; and therefore, we do not have
                                          5

jurisdiction over the appeal. See Iowa R. App. P. 6.101(1)(b). Matlock

filed his notice of appeal on December 18, within thirty days after the

district court ordered Matlock released from CCUSO with supervision.

       In the October 2 order, the district court ordered Matlock “be

discharged from the program” but then determined “it is in the best

interest of the community to order release with or without supervision

before [Matlock] is discharged.”          The district court directed DHS to

prepare a release plan within thirty days. 1           In this order, the district

court also overruled Matlock’s argument that Iowa Code section 229A.9A

is unconstitutional.

       After DHS prepared the release plan, the district court held a

second hearing on November 7.            At the November 7 hearing, Matlock

renewed his constitutional objections to supervision because he was no

longer a sexually violent predator as defined by the Code. Following the

hearing, the district court entered a written order on November 18,

ordering the release of Matlock with supervision and ordering him to

follow the conditions of the release plan prepared by DHS.

       We do not consider a ruling final if the district court intends to act

further on the case before entering its final decision of the issues. See

River Excursions, Inc. v. City of Davenport, 359 N.W.2d 475, 477 (Iowa

1984).     Here, the district court explicitly recognized its ruling on

Matlock’s liberty restrictions would not be final until it ruled on the

terms of supervision, if any. An appeal from the October 2 order would

have been premature.        Accordingly, the district court entered the final

order in this case on November 18, and the appeal was timely.


       1The  legislature amended Iowa Code section 229A.9A(2) in 2014 to extend the
time DHS has to prepare the release plan from thirty to sixty days. See 2014 Iowa Acts
ch. 1059, § 2 (codified at Iowa Code § 229A.9A(2) (2015)).
                                     6

      III. Issue.

      The only issue we must decide on this appeal is whether Matlock’s

release with supervision violates the substantive Due Process Clauses of

the Iowa or the United States Constitutions.

      IV. Scope of Review.

      We review constitutional challenges de novo.       See In re Det. of

Garren, 620 N.W.2d 275, 278 (Iowa 2000).

      V. Relevant Statutory Overview of Chapter 229A.

      The purpose of chapter 229A is to provide long-term care and

treatment of sexually violent predators. Iowa Code § 229A.1. The Code

defines a “sexually violent predator” as

      a person who has been convicted of or charged with a
      sexually violent offense and who suffers from a mental
      abnormality which makes the person likely to engage in
      predatory acts constituting sexually violent offenses, if not
      confined in a secure facility.

Id. § 229A.2(11).
      The Code states a “mental abnormality” is “a congenital or

acquired condition affecting the emotional or volitional capacity of a

person and predisposing that person to commit sexually violent offenses

to a degree which would constitute a menace to the health and safety of

others.” Id. § 229A.2(5). The Code provides a person

      “likely to engage in predatory acts of sexual violence” means
      that the person more likely than not will engage in acts of a
      sexually violent nature. If a person is not confined at the
      time that a petition is filed, a person is “likely to engage in
      predatory acts of sexual violence” only if the person commits
      a recent overt act.

Id. § 229A.2(4).

      To be committed to CCUSO, a judge or jury must determine

beyond a reasonable doubt that the person is a sexually violent predator.
                                      7

Id. § 229A.7(5). While at CCUSO, there is a rebuttable presumption the

civil commitment should continue.         Id. § 229A.8(1).   The committed

person is entitled to an annual examination. Id. § 229A.8(2). The report

of the examination is forwarded to the district court to conduct an

annual review. Id. § 229A.8(3). The committed person may petition the

court for discharge at the time of the annual review. Id. § 229A.8(4). To

receive a hearing,

      [t]he burden is on the committed person to prove by a
      preponderance of the evidence that there is relevant and
      reliable evidence to rebut the presumption of continued
      commitment, which would lead a reasonable person to
      believe a final hearing should be held to determine either of
      the following:

            (a) 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.

            (b) The committed person is suitable for placement in a
      transitional release program pursuant to section 229A.8A.

Id. § 229A.8(5)(e)(1).

      If the committed person can meet this burden, the court then sets

the matter for a final hearing. Id. § 229A.8(5)(e)(2). At the final hearing,

the State must prove beyond a reasonable doubt “[t]he committed

person’s mental abnormality remains such that the person is likely to

engage in predatory acts that constitute sexually violent offenses if

discharged.” Id. § 229A.8(6)(d)(1).

      If the State fails to meet its burden,

      the court may order the committed person released with or
      without supervision if . . . [t]he court or jury has determined
      that the person should be discharged from the program, but
      the court has determined it is in the best interest of the
      community to order release with or without supervision
      before the committed person is discharged.
                                     8

Id. § 229A.9A(1)(b).

      If the committed person’s release is with or without supervision,

DHS shall prepare a release plan. Id. § 229A.9A(2). The court must then

hold a hearing on the release plan.       Id. § 229A.9A(3).    If the court

approves the plan and orders release with supervision, an agency

familiar with the placement of criminal offenders in the community

provides the supervision.      Id. § 229A.9A(4).     “A committed person

released with or without supervision is not considered discharged from

civil commitment under this chapter.” Id. § 229A.9A(6).

      VI. Due Process.

      A. Substantive Due Process Generally.            Matlock claims the

district court order imposing release with supervision violates the Due

Process Clauses of the Iowa and the United States Constitutions. The

Due Process Clause of the United States Constitution bars a state from

“depriv[ing] any person of life, liberty, or property without due process of

law.” U.S. Const. amend. XIV, § 1. Our Iowa Constitution provides “no

person shall be deprived of life, liberty, or property, without due process

of law.” Iowa Const. art. I, § 9. We have “traditionally considered the

federal and state due process provisions to be equal in scope, import,

and purpose.” Garren, 620 N.W.2d at 284.

      As with all of Iowa’s constitutional provisions, we reserve the right

to construe our Iowa Constitution differently from the United States

Constitution, even though the two constitutions contain nearly identical

language and appear to have the same scope, import, and purpose.

State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013).

      Although Matlock set forth these principles in his brief, he does not

offer or suggest a framework under the Iowa Constitution different from

that under the United States Constitution.         Therefore, we apply the
                                       9

general federal framework in analyzing the issue, but reserve the right to

apply the framework in a fashion different from federal caselaw.           See

State v. Short, 851 N.W.2d 474, 491 (Iowa 2014).

      The first determination we must make is whether the procedures

under chapter 229A, the Sexually Violent Predator Act, are civil in

nature, thus, not triggering the constitutional protections given criminal

defendants. Garren, 620 N.W.2d at 278; see also Iowa Code § 229A.16.

We previously decided this issue and found chapter 229A did not involve

retribution or deterrence, two primary purposes of criminal punishment.

See Garren, 620 N.W.2d at 279–83 (analyzing Iowa Code chapter 229A in

light of Kansas v. Hendricks, 521 U.S. 346, 361–69, 117 S. Ct. 2072,

2081–85, 138 L. Ed. 2d 501, 515–19 (1997), which addressed the same

question in regards to the Kansas Sexually Violent Predator Act).

Accordingly, the Sexually Violent Predator Act is not criminal in nature,

but rather civil. Id. at 283.

      Substantive due process prohibits the State from engaging in

arbitrary or wrongful acts “ ‘regardless of the fairness of the procedures

used to implement them.’ ” Zinermon v. Burch, 494 U.S. 113, 125, 110

S. Ct. 975, 983, 108 L. Ed. 2d 100, 113 (1990) (quoting Daniels v.

Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662, 668

(1986)). At the core of the liberty protected by the Due Process Clause is

a person’s interest to be free from bodily restraint by arbitrary

government actions.     See Foucha v. Louisiana, 504 U.S. 71, 80, 112

S. Ct. 1780, 1785, 118 L. Ed. 2d 437, 448 (1992). However, this liberty

interest is not absolute. Garren, 620 N.W.2d at 284.

      The    Supreme     Court   has       noted   that   in   certain   narrow

circumstances states have “provided for the forcible civil detainment of

people who are unable to control their behavior and who thereby pose a
                                    10

danger to the public health and safety.” Hendricks, 521 U.S. at 357, 117

S. Ct. at 2079, 138 L. Ed. 2d at 512. Concerning due process challenges

regarding civil commitments the Supreme Court has stated:

      The precommitment requirement of a “mental abnormality”
      or “personality disorder” is consistent with the requirements
      of these other statutes that we have upheld in that it
      narrows the class of persons eligible for confinement to those
      who are unable to control their dangerousness.

Id. at 358, 117 S. Ct. at 2080, 138 L. Ed. 2d at 513. Thus, to determine

if the State has violated a substantive right, we must weigh the person’s
liberty interest against the State’s asserted reason for restraining that

person’s liberty. Youngberg v. Romeo, 457 U.S. 307, 320–21, 102 S. Ct.

2452, 2460–61, 73 L. Ed. 2d 28, 40 (1982).

      B. Analysis. Matlock argues “[t]he district court order imposing

release with services prior to discharging Matlock from civil commitment

after a finding that he no longer suffers from a mental abnormality

violates [his] right to due process.”      Factually, Matlock’s claim is

incorrect. The district court did not find that he no longer suffered from

a mental abnormality. Rather, the district court found the State proved

beyond a reasonable doubt that Matlock suffered from a mental

abnormality, but it failed to prove he is likely to engage in predatory acts

that constitute sexually violent offenses if discharged.       We need to

consider this distinction.

      We have addressed a similar due process challenge in the not-

guilty-by-reason-of-insanity cases where the committed person still

suffers from a mental illness, but no longer presents a danger to himself

or others. See State v. Huss, 666 N.W.2d 152, 155, 160–63 (Iowa 2003);

State v. Stark, 550 N.W.2d 467, 468–70 (Iowa 1996).           In Stark, we

established that a person’s substantive due process rights are not
                                    11

violated if a district court releases a person committed to an institution

with conditions—because she was found not guilty by reason of

insanity—as long as she continues to suffer from a mental illness and

she is not a danger to herself or others with these conditions.       550

N.W.2d at 468–70. The conditions in Stark we found not to violate her

due process rights were established by the chief medical officer and

required Stark to “live in a proper environment [so it] could be assured

that a prescribed medication, Haldol, would be administered to her in

strict compliance with a physician’s directions.” Id. at 468. The medical

officer further opined with these conditions, she would not be a danger to

herself or others. Id.

       In another not-guilty-by-reason-of-insanity commitment, we found

that after a long confinement the person committed was still mentally ill,

although his illness may have been in remission. Huss, 666 N.W.2d at

160.      In applying a due process standard, we noted that confining a

harmless mentally ill person is a violation of that person’s due process

rights.     Id. at 162.   Because Huss did not meet the criteria of a

dangerous person under the commitment statute—a danger to himself or

others—and there was no showing of any needed outpatient supervision,

we discharged Huss from his commitment. Id. at 161–64. We noted that

continued confinement in these circumstances becomes a surrogate for

punishment and violates a person’s due process rights. Id. at 161.

       Mentally ill persons, whether committed under the Sexually Violent

Predator Act or committed because they were found not guilty by reason

of insanity, have the same due process rights. In the case of persons

committed because they were found not guilty by reason of insanity, the

person must be released from commitment if he or she still suffers from

a mental illness but does not meet the criteria of a dangerous person.
                                    12

See id. at 159–60. Additionally, if there is testimony that after release

the person needs some type of supervision to reenter society, that

supervision does not violate the person’s due process rights. See Stark,

550 N.W.2d at 468–70.

      In the case of a person committed under the Sexually Violent

Predator Act, if a person still suffers from a mental abnormality, but the

State cannot prove he or she is likely to engage in acts of sexual violence

upon release, the courts must release that person. Otherwise, continued

confinement violates that person’s due process rights under the Iowa and

the   United   States   Constitutions    and    becomes     a   surrogate   for

punishment. See Foucha, 504 U.S. at 77, 112 S. Ct. at 1784, 118 L. Ed.

2d at 446. If the court finds the State proved release with supervision

would help a person safely reenter society, the court may impose such

conditions and not violate the person’s due process rights under the Iowa

and the United States Constitutions. See Stark, 550 N.W.2d at 468–70.

      Matlock objected to the conditions of his release. At the hearing

regarding the terms of release, Matlock’s attorney stated:

      [T]he plan that’s contemplated could be violated by any
      numerous violations having nothing to do with sexual
      reoffending and being placed back into the facility simply
      known as CCUSO. For those reasons, any release with
      supervision plan is a violation of his due process.

(Emphasis added.) At the same hearing, the State’s position was that

“the release with supervision plan [was] designed as a clinically

appropriate tool to integrate him back into the community so that he

could be successful.”

      When     cross-examining   Shreck,       Matlock   questioned   various

conditions of the release-with-supervision plan.         Among other things,

Matlock raised the issue that the plan of supervision is similar to a plan
                                   13

given to a person on probation or parole.      Shreck stated on cross-

examination the DOC had never supervised a person released with

supervision from CCUSO, only sex offenders released from prison or put

on probation, and Matlock would have the same conditions as a person

released from prison or placed on probation. At the end of the hearing,

Matlock was concerned about the cost, his loss of liberty under the plan,

the fact that he was to report to a parole or probation officer, and the

DOC requiring him to undergo the same treatment as convicted sex

offenders after he just received thirteen years of treatment at CCUSO.

Although not artfully made, the gist of Matlock’s objection was that his

release with supervision was nothing more than the court putting him on

probation or parole with the DOC. He made his point by showing that

the costs a parolee or probationer must pay to be on parole or probation

are the same costs he was required to pay.

      The conditions imposed by a court are also subject to a due

process analysis as they implicate the liberty interest of the individual

who the State is supervising. As we noted in a prior case

      [D]ecisions in the realm of mental commitment rest not only
      on medical judgments but on societal judgments about a
      community’s tolerance for the sometimes deviant behavior of
      mentally ill persons. It is not only the customary procedure,
      but the constitutionally and statutorily mandated
      requirement, to treat even seriously mentally impaired
      persons in the least restrictive environment medically
      possible.

Leonard v. State, 491 N.W.2d 508, 512 (Iowa 1992) (citation omitted).

The Sexually Violent Predator Act appears to recognize these principles

when a person suffers from a mental abnormality but the State cannot

prove the person is likely to reoffend.   See Iowa Code § 229A.9A(1)(b)

(recognizing implicitly that it may be in the best interest of the
                                     14

community to release a sexually violent predator from CCUSO with or

without supervision, rather than discharging that individual).

      Finally, we agree with the New Jersey Supreme Court when it

noted, in regards to a person committed because they were found not

guilty by reason of insanity, that

      [t]he basis for his confinement is rehabilitation and
      treatment. Any standards for release must be based on this
      nature of commitment, given the overriding concern for the
      public safety. Any consideration of punishment has no place
      in a proceeding on the question of conditional release. There
      has been no criminal act to punish. . . . There is no criminal
      to incarcerate. There is, however, a patient to be treated.


State v. Carter, 316 A.2d 449, 459 (N.J. 1974), overruled on other grounds

by State v. Krol, 344 A.2d 289, 305 (N.J. 1975). Again, these principles

are equally applicable to persons committed under the Sexually Violent

Predator Act.

      If the terms of release with supervision are a surrogate for

punishment, the court cannot constitutionally impose such terms. See

Scheidt v. Meredith, 307 F. Supp. 63, 66 (D. Colo. 1970) (“The interests of

the community and the individual are relevant to the granting of a

conditional release. . . .   [T]erms which were designed to regulate the

activities of convicted criminals, and which are punitive in nature,

cannot be imposed in a case such as this.”).       Courts have held the

release of a mentally ill person with conditions similar to criminal

probation violate due process. See, e.g., id.

      By enacting sections 229A.8 and 229A.9A, the legislature allows a

court to release a sexually violent predator with or without supervision

after it determines what is in the best interest of the community. Iowa

Code § 229A.9A(1)(b). If the court properly balances the interest of the

community against the liberty interest of the person suffering from a
                                    15

mental abnormality who is not likely to engage in acts of sexual violence

upon release, the statutory scheme does not violate Matlock’s rights

under the State or Federal Due Process Clauses. Thus, on their face,

sections 229A.8 and 229A.9A pass constitutional muster under the Iowa

and the United States Constitutions.

      The only issue that troubles us is the extent of the supervision

ordered by the court. The court ordered the DOC to supervise Matlock’s

release. The statute authorizes the DOC to supervise the release. See id.

§ 229A.9A(4). However, the terms of the plan are similar to terms of a

person released on parole or probation. The terms are also inconsistent

with the testimony of the clinical director of CCUSO at trial.

      The director’s testimony at trial touched on the type of supervision

Matlock would need to integrate successfully back into society.       She

testified as follows:

      My opinion would be that he would definitely need mental
      health followup, so general mental health, looking at some of
      the neurological issues, working with him tending to be
      distorted at times or kind of be tangential or a little
      disconnected from reality. I think he would also need to be
      working with somebody who is familiar with offenders,
      because it’s going to be a new environment that presents
      new challenges, risk factors, so we would want somebody
      who would work with him on that. I also think he would
      benefit from some kind of residential placement for a period
      so that he would continue to have some structure, get used
      to being in a new environment before he started moving
      down to more independence.

      Courts must balance the liberty interest of the individual with the

interest of the community on a case-by-case basis. Conditions that are

necessary for the treatment of some individuals may not be for others

and therefore, would be punitive.    See, e.g., Campbell v. Dist. Ct., 577

P.2d 1096, 1098 (Colo. 1978) (en banc). In Campbell, the lower court
                                   16

imposed seven release conditions upon the individual, including a

restriction on his right to possess firearms.       Id.   The test used in

Campbell to review the restrictions requires “that each condition bears a

substantial relation to the petitioner and is tailored to serve the best

interests of both the petitioner and the community in which he will be

released.” Id.

      The court applied this test and found each condition bore a

substantial relation to the interests of the individual and the community.

Id. The court recognized parole boards commonly impose upon criminals

a restriction on possessing firearms, but found the restriction was

necessary for Campbell because it “directly related to the abnormal and

highly dangerous behavior which resulted in the petitioner’s initial

commitment.”     Id.   Notably, the court acknowledged restrictions the

lower court did not impose, but would have gone too far in Campbell’s

situation, are restrictions on his freedom of association, travelling, and

prohibitions on the use of drugs and alcohol. Id.

      Another state has engaged in this situational analysis, finding

some restrictions proper and others improper. An Indiana court stated,

“out-patient commitment must be reasonably designed to protect the

individual as well as the general public.”   Golub v. Giles, 814 N.E.2d

1034, 1041 (Ind. Ct. App. 2004). In applying this standard, the court

found a release condition prohibiting the consumption of alcohol and

drugs was improper as it bore no relationship to the individual’s

treatment or protection of the public. Id. 1041–42; see also Commitment

of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 99 (Ind. Ct. App. 2005)

(reaching the same conclusion).

      We have addressed an analogous situation when assessing

whether a condition of probation was proper.        Cf. State v. Valin, 724
                                   17

N.W.2d 440, 447 (Iowa 2006).      There, the defendant objected to the

requirement that he undergo sex offender treatment as a condition of

probation from a conviction for operating while intoxicated. Id. at 442.

We struck down this provision by finding the DOC failed “to establish the

necessary relationship between the conditions of probation in this case

and either the current needs of rehabilitation of the defendant or the

current protection of the public from the defendant.” Id. at 447–48.

      Due process requires the court to properly balance the interest of

the community against the liberty interest of a person suffering from a

mental abnormality who is not likely to engage in acts of sexual violence

upon release. See Stark, 550 N.W.2d at 468–70. To do this, the district

court must strike the proper balance between the treatment needs of a

person released with supervision and the protection of the public.

      DHS had an obligation under the Code to prepare a report to the

court addressing Matlock’s needs when released with supervision. Iowa

Code § 229A.9A(2).    As such, the State has the burden to prove the

release-with-supervision plan upholds Matlock’s due process rights. The

testimony at the hearing concerning the release-with-supervision plan

did not explain how the proffered plan accomplished this balance.

Moreover, the court failed to include in its order whether the State

proved the release-with-supervision plan accomplished this balance,

which is a necessary step for the court when adopting a release-with-

supervision plan.

      Our review of Matlock’s release-with-supervision plan leads us to

find the plan is more consistent with a person just paroled from prison or

on probation, not a person released from a civil commitment.           An

example of this is the requirement Matlock sign the “First Judicial

District Department of Correctional Services Probation Agreement”
                                    18

normally signed by convicted criminals, and abide by its term on release.

Without supporting testimony, many of the conditions in the agreement

appear to bear no relationship to Matlock’s treatment or the protection of

the public.
      The testimony at the hearing focused on the treatment aspects of
the plan.     The DOC acknowledged it has never supervised a person
released with supervision from CCUSO and it is supervising Matlock as it
would any other sex offender released from prison.
      Matlock is not a person released from prison.        Rather he is an
individual who the court released from a civil commitment with
supervision.    We understand this release does not mean he is not a
threat to the community.     As we have previously stated when dealing
with a person found not guilty by reason of insanity: “The nagging factual
question is ‘Will he do it again?’ But because we are judges, not oracles,
we are obliged to fix our focus on the statutory and constitutional criteria
guiding commitment decisions.” Huss, 666 N.W.2d at 163. Therefore,
the district court must make sure the release-with-supervision plan
balances Matlock’s liberty interest against the interest of the community.
      Accordingly, it is necessary to remand the case back to the district
court to review the release-with-supervision plan to ensure it is not
punitive in nature.     The court should not rubber stamp the plan
presented by DHS, nor is it required to set the least restrictive conditions
of supervision. Rather, it needs to exercise its independent judgment to
ensure the plan comports with due process by balancing the liberty
rights of Matlock against the interest of the community.
      This means each condition must bear a substantial relation to the
interests of the individual and the community.          The court should
remember the goal of the Sexually Violent Predator Act is to provide long-
term care and treatment of sexually violent predators, not punishment.
                                    19

Iowa Code § 229A.1.      The court should tailor any provisions of the
release-with-supervision plan to balance this goal against the interest of
the community.
      On remand, the court should hold an evidentiary hearing on the
plan put forth by the State. Both sides should have the opportunity to
present evidence on which conditions should apply to Matlock. Without
such a hearing, we are unable to review the plan as entered to see if it
satisfies the Due Process Clauses of the Iowa and the United States
Constitutions. In approving a plan with supervision, the court needs to
find the plan as adopted complies with Matlock’s due process rights.
      VII. Conclusion and Disposition.
      We find the statutory scheme found in sections 229A.8 and
229A.9A does not violate the Due Process Clauses of the Iowa or the
United States Constitutions so long as Matlock continues to suffer from a
mental abnormality and the testimony supports the need for supervision
upon release. We do have a concern about the constitutionality of the
release conditions the district court imposed on Matlock because the
record is insufficient for us to determine if the State has proven the plan
comports with Matlock’s due process rights.      Consequently, we affirm
that part of the district court judgment releasing Matlock with
supervision. However, we remand the case back to the district court to
determine if the State proved the terms of supervision are consistent with
the principles of due process under the Iowa and the United States
Constitutions.
      AFFIRMED      IN   PART,    REVERSED      IN   PART,    AND    CASE
REMANDED.
      All justices concur except Zager, J., who concurs in part and
dissents in part.
                                    20
                                            #13–2022, In re Det. of Matlock
ZAGER, Justice (concurring in part and dissenting in part).

      I respectfully concur in part and dissent in part. I agree with the

majority that it does not violate due process to order release with

supervision, pursuant to Iowa Code section 229A.9A, of a person

previously civilly committed as a sexually violent predator.     This, even

after a finding the person is no longer more likely than not to engage in

further predatory acts. I disagree, however, with the majority’s decision

to further address the constitutionality of the specific release conditions

ordered by the district court because that issue is not properly before

this court.   Consequently, I would not remand the case to the district

court but would affirm the judgment of the district court in its entirety.

      The only issue raised on appeal is whether the release-with-

supervision provision found in Iowa’s Sexually Violent Predator Act is

facially invalid under the Due Process Clauses of the Iowa and the United

States Constitutions.     See Iowa Code § 229A.9A (2013); State v.

Hernandez-Lopez, 639 N.W.2d 226, 235 (Iowa 2002) (distinguishing

between facial and as-applied constitutional challenges for purposes of

mootness).    In his brief, Matlock asserts, “The district court order

imposing a period of release with services after a finding that Matlock no

longer suffers a mental abnormality violates his right to due process.”

The brief makes only a passing objection to the breadth of the specific

terms of supervision imposed by the district court. However, in context it

is clear Matlock intends this reference to demonstrate that imposing any

such restrictions constitutes a significant deprivation of liberty. Matlock

makes no argument that the breadth of the release conditions somehow

violates due process. Correspondingly, he offers this court no guidance

as to the parameters of release that would satisfy due process. State v.
                                     21

Iowa Dist. Ct., 828 N.W.2d 607, 619 (Iowa 2013) (Appel, J., dissenting)

(recognizing that lack of briefing and argumentation can lead to problems

in the development of the law and noting that “[o]ur precedents require

us to defer to another day the other issues that the litigants have not

brought to us”). The sole remedy he requests is that we find Iowa Code

section 229A.9A unconstitutional and remand this case to the district

court to order complete discharge; he does not request that we remand

this case to the district court to determine what terms of supervision are

appropriate or meet due process. On its own, the majority now fashions

a protocol that it believes the district court should consider in tailoring

an appropriate release plan. The majority undertakes this task without

the parties requesting that it do so and without the benefit of any briefing

or argument by the parties. See State v. McKinley, ___ N.W.2d ___, ___

n.6 (Iowa 2015) (declining to address nondispositive but important issue

where parties agreed case could be resolved on other grounds and noting

it was appropriate to defer resolution of the issue until such time “we

[are] confront[ed] [by] a case in which it might be dispositive”).

      Additionally, the issue of whether the specific release conditions

imposed by the district court in this case violate due process has not

been properly preserved for our review. “ ‘It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided

by the district court before we will decide them on appeal.’ ” Lamasters

v. State, 821 N.W.2d 856, 862 (Iowa 2012) (quoting Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002)). Our error preservation rules apply

with equal force to constitutional issues. See Taft v. Iowa Dist. Ct., 828

N.W.2d 309, 322 (Iowa 2013) (“Even issues implicating constitutional

rights must be presented to and ruled upon by the district court in order

to preserve error for appeal.”); Hernandez-Lopez, 639 N.W.2d at 233
                                     22

(noting that error preservation rules apply to constitutional issues);

Garwick v. Iowa Dep’t of Transp., 611 N.W.2d 286, 288 (Iowa 2000)

(“ ‘Issues not raised before the district court, including constitutional

issues, cannot be raised for the first time on appeal.’ ” (quoting State v.

McCright, 569 N.W.2d 605, 607 (Iowa 1997))).

      Our error preservation rules serve important purposes. As we have

previously explained,

      [B]ased upon considerations of fairness, . . . this court is not
      ordinarily a clearinghouse for claims which were not raised
      in the district court[.] [I]t is fundamentally unfair to fault the
      trial court for failing to rule correctly on an issue it was
      never given the opportunity to consider. Furthermore, it is
      unfair to allow a party to choose to remain silent in the trial
      court in the face of error, taking a chance on a favorable
      outcome, and subsequently assert error on appeal if the
      outcome in the trial court is unfavorable.

Bill Grunder’s Sons Constr., Inc. v. Ganzer, 686 N.W.2d 193, 197 (Iowa

2004) (alterations in original) (internal quotation marks omitted)).       In

addition to fairness considerations, these rules also serve functions of

judicial economy by “avoiding proceedings that would have been

rendered unnecessary had an earlier ruling on the issue been made.”

Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000).

      In the proceedings before the district court, and as framed in this

appeal, Matlock’s lone argument was that imposing release with services

after a finding that he no longer suffers from a mental abnormality

violates due process.     Specifically, at the annual review hearing in

October Matlock’s counsel argued:

      [I]f the Court decides he’s discharged, then the Court, under
      229A.9A can order release with or without supervision. I
      believe . . . that statute is unconstitutional.

            ....
                                     23
             The only way Mr. Matlock has been held against his
      will for 11 years is because of that mental abnormality . . . .
      [It] has now been found that he no longer has a mental
      abnormality. It is now unconstitutional to . . . deprive him of
      freedom because of 229A, . . . saying that 229A.9A(1)(b) says
      the Court or jury has determined that the person should be
      discharged from the program but the Court has determined
      that it is in the best interests of the community to order
      release with or without supervision before the committed
      person is discharged.

The district court overruled Matlock’s constitutional objection by oral

ruling on the record, which it later confirmed in its written ruling.

      At the subsequent hearing in November, at which the specific

conditions of release were addressed, Matlock reasserted this same

argument:

            Again, we object to the statute that allows the Court to
      impose a release with supervision if the Court finds it is in
      the best interests of the community. . . .

            . . . We have determined in this proceeding that Mr.
      Matlock no longer suffers from a mental abnormality. . . . I
      think everyone would agree that we cannot initially commit
      anyone on the basis of for the best interests of the
      community. That would be a violation of due process.

              In the same respect, we cannot now retain a release
      with supervision plan on him on just that basis alone: It’s a
      violation of due process. . . . [T]he plan that’s contemplated
      could be violated by any numerous violations having nothing
      to do with sexual reoffending and being placed back into the
      facility simply known as CCUSO. For those reasons, any
      release with supervision plan is a violation of his due
      process.

(Emphasis added.)      At this hearing, Matlock only objected to the

imposition of $800 in treatment and supervision fees and to the timing of

the review of his supervision. Specifically, Matlock argued he should be

reviewed in six as opposed to twelve months. Significantly, Matlock did

not assert, or even intimate, that any conditions of his release violated

due process. After hearing, the district court again overruled Matlock’s

constitutional objection in its November 18 order, noting: “Respondent’s
                                       24

counsel     renewed    their   constitutional    objections   to   any   level    of

supervision. The Court took the objections under advisement but now

overrules those objections.” (Emphasis added.)

      The record shows that in the district court proceedings Matlock

never argued that any of the proposed release conditions violated due

process, the district court did not pass on the constitutionality of the

specific release conditions, and Matlock did not file a motion requesting a

ruling in order to preserve error for appeal.             Rather, Matlock’s lone

argument was that the imposition of any conditions of release violates

due process.      There was no argument as to which provisions of the

proposed release plan violated due process.               Counsel’s summary of

Matlock’s argument at the underlying hearing—the same argument he

makes on appeal in both his brief and at oral argument—clearly shows

that Matlock challenged the imposition of any release with supervision

plan, categorically. This is clearly how the district court understood his

argument: “Respondent’s counsel renewed their constitutional objections

to any level of supervision.” (Emphasis added.) Matlock has waived the

issue on appeal.

      I recognize that we have an obligation to construe the law in

resolving    legal   issues    presented    on   appeal    independent   of      any

construction advocated by the parties. But our obligation to do so exists

within the confines of the issues raised by the parties.             See Feld v.

Borkowski, 790 N.W.2d 72, 78 (Iowa 2010) (“Our obligation on appeal is

to decide the case within the framework of the issues raised by the

parties.”). “[I]n the absence of the most cogent circumstances, we do not

create issues . . . .”    Id. at 78 n.4 (collecting cases).        True, we have

previously recognized that we will address issues that are “incident to” a

determination of other issues properly presented. See Messina v. Iowa
                                     25

Dep’t of Job Serv., 341 N.W.2d 52, 58, 61 (Iowa 1983) (addressing issue

of whether plaintiff had contractually waived his First Amendment rights

when defendant had not raised that issue before the district court and

holding “the waiver issue may be determined as an incident to the

expressed issue”); Presbytery of Se. Iowa v. Harris, 226 N.W.2d 232, 234

(Iowa 1975); see also State v. Lyle, 854 N.W.2d 378, 382–83 (Iowa 2014)

(recognizing that categorical constitutional challenge was “fundamentally

similar” to as-applied constitutional challenge initially raised on appeal).

However, this exception to our error preservation rules is rarely invoked

and ill developed.    See Thomas A. Mayes & Anuradha Vaitheswaran,

Error Preservation in Civil Appeals in Iowa: Perspectives on Present

Practice, 55 Drake L. Rev. 39, 50 (2006) (“It is not, however, entirely clear

what ‘incident to a determination of other issues properly presented’

actually means.”     (Footnote omitted.)   (quoting Harris, 226 N.W.2d at

234)). Compare Feld, 790 N.W.2d at 78 n.4 (declining to address issue

not presented by the parties), with Feld, 790 N.W.2d at 84 (Appel, J.,

dissenting) (concluding issue not presented by the parties was “incident

to” a determination of properly presented issues because they were

inherently intertwined). In my opinion, the issue of whether any of the

specific release conditions imposed in this case violated due process is

not incident to the issue of whether the imposition of release with

restrictions under the statute is constitutional.    We should leave this

determination for another day.

      The issue has never been framed as a challenge to any specific

restrictions in the release plan.   The parties never requested that we

formulate a test for determining when specific conditions of release

would satisfy due process, or provide the district court with guidance as

to what release conditions would do so. And it is in no way necessary
                                    26

that we resolve this issue in order to address the issue that is properly

presented in this case.   Thus, we should follow our typical practice of

moving the law forward incrementally and wait for a case that requires

us to craft a test for determining when specific conditions of release

violate due process. See State v. Pearson, 836 N.W.2d 88, 99 (Iowa 2013)

(Cady, J., concurring specially) (recognizing value of moving the law

forward on an incremental basis). Preferably, a case in which the parties

ask us to do so and actually brief the issue. See State v. Hoeck, 843

N.W.2d 67, 71 (Iowa 2014) (recognizing value of having a fully developed

record and full briefing before addressing an issue, and noting “it would

be a disservice to [the defendant], the State, and our system of justice to

decide these claims without a thorough vetting of the claims in the

district court”); cf. Lyle, 854 N.W.2d at 383 (“The supplemental briefing

we ordered, combined with the categorical nature of the relief [sought]

also obviates in this narrow circumstance the need for more thorough

briefing in the district court.” (Emphasis added.)). Instead, the majority

today simply identifies an issue it finds problematic, but not raised or

briefed by the parties, and weaves a new legal test out of whole cloth.

      We should reserve this question for a future case where the parties

actually brief and argue it and where error is properly preserved. The

question of whether any of the specific release provisions imposed in this

case violate due process is not so closely intertwined with the question of

whether imposing any release conditions does so, categorically.           We

should not sua sponte attempt to formulate guidelines and parameters

without full briefing and arguments of the parties and other interested

individuals.   After today, without any input from the parties, the ill-

defined “balancing test” to be utilized by the district court is settled.

Because this issue was not raised as part of this appeal, raised before
                                   27

the district court, decided by the district court, and is not an issue we

must necessarily resolve in order to address the issue properly raised in

this appeal, we should not deviate from our normal process of waiting for

a case where an issue is properly presented. I would not decide it here.

Remand to the district court is unnecessary.
