                IN THE SUPREME COURT OF IOWA
                              No. 16–1732

                           Filed April 13, 2018


IN RE THE DETENTION OF NICHOLAS WYGLE,

NICHOLAS WYGLE,

      Appellant.


      Appeal from the Iowa District Court for Butler County, DeDra

Schroeder, Judge.



      A person subject to commitment under the Sexually Violent

Predator Act requests interlocutory review of the denial of his motion to

dismiss   the   civil   commitment   proceedings.      REVERSED     AND

REMANDED WITH DIRECTIONS.



      Michael H. Adams, Chief Public Defender, for appellant.



      Thomas J. Miller, Attorney General, and Tyler J. Buller and

Keisha F. Cretsinger, Assistant Attorneys General, for appellee.
                                       2

APPEL, Justice.

      In this case, Nicholas Wygle appeals a district court’s denial of his

motion to dismiss the State’s petition for his civil commitment as a

sexually violent predator (SVP) under Iowa Code chapter 229A (2016).

Wygle had been previously convicted of assault with intent to commit

sexual abuse.     At the time the State initiated the civil commitment

proceedings, Wygle had discharged his sentence for his underlying

sexual offense but was residing at the Curt Forbes Residential Facility

while serving a special sentence under Iowa Code chapter 903B.

      The State makes no claim that Wygle committed a recent overt act,

a requirement required for civil commitment under Iowa Code chapter

229A.4(2). The sole issue in this case is whether Wygle, by virtue of his

residency at Curt Forbes Residential Facility pursuant to Iowa Code

chapter 903B, is “presently confined” under Iowa Code section 229A.4(1)

and thus qualifies for SVP commitment under this section of the statute.

      For the reasons expressed below, we conclude that Wygle is not

“presently confined” under Iowa Code section 229A.4(1), and as a result,

the State cannot commence an SVP proceeding in the absence of a recent

overt act, as required under Iowa Code section 229A.4(2). We therefore

reverse the decision of the district court and remand the case with

directions to dismiss the complaint.

      I. Factual Background and Proceedings.

      In July 2012, Wygle was convicted of assault with intent to commit

sexual abuse.      The district court sentenced Wygle to serve an

indeterminate term of incarceration not to exceed two years. In addition,

the district court sentenced Wygle to serve a ten-year special sentence

pursuant to Iowa Code chapter 903B. On August 7, 2015, Wygle was

released from prison after having discharged his sentence on the assault
                                        3

with intent to commit sexual abuse charge. Wygle remained, however,

subject to the ten-year special sentence under Iowa Code section 903B.

Upon his release from prison, Wygle boarded a commercial bus and

travelled to a residential facility in Marshalltown.           From there, he

transferred to the Curt Forbes Residential Facility in Ames.

      On March 14, 2016, the State filed a petition to have Wygle civilly

committed as a sexually violent predator under Iowa Code chapter 229A.

At the time the petition was filed, Wygle was residing at the Curt Forbes

Residential Facility. The district court found probable cause pursuant to

Iowa Code section 229A.5(2) and ordered a trial.

      On August 30, Wygle filed a motion to dismiss because he was no

longer “presently confined” under Iowa Code chapter 229A.4(1) and the

State had not alleged a recent overt act that might otherwise support a

section 229A.4(2) proceeding. The district court denied the motion.

      Wygle filed an application for interlocutory appeal which we

granted. For the reasons expressed below, we conclude the district court

erred in not dismissing the petition.

      II. Standard of Review.

      This case involves a question of statutory interpretation. Review is

for errors at law. In re Det. of Geltz, 840 N.W.2d 273, 275 (Iowa 2013).

      III. Discussion.

      A. Introduction.    Iowa Code chapter 229A governs petitions for

commitment of sexually violent predators.           Iowa Code section 229A.4

“plots two separate courses” of civil commitment. In re Det. of Shaffer,

769 N.W.2d 169, 173 (Iowa 2009).            First, the state may file a petition

when the person is “presently confined” for a sexually violent offense.

Iowa Code § 229A.4(1).    Second, the state may file a petition when a

person has committed a recent overt act under certain circumstances.
                                      4

Iowa Code § 229A.4(2); see In re Det. of Gonzales, 658 N.W.2d 102, 104–

05 (Iowa 2003) (stating that the “confinement” referenced in the statute

“means confinement for a sexually violent offense”).

      The sole issue in this case is whether under the facts and

circumstances Wygle was “presently confined” under Iowa Code section

229A.4(1).   As we have recently noted, although due process generally

requires a recent overt act to support the drastic depravation of liberty

that results from a civil commitment, it is not necessary for the state to

allege a recent overt act under this section. In re Det. of Stenzel, 827

N.W.2d 690, 693 (Iowa 2013).

      B. Constitutional Context of Overt-Act Requirement for Civil

Confinement Based on Dangerousness.             Preventive detention is very

limited in American law because it is seen as antithetical to fundamental

liberty interests and the presumption of innocence. As Justice Jackson

noted over half a century ago in Williamson v. United States,

“Imprisonment to protect society from predicted but unconsummated

offenses is so unprecedented in this country and so fraught with danger

of excesses and injustice that I am loath to resort to it . . . .” 184 F.2d

280, 282 (2d Cir. 1950).

      Further, our legal tradition has emphasized that involuntary civil

commitment is a “massive curtailment of liberty,” Humphrey v. Cady,

405 U.S. 504, 509, 92 S. Ct. 1048, 1052 (1972), and a “grievous loss,”

Vitek v. Jones, 445 U.S. 480, 488, 100 S. Ct. 1254, 1261 (1980).            As

Justice Kennedy has observed, “[I]ncarceration of persons is . . . one of

the most feared instruments of state oppression and . . . freedom from

this restraint is essential to the basic definition of liberty in the Fifth and

Fourteenth Amendments.”        Foucha v. Louisiana, 504 U.S. 71, 90, 112

S. Ct. 1780, 1791 (1992) (Kennedy, J., dissenting).        In addition to the
                                          5

dramatic deprivation of liberty, cases have noted the social stigmatization

that arises from involuntary commitment. See Addington v. Texas, 441

U.S. 418, 425–26, 99 S. Ct. 1804, 1809 (1979); Stamus v. Leonhardt, 414

F. Supp. 439, 449 (S.D. Iowa 1976); Godwin v. State, 593 So. 2d 211,

214 (Fla. 1992); In re Det. of Harris, 654 P.2d 109, 111 (Wash. 1982) (en

banc).

         “Courts have traditionally been the protector of individual rights

against     state    power . . . .”   David    L.   Bazelon,     Institutionalization,

Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897,

910 (1975). Given the truly weighty interests at stake, the power of the

state to involuntarily commit individuals is subject to due process

protections. The United States Supreme Court has repeatedly held that

the Due Process Clause of the United States Constitution contains a

substantive component that bars certain arbitrary, wrongful government

actions “regardless of the fairness of the procedures used to implement

them.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990)

(quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665

(1986)); see James W. Ellis, Limits on the State’s Power to Confine

“Dangerous” Persons: Constitutional Implications of Foucha v. Louisiana,

15 U. Puget Sound L. Rev. 635, 644–45 (1992).

      In     order    to   narrowly   limit   the   scope   of    involuntary    civil

commitments to situations involving nonspeculative danger and satisfy

the demands of due process, many courts in the past have required the

state to show an overt act, attempt, or threat. For instance, in Stamus,

the federal district court held that the lack of an overt-act requirement

was a factor in finding an Iowa involuntary hospitalization statute

unconstitutional on due process grounds. 414 F. Supp. at 450–51; see

also Suzuki v. Yuen, 617 F.2d 173, 178 (9th Cir. 1980); Doremus v.
                                      6

Farrell, 407 F. Supp. 509, 514–15 (D. Neb. 1975); Lynch v. Baxley, 386 F.

Supp. 378, 391 (M.D. Ala. 1974).             The rationale for an overt-act

requirement is that the present “dangerousness” required for civil

commitment is an amorphous concept that must be supported by some

concrete,   individualized    evidentiary    showing   to   prevent   arbitrary

confinement. See In re Kochner, 662 N.W.2d 195, 202 (Neb. 2003) (“The

recent violent act requirement is meant as a safeguard to ensure that the

liberty of the subject is not unjustly restrained.”); see also Reed Groethe,

Overt Dangerous Behavior as a Constitutional Requirement for Involuntary

Civil Commitment of the Mentally Ill, 44 U. Chi. L. Rev. 562, 574–79

(1977).

      Beginning in the 1990s, states began to enact SVP-type statutes.

See John Q. La Fond, The Costs of Enacting a Sexual Predator Law, 4

Psychol. Pub. Pol’y & L. 468, 474 (1998). Unlike the usual general civil

commitment statutes, the new SVP statutes often did not require that an

individual have a “mental illness,” but only a “mental abnormality.” See

Kaitlyn Walsh, Note, Antisocial Personality Disorder and Donald DD.:

Distinguishing the Sex Offender from the Typical Recidivist in the Civil

Commitment of Sex Offenders, 44 Fordham Urb. L.J. 867, 884 (2017).

Further, the statutes required the state to show various formulations of

dangerousness in order to commit an individual as a sexually violent

predator.     See   Deirdre    M.   Smith,    Dangerous     Diagnosis,   Risky

Assumptions, and the Failed Experiment of “Sexually Violent Predator”

Commitment, 67 Okla. L. Rev. 619, 661 (2015) [hereinafter Smith].

      SVP statutes were attacked as arbitrary on several grounds. First,

many critics found the concepts of mental abnormality or mental

disorder to be “so vague and broad that it excludes almost no one.”

Eric S. Janus, Closing Pandora’s Box: Sexual Predators and the Politics of
                                     7

Sexual Violence, 34 Seton Hall L. Rev. 1233, 1237 (2004) [hereinafter

Janus]; see, e.g., Grant H. Morris, The Evil That Men Do: Perverting

Justice to Punish Perverts, 2000 U. Ill. L. Rev. 1199, 1206–07 (2000);

Stephen J. Morse, Fear of Danger, Flight from Culpability, 4 Psychol. Pub.

Pol’y & L. 250, 265 (1998).

      Second, the ability to link the mental abnormality with future

behavior is fraught with difficulty. See Smith, 67 Okla. L. Rev. at 674–76

(describing absence of strong correlation between diagnosis of a

pedophilia or paraphilia with acts of sexual violence).

      Third, and more generally, predicting future behavior is said to be

extremely difficult.   Melissa Hamilton, Public Safety, Individual Liberty,

and Suspect Science: Future Dangerousness Assessments and Sex

Offender Laws, 83 Temp. L. Rev. 697, 726–31 (2011) [hereinafter

Hamilton, Public Safety] (describing the scientific problems with several

actuarial assessment models, noting that a meta-analyses of studies at

best show actuarial models to be less than “moderately predictive”); Lisa

Kavanaugh,     Note,    Massachusetts’s    Sexually   Dangerous    Persons

Legislation: Can Juries Make a Bad Law Better?, 35 Harv. C.R.-C.L. L.

Rev. 509, 512 (2000) (“Most mental health professionals agree, however,

that advances in actuarial techniques have not yet significantly improved

their ability to predict long-term future dangerousness, which is the

centerpiece of most civil commitment schemes.”); Smith, 67 Okla. L. Rev.

at 675 (“Psychiatrists have long rejected the notion that they have a

special ability to predict future behavior, particularly dangerous

conduct.”).   It has been claimed, for instance, that the predictions of

experts are little better than chance. See Smith, 67 Okla. L. Rev. at 700

(citing Rebecca L. Jackson et al., The Adequacy and Accuracy of Sexually

Violent Predator Evaluations: Contextualized Risk Assessment in Clinical
                                     8

Practice, 3 Int’l J. Forensic Mental Health 115, 124 (2004)); see also Erica

Beecher-Monas & Edgar Garcia-Rill, Danger at the Edge of Chaos:

Predicting Violent Behavior in a Post-Daubert World, 24 Cardozo L. Rev.

1845, 1860 (2003).

      In recent years, there has been a trend in SVP cases away from

expert testimony based on clinical judgment in favor of expert testimony

based, at least in large part, upon an assessment of actuarial risk. See

Marcus T. Boccaccini et al., Field Validity of the STATIC-99 and MNSOST-

R Among Sex Offenders Evaluated for Civil Commitment as Sexually

Violent Predators, 15 Psychol. Pub. Pol’y & L. 278, 278–79 (2009). These

new tools, however, have been subject to substantial criticism.         For

example, the STATIC-99 is based on a relatively small baseline statistical

sample of a little over1000 offenders from Canada and England who were

released from maximum security or mental health facilities. Id. at 280;

Leslie Helmus et al., Reporting Static-99 in Light of New Research on

Recidivism Norms 1 (2009), http://www.static99.org/pdfdocs/forum_arti

cle_feb2009.pdf. Critics have charged that the lack of a representative

baseline for comparison of American offenders released from a variety of

settings or who simply engaged in a recent overt act is problematic. See

Hamilton, Public Safety, 83 Temp. L. Rev. at 730 (“If the second

population differs in any risk-relevant way from the reference group, then

the predictive result is invalid.”); see also John A. Fennell, Punishment by

Another Name: The Inherent Overreaching in Sexually Dangerous Person

Commitments, 35 New Eng. J. on Crim. & Civ. Confinement 37, 59 (2009)

[hereinafter Fennell] (finding baseline of STATIC-99 nonrepresentative

because, among other things, the rate of sexual assault in Canada is

more than twice that of the United States and concluding models

overstate risk).
                                            9

       Further, even taking the STATIC-99 at face value, there are many

false negatives and positives. Critics point out that the error rate for the

STATIC-99 is much higher than that ordinarily associated with risk

prediction research. Hamilton, Public Safety, 83 Temp. L. Rev. at 727.

In addition, critics note that the correlation coefficient—a metric showing

the strength of the correlation between two variables—for the STATIC-99

is very low and even for high risk offenders the STATIC-99’s performance

is “not much better than a coin flip.” Fred S. Berlin et al., The Use of

Actuarials at Civil Commitment Hearings to Predict the Likelihood of Future

Sexual Violence 4, 6 (2003), https://www.researchgate.net/publication/

9043223_The_Use_of_Actuarials_at_Civil_Commitment_Hearings_to_Pred

ict_the_Likelihood_of_Future_Sexual_Violence. 1                According     to   Judge

Richard Posner, even advocates of the STATIC-99 only claim moderate

predictive accuracy, and that while the actuarial approach “may be more

accurate than clinical assessments, . . . that may not be saying much.”

United States v. McIlrath, 512 F.3d 421, 425 (7th Cir. 2008); see

Hamilton, Public Safety, 83 Temp. L. Rev. at 739.

       Finally, the lack of meaningful treatment and the potential of long-

term confinement without an end in sight has also drawn criticism.
According to one commentator, “it is far better to be punished than to be


       1The  body of literature questioning actuarial assessments of SVPs is substantial.
For a representative view, see Jessica M. Eaglin, Constructing Recidivism Risk, 67
Emory L.J. 59, 122 (2017) (“More caution and nuance is necessary in approaching the
use of recidivism risk tools in the administration of criminal justice.”); Fennell, 15 New
Eng. J. on Crim. & Civ. Confinement at 61 (stating laws relying on actuarial tools ask
science to “perform a task it cannot reliably perform”); Melissa Hamilton, Adventures in
Risk: Predicting Violent and Sexual Recidivism in Sentencing Law, 47 Ariz. St. L.J. 1, 61
(2015) (“To the extent that sentencing includes utilitarian concerns involving future
risk, science cannot save the legal system from a heavy measure of uncertainty.”); and
Hamilton, Public Safety, 83 Temp. L. Rev. at 754 (supporting a ban on use of actuarial
tools because of significant problems and lack of legal criteria to guide their use).
                                      10

treated.”   Jeremiah W. White, Note, Is Iowa’s Sexual Predator Statute

“Civil”? The Civil Commitment of Sexually Violent Predators After Kansas

v. Crane, 89 Iowa L. Rev. 739, 774 (2004) (quoting Fred Cohen, The Law

and Sexually Violent Predators—Through the Hendricks Looking Glass, in

The Sexual Predator: Law, Policy, Evaluation and Treatment 1–5 (1999)).

      Largely   for   the    above   reasons,    the   American   Psychiatric

Association (APA) and the American Bar Association (ABA) have opposed

SVP statutes. The APA has strongly opposed enactment of SVP statutes

because of the role assigned to psychiatric expertise to identify those who

should be committed.        In an amicus brief before the United States

Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072

(1997), the APA challenged the breadth of SVP statutes, stated that

mental health professionals lack the ability to predict future violence

with accuracy, argued the term “mental abnormality” is a circular

concept when defined as a pattern of abnormal acts, and stated that

current treatments for SVPs have so little chance of being effective that

confinement under an SVP statute is effectively permanent.          Brief for

American    Psychiatric     Association    as   Amicus   Curiae   Supporting

Respondent, Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (Nos. 95–1649,

95–9075), 1996 WL 469200, at *18–19, 24, 28–29.

      Similarly, in Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383

(1983), the APA filed an amicus brief questioning the value of expert

testimony predicting future behavior in a death penalty case. Brief for

American    Psychiatric     Association    as   Amicus   Curiae   Supporting

Petitioner, Barefoot, 463 U.S. 880, 103 S. Ct. 3383 (No. 82-6080), at *4.

As recounted in Justice Blackman’s dissent, according to the APA,

approximately two out of three predictions by psychiatrists of long-term

future dangerousness were erroneous. Barefoot, 463 U.S. at 920, 103
                                     11

S. Ct. at 3408 (Blackmun, J., dissenting). Justice Blackmun wondered

how juries could separate valid from invalid expert opinions “when the

‘experts’ themselves are so obviously unable to do so.” Id. at 929, 103

S. Ct. at 3413.

       The ABA opposed SVP statutes in its Criminal Justice Mental

Health Standards.    Specifically, standard 7-10.7 provides that once a

sentence has expired, commitment may occur only under a general

commitment statute and calls for repeal of all statutes that provide for

postsentence commitment of offenders using criteria that differ from the

general civil commitment criterial. Christopher Slobogin, The American

Bar Association’s Criminal Justice Mental Health Standards: Revisions for

the Twenty-First Century, 44 Hastings Const. L.Q. 1, 16 (2016); see also

In re Blodgett, 510 N.W.2d 910, 920 n.5 (Minn. 1994) (noting that the

ABA had urged that sexual psychopath laws be repealed due to problems

with the ability of psychiatrists to diagnosis and treat such individuals).

       Given the interests at stake and the problems implementing SVP

statutes, it is not surprising that the Kansas Supreme Court and a

federal district court came to the conclusion that SVP statutes did not

pass constitutional muster.    In re Care & Treatment of Hendricks, 912

P.2d 129, 138 (Kan. 1996), rev’d sub nom. Hendricks, 521 U.S. 346, 117

S. Ct. 2072; Young v. Weston, 898 F. Supp. 744, 751 (W.D. Wash. 1995).

In Young, the Washington State Psychiatric Association submitted an

amicus brief arguing that the notion of a “sexually violent predator” is

not a medical concept but an “unacceptable tautology.” 898 F. Supp. at

750.

       Notwithstanding the opposing of the APA and ABA, the United

States Supreme Court, by a 5–4 margin, upheld the Kansas SVP statute

in Hendricks, 521 U.S. 346, 117 S. Ct. 2072. Justice Thomas concluded
                                    12

that the term “mental abnormality” was sufficiently narrow to satisfy due

process even though it did not amount to a mental illness as previously

required for civil commitment in the Court’s precedents Addington and

Foucha. Hendricks, 521 U.S. at 358–60, 117 S. Ct. at 2080–81; see id. at

374, 117 S. Ct. at 2088 (Breyer, J., dissenting).    In a cautionary and

arguably prescient concurring opinion, however, Justice Kennedy

emphasized that if the term “mental abnormality” proved to be too

imprecise, the precedents of the Court “would not suffice to validate it.”

Id. at 373, 117 S. Ct. at 2087 (Kennedy, J., concurring).

      The United States Supreme Court again considered a challenge to

the Kansas SVP statute in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867

(2002). In an opinion by Justice Breyer, the Supreme Court emphasized

that SVP statutes must distinguish between “the dangerous sexual

offender whose serious mental illness, abnormality, or disorder subjects

him to civil commitment, and the dangerous but typical recidivist

convicted in an ordinary criminal case.” Id. at 413, 122 S. Ct. at 870. As

in Hendricks, the Supreme Court emphasized the need to identify a

narrow class of persons subject to SVP commitment.          See id.   Crane

seems to assume that it would be possible for a fact finder to

meaningfully distinguish a true predator from an ordinary recidivist.

      Some might conclude that if a high authority declares a statute to

be narrow often enough, it must be so. But there is reason to believe

that because of the amorphous standards and community fear,

fact finders are not able to identify a narrow class of persons subject to

SVP commitment. The numbers of persons committed have grown far

larger than anticipated.   Janus, 34 Seton Hall L. Rev. at 1251.         In

practice, much as Justice Kennedy cautioned, the narrow legal stiletto

may be something of a blunderbuss.
                                        13

        As a result, and notwithstanding Hendricks and Crane, the overt-

act     requirement   still   has   a   role    to   play   in   considering   the

constitutionality of SVP statutes. The overt-act requirement serves as a

reinforcing mechanism or a spine for the spongy concept of “mental

abnormality” and the speculative nature of causation in any individual

case.     The overt-act requirement, though not necessarily perfect,

certainly has a winnowing effect and contributes to distinguishing a

sexual predator from an ordinary recidivist. If not for a clear showing of

current dangerousness by an overt act, SVP commitment would look a

lot more like punishment and a lot less like civil commitment, thereby

giving rise to double jeopardy and ex post facto difficulties. The narrow

class of persons subject to SVP commitment should not be identified in a

speculative numbers game. It must be based on proof of individualized

danger.

        The Washington Supreme Court held in In re Personal Restraint of

Young that the recent overt-act requirement is generally mandated by

due process because the state must show current dangerousness. 857

P.2d 989, 1008 (1993) (en banc), superseded by statute on other grounds,

Wash. Rev. Code Ann. §§ 71.09.020, .090–.098 (West), as recognized in In

re Det. of Thorell, 72 P.3d 708, 720–21 (2003) (en banc). The Young court

has further held that when an individual is incarcerated for violation of

their release into community placement, due process requires the state

allege and prove a recent overt act.           Id. at 1009; see also In re Det.

Albrecht, 51 P.3d 73, 78 (Wash. 2002) (en banc).

        While a recent overt act is generally required in Washington, there

is an exception for situations where the offender is presently incarcerated

for sex crimes. Young, 857 P.2d at 1009. The rationale for this approach

was outlined in People v. Martin, 165 Cal. Rptr. 773, 780 (Ct. App. 1980).
                                     14

In Martin, a California appellate court observed that the state was not

required to prove the absurd, namely, that a recent overt act occurred,

when the offender had been incarcerated. Id.

      But as noted in a concurring opinion in In re Detention of Fair, the

absurdity of requiring a recent overt act can be overstated. 219 P.3d 89,

96–97 (Wash. 2009) (en banc) (Fairhurst, J., concurring).       In Fair, an

individual was convicted of sex crimes against children. Id. at 97. When

incarcerated, the individual had literally no access to children, and thus

he had no opportunity to engage in an overt act because there were no

potential victims. Id. But, as pointed out by Justice Fairhurst in her

concurring opinion, the absurdity doctrine does not always apply simply

because a person is incarcerated.      Id.   Justice Fairhurst persuasively

argued that if it can be proved that the alleged SVP’s diagnosis and

pattern of behavior indicates that the individual did have an adequate

opportunity while incarcerated to commit a recent overt act against the

type of victim the individual was predisposed to victimize, an overt act

might be required. Id. For example, Justice Fairhurst noted that a male

prisoner serving time for raping an adult male victim could be placed in

the general population of the prison where there is opportunity to harm

other prisoners.    Id. at 97 n.2.     Under this circumstance, Justice

Fairhurst noted, due process would require an overt act before such a

prisoner could be committed as an SVP. Id. at 97 & n.2.

      The bottom line is SVP statutes threaten to deprive individuals of

what from time immemorial has been the weightiest of interests—the

interest in individual liberty.   Yet, the vague and flexible standards of

SVP statutes allows, if not encourages, a better-safe-than-sorry approach

that tolerates false positives but abhors false negatives. Further, in order

to survive due process scrutiny, the SVP statutes are said to target a
                                    15

narrow class of persons, but the terms utilized are sufficiently vague and

the causation elements sufficiently doubtful that there must be some

other limiting concept if fact finders are going to be able to distinguish

between sexual predators and ordinary recidivists. The overt-act element

in SVP statutes like Iowa’s serves that function.

      C. Overview of Relevant Iowa Code Provisions Related to SVP

Confinement and Special Sentences.

      1. Relevant provisions of Iowa Code chapter 229A. Iowa’s Sexually

Violent Predator Act was enacted in 1998.       1998 Iowa Acts ch. 1171

(codified at Iowa Code chapter 229A (1999)).        Similar SVP committal

statutes were enacted in about twenty states and federally, beginning

with Washington state in 1990.        See Isaac D. Buck, The Indefinite

Quarantine: A Public Health Review of Chronic Inconsistencies in Sexually

Violent Predator Statutes, 87 St. John’s L. Rev. 847, 848 & n.8, 851–54

(2013).

      While the “presently confined” language that forms the basis of this

appeal is found in a discreet provision of Iowa Code section 229A.4(1)

(2016), a review of the SVP chapter provides context.       In addition to

outlining the structure of the statute, we review statutory language

related to “commitment,” “custody,” and “prison” to help us set the

framework for determining the meaning of “presently confined” in Iowa

Code section 229A.4(1). See Iowa Ins. Inst. v. Core Grp. of Iowa Ass’n for

Justice, 867 N.W.2d 58, 72 (Iowa 2015) (holding “we read statutes as a

whole rather than looking at words and phrases in isolation”).

      Chapter 229A begins with a lengthy section describing legislative

findings supporting the statute.    Iowa Code § 229A.1.     The legislative

findings emphasize the limitations of services provided “in a prison

setting” and that the modalities of treatment available in a prison setting
                                     16

are different from those needed for rehabilitating sexually violent

predators.    Id.    While section 1 of the chapter does not prove a

legislatively enforceable command, it certainly provides mood music for

the interpretation of the SVP statute with a theme emphasizing the

limited impact of prison on the rehabilitation of sexually violent

predators.

      Section 2 of the SVP statute provides several legislatively crafted

definitions. Id. § 229A.2. Unfortunately there is no statutory definition

of the term “presently confined” as utilized in section 4 of the statute.

The definition section does provide a definition of a “sexually violent

predator” as a person “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(12).   The

definitional section of chapter 229A further provides that if a person is

not “confined” at the time of the filing of a petition, the person may be a

sexually violent predator “only if the person commits a recent overt act.”

Id. § 229A.2(5).

      The definitional section distinguishes between confinement in a

secure facility and transitional release.   Id. § 229A.2(13).   The statute

provides that “transitional release” means “a conditional release from a

secure facility.    Id.   Thus, transitional release and confinement in a

secure facility are not the same thing.

      Section 3 of the SVP statute is a notice provision.        Section 3

requires that “agenc[ies] with jurisdiction” provide notice to the attorney

general and a multidisciplinary team established by the department of

corrections ninety days prior to the “anticipated discharge” of a person

who has been convicted of a sexually violent offense “from total
                                     17

confinement.” Id. § 229A.3(1)(a). An exception to the ninety-day-notice

requirement allows written notice to be given as soon as practicable

when a person has been returned “to prison” for no more than ninety

days as a result of revocation of parole. Id. In this situation, written

notice shall be given as soon as practicable following the person’s

“readmission to prison.” Id.

      Section 3 of the statute is the only provision in the statute to use

the term “total confinement.”      It is not used in Iowa Code section

229A.4(1).    Yet, it is clear that the legislature contemplated that

anticipated discharge from total confinement was a potential trigger of an

SVP proceeding.     The contemplated SVP proceeding in the section 3

notice provision was not likely one resulting from the recent-overt-act

prong of section 229A.4(2), because the concept of notice of anticipated

discharge from total confinement does not have any meaning in the

context of a petition based on a “recent overt act.”

      Section 3 provides that the statutorily required notice must be

provided by an agency with jurisdiction.      Id. § 229A.3(1).   An “agency

with jurisdiction” is defined as

      an agency which has custody of or released a person serving
      a sentence or term of confinement or is otherwise in
      confinement based upon a lawful order or authority, and
      includes but is not limited to the department of corrections,
      the department of human services, a judicial district
      department of correctional services, and the Iowa board of
      parole.

Id. § 229A.2(1).

      Once the proper notice has been provided, the multidisciplinary

team is directed to assess whether or not the person meets the definition

of an SVP and to notify the attorney general of its assessment within

thirty days of receiving notice. Id. § 229A.3(4). The attorney general is
                                    18

directed to appoint a prosecutor’s review committee and to review the

SVP determination of the multidisciplinary team with the committee’s

assistance. Id. § 229A.3(5). We have held that this notice to the attorney

general is not an essential step in the filing of an SVP petition, because

the notice “is only intended to be a heads-up to an approaching

discharge date in case a determination to file a section 229A.4(1) petition

appears to be a possibility.” In re Det. of Huss, 688 N.W.2d 58, 63 (Iowa

2004).

       Section 4 of the statute contains the gateway language to a petition

for commitment under the SVP statute, the interpretation of which

provides the fighting issue in this appeal. Section 4 provides a two-track

approach to SVP commitment. The first track is provided by Iowa Code

section 229A.4(1). Under Iowa Code section 229A.4(1), the state may file

a petition alleging that a person who is “presently confined” is a “sexually

violent predator.” The language of the “presently confined” track in Iowa

Code section 229A.4(1) does not contain a requirement of a recent overt

act.

       The next subsection of section 4 provides the second track leading

to a potential SVP commitment.      Iowa Code § 229A.4(2).     Under Iowa

Code section 229A.4(2), the state may file a petition alleging that a

person is a sexually violent predator “if it appears that a person who has

committed a recent overt act” meets any one of three statutory criteria.

Id. § 229A.4(2).   The three statutory criteria are where the person

(1) “was convicted of a sexually violent offense and has been discharged

after the completion of the sentence imposed for the offense,” (2) was

charged with a sexually violent offense but acquitted by reason of

insanity and “has been released from confinement or any supervision,” or

(3) was charged with a sexually violent crime but was found incompetent
                                      19

to stand trial, and “has been released from confinement or any

supervision.” Id.

        The first statutory criteria under section 229A.4(2) is most relevant

here.    In order for the recent-overt-act track to be available, a person

must have been “discharged after the completion of the sentence

imposed for the offense.” This provision, when read in conjunction with

the notice provision which emphasizes the “anticipated discharge . . .

from total confinement,” id. § 229A.3(1)(a), appears to establish a route

to commit a person nearing the end of total confinement, and a separate

track for a person who has been “discharged after the completion of the

sentence for the offense, id. § 229A.4(1)–(2).”

        Section 5 of the statute outlines the procedures for making a

preliminary determination as to whether probable cause exists to believe

the person named in the petition is a sexually violent predator.          Id.

§ 229A.5(1). Upon a finding of probable cause, the person named in the

petition shall be “taken into custody.” Id. If the person is in custody at

the time of the filing of the petition, the court is directed to determine

whether the person should be transferred “to an appropriate secure

facility” pending the outcome of the proceedings.      Id. An “appropriate

secure facility” is defined as “a state facility that is designed to confine

but not necessarily to treat a sexually violent predator.” Id. § 229A.2(2).

The probable cause hearing is to be held within seventy-two hours of the

person being taken into custody or transferred to an appropriate secure

facility, but the hearing may be waived by the respondent.                Id.

§ 229A.5(2).

        After the hearing, if the court determines that probable cause does

exist to believe the respondent is a sexually violent predator, the court is

to have the respondent transferred to an appropriate secure facility for
                                    20

an SVP evaluation.    Id. § 229A.5(5).    We have said that at a probable

cause hearing under chapter 229A, “the district court is only making a

preliminary determination that there are sufficient facts in the petition to

form a reasonable belief that the individual is an SVP.”      In re Det. of

Mead, 790 N.W.2d 104, 111 (Iowa 2010).

      Section 5B of the SVP statute deals with “escape from custody.”

Iowa Code § 229A.5B.      For the purposes of the escape provision, a

person is in “custody” if he or she “has been placed in a transitional

release program or . . . is under release with or without supervision.” Id.

§ 229A.5B(1). If a person escapes, the attorney general or the chief law

enforcement officer of the political subdivision where the violation occurs

may make a public announcement if that person remains “unconfined.”

Id. § 229A.5B(3).   This section demonstrates that the legislature was

capable of using broad language of “custody” that expressly included

“release with or without supervision.” Notably, such expansive language

is absent from Iowa Code section 229A.4(1).

      Section 5C of the SVP statute addressed criminal offenses

committed while a person is detained or subject to an order of

commitment. Id. § 229A.5C. If a person commits a public offense while

detained under the SVP chapter, the civil commitment proceedings or

treatment process shall be suspended until the criminal proceedings,

“including any term of confinement,” are completed.       Id. § 229A.5C(1).

Civil commitment proceedings are suspended due to the commitment of

a public offense. Id. Upon the completion of any term of confinement

resulting from the commission of the public offense, a new ninety-day-

trial demand automatically begins. Id. § 229A.5C(5).

      Section 7 of the Act describes the trial of a commitment proceeding

under Iowa Code chapter 229A.            Among other things, the section
                                   21

emphasizes that the rules of evidence applicable in criminal proceedings

shall apply as well as the right to a trial before a jury with a unanimous

verdict beyond a reasonable doubt. Id. § 229A.7(4)–(5).

      Section 229A.8A through section 229A.9B address issues related

to the release of a “committed person.” The statute makes clear that a

person is still considered committed when in a transitional release

program. Id. § 229A.8A(1) (stating the department of human services is

authorized to provide “supervision of committed persons placed in such a

[transitional release] program”); id. § 229A.8A(6) (stating the department

of human services is responsible for “restrictions on confinement and the

movement of committed persons” and for assessing the progress of

“committed persons in the [transitional release] program”).    Further, a

“committed person” who violates a release plan may be taken into

custody and returned to a secure facility.     Id. § 229A.9B(1).   In this

section, the legislature demonstrated its ability to use the term

“committed” rather than “confined” and to define “committed” as

including persons in transitional release programs.

      2. Relevant provisions of Iowa Code chapter 903B.        Iowa Code

chapter 903B provides for a “special sentence” for sex offenders.       A

person who commits certain sexual offenses that are class “C” felonies or

greater is subject to a lifetime special sentence. Id. § 903B.1. A person

who commits certain sexual offenses that are class “D” felonies or

misdemeanors is subject to a ten-year special sentence in addition to any

other punishment provided by law. Id. § 903B.2.

      Chapter 903B distinguishes between a sentence and a special

sentence.   The legislature provided in Iowa Code section 903B.1 that

“[t]he special sentence imposed under this section shall commence upon

completion of the sentence imposed under any applicable criminal
                                     22

sentencing provisions for the underlying criminal offense.” Id. § 903B.1

(emphasis added).    The special sentence is not a continuation of the

sentence for the underlying crime.

      Those serving a special sentence are placed on the corrections

continuum established in chapter 901B for intermediate criminal

sanctions. Id. The intermediate criminal sanctions under chapter 901B

ranges from Level One (self-monitoring, including fines, community

service, mediation, victim and offender reconciliation), Level Two

(probation and parole), Level Three (quasi-incarceration, including

residential treatment facilities and work release facilities), Level Four

(short-term incarceration, including jail), and Level Five (long-term

incarceration). Iowa Code §§ 901B.1–.2.

      D. Positions of the Parties. Wygle concedes that he was serving

a special sentence under Iowa Code chapter 903B while residing at Curt

Forbes Residential Facility. He maintains, however, that this does not

qualify as the “present confinement” under Iowa Code section 229A.4(1).

      Wygle cites the introductory language of Iowa Code section 229A.1

in support of his position. Wygle notes that Iowa Code section 229A.1

declares that the prognosis for rehabilitating sexually violent predators in

a prison setting is poor and that the treatment modalities for sexually

violent predators is very different from those available in a prison setting.

To Wygle, these passages in the introductory section of Iowa Code

chapter 229A suggest that total confinement is required to establish that

the offender is presently confined under Iowa Code section 229A.4(1).

      Wygle further draws support from language in the notice provision

of Iowa Code section 229A.3(1)(a).     According to Wygle, the use of the

terms “total confinement,” “returned to prison,” and “readmission to

prison” in the notice provision of the SVP statute supports his
                                    23

interpretation that the term “presently confined” in Iowa Code section

229A.4(1) refers to total confinement in prison.

       Wygle next analyzes Iowa Code chapter 903B. Upon a violation of

the terms of a special sentence, a revocation of release may be ordered

and the person imprisoned for not more than two years for the first

revocation, and five years for subsequent revocations.         Iowa Code

§ 903B.2. Wygle argues that special sentence in which a person faces

the possibility of imprisonment cannot be considered the same as

imprisonment itself.

       Wygle supplements his argument with a citation to In re Detention

of Lewis, a case decided by the Washington Supreme Court under its

SVP statute. 177 P.3d 708 (Wash. 2008) (en banc). In Lewis, Lewis was

in custody awaiting retrial of a conviction different from the predicate

conviction. Id. at 709. The state sought to commit him as an SVP under

a state statute with a two-track approach similar to Iowa’s statute. Id. at

710.   Lewis alleged that when he was incarcerated on another offense

awaiting trial, the state must prove a recent overt act in order to begin

commitment proceedings under Washington’s SVP statute. Id. at 709.

The court held that Lewis was “about to be released from total

confinement” and, as a result, the state was not required to prove an

overt act. Id.

       Wygle argues that Lewis provides the rationale for the two-track

SVP gateway. Wygle notes that Lewis observed that before a person may

be subject to SVP commitment, a recent overt act is generally required in

order to satisfy due process concerns. Id. at 711. According to Wygle,

Lewis noted that where offenders are incarcerated and have not been in

the community since their original conviction, the state lacks the

opportunity to prove dangerousness with an overt act. Id. Under these
                                      24

circumstances, according to Lewis, the state is not required to prove the

impossible, namely, a recent overt act. Id. Lewis further observed that

the legislature had concluded that “offenders in confinement ‘do not have

access to potential victims and therefore they will not engage in an overt

act.’ ” Id. at 713 (quoting Wash. Rev. Code Ann. § 71.09.010 (West)).

      Under the facts and circumstances of the case, the Lewis court

held that Lewis was “about to be released from total confinement” under

the statute. Id. As a result, the state was not required to prove an overt

act. Id. Wygle argues, however, that his situation is different because,

unlike Lewis, he has, in fact, been released from total confinement and

that a recent overt act is therefore required.        He notes that an

unpublished opinion of the court of appeals has cited Lewis favorably.

See In re Det. of Johnson, No 10–1462, 2012 WL 1860242, at *5 (Iowa Ct.

App. May 23, 2012).

      In response, the State recognizes that the term “presently confined”

is not defined in Iowa Code chapter 229A. The State contrasts, however,

Iowa’s use of the phrase “presently confined” in Iowa Code section

229A.4(1) with statutes from other jurisdictions that employ the more

specific   phrase   “total   confinement.”   See, e.g.,   Fla.   Stat.   Ann.

§ 394.912(11) (West, Westlaw through 2018 2d Reg. Sess.); N.H. Rev.

Stat. Ann. § 135-E:4 (Westlaw through ch. 7 2018 Reg. Sess.). The State

thus reasons that the use of the term “presently confined” rather than

the clearer phrase “total confinement” in Iowa Code section 229A.4(1)

represents a deliberate legislative choice that should be honored by the

courts.

      The State recognizes, however, that the term “total confinement” is

used in the notice provision of Iowa’s SVP statute.              Iowa Code

§ 229A.3(1)(a). Yet, the State observes, the definition section of “agency
                                      25

with jurisdiction”—the party with notice obligations under Iowa Code

section 229A.3(1)(a)—includes the Iowa Board of Parole. Id. § 229A.2(1).

If the Iowa Board of Parole has an obligation to provide notice of the

release of a potential SVP, the State argues, the statute must include

release from parole as a triggering event.      Therefore, according to the

State, the term “presently confined” in Iowa Code section 229A.4(1) must

include release from parole.

      The     State   argues   that   Iowa   caselaw   supports   its   broad

construction of the term “presently confined.” The State notes that in

Shaffer, the court declared that the phrase should not be given a

“hypertechnical definition” and held that a person who was incarcerated

in prison beyond his discharge date was presently confined. 769 N.W.2d

at 174–75. The State further notes that in In re Detention of Willis, the

court held that detention in a county jail is confinement. 691 N.W.2d

726, 729 (Iowa 2005). Thus, according to the State, one need not be in

prison to be considered “presently confined” under the statute.

      Like Wygle, the State directs our attention to what it regards as

persuasive out-of-state authority as well.        In Jackson v. California

Department of Mental Health, the United States Court of Appeals for the

Ninth Circuit held that under California’s SVP law, the statutory

requirement that a person be in custody when a petition is filed includes

situations in which a person is on parole. 318 F App’x 582, 586–87 (9th

Cir. 2009).    The State also cites Kansas authority, which it asserts

stands for the proposition that an SVP action may be brought at any

time when the respondent is serving any part of a sentence, “including a

period of postrelease supervision.” In re Care & Treatment of Sporn, 215

P.3d 615, 618 (Kan. 2009).
                                      26

      Finally, the State claims that public policy supports its position.

The State argues that a person on parole, although less confined than a

person in prison, still has limited opportunities to commit recent overt

acts compared to a person not under state supervision. As a result, the

State asserts we should not require a recent overt act when a person is

on parole for a sexually violent offense.

      E. Relevant Iowa Caselaw.         In Stamus, a federal district court

struck down the civil commitment statute in Iowa Code chapter 229 on

due process grounds because the statute did not require a showing of

dangerousness through a recent overt act.            414 F. Supp. at 451.

Subsequent to Stamus, we have repeatedly held in the civil commitment

context that a recent overt act, attempt, or threat was required to show

that the person is likely, if allowed to remain at liberty, to inflict physical

injury on himself or herself or on others. In In re Mohr, we declared that

because predicting dangerousness was “a difficult if not impossible task,”

a finding of mental illness alone could not be sufficient to justify an

indefinite detention, but must also include a showing of a recent overt

act, attempt, or threat.    383 N.W.2d 539, 542 (Iowa 1986).          In In re

Foster, we emphasized that evidence to support a judgment of

dangerousness supporting a civil commitment must come in the form of

a “recent overt act, attempt or threat.” 426 N.W.2d 374, 377 (Iowa 1988)

(quoting Stamus, 414 F. Supp. at 451).         In State v. Huss, the court

warned that expert speculation about dangerousness grounded in

statistical probabilities cannot justify a commitment absent proof of a

recent overt act. 666 N.W.2d 152, 162–63 (Iowa 2003).

      Our first case considering the meaning of the term “presently

confined” in Iowa Code section 229A.4(1) is Gonzales, 658 N.W.2d 102.

In Gonzales, the respondent had been convicted of a sexually violent
                                       27

offense,   had   discharged    the    sentence     for   that    crime,   but    had

subsequently been sentenced to prison for operating a motor vehicle

without the owner’s consent.         Id. at 102.    The question presented in

Gonzales was whether the term “presently confined” in Iowa Code section

229A.4(1) should be read to mean presently confined for a sexually

violent offense or, in the alternative, should the statute be read to mean

any time a person is presently confined, even for a nonsexual crime like

operating a motor vehicle without the owner’s consent. Id. at 104–05.

        The Gonzales court held that the term “presently confined” meant

presently confined for a sexually violent offense.               Id. at 106.      The

Gonzales court recognized that the legislature did not expressly qualify

the term “presently confined” in Iowa Code chapter 229A.4(1).                   Id. at

104–05. Yet, the Gonzales court reasoned that in order to impose civil

commitment consistent with the constitutional commands of due

process, there generally must be a recent overt act. Id. at 105. When a

person is imprisoned for a sexually violent offense, the recent overt act

could be deemed to be the underlying offense.              Id.     But to allow a

nonsexual act to be deemed to be a recent overt act, according to the

Gonzales court, would “raise serious constitutional issues.”              Id.     The

court    favorably   cited   Stamus    as   recognizing     “the     constitutional

importance of showing a recent overt act” in chapter 229 civil

commitments. Gonzales, 658 N.W.2d at 105. The Gonzales court also

favorably cited the discussion in Mohr, which noted that our rules for

hospitalization of mentally ill persons require a physician’s diagnosis

including “a detailed statement of facts, symptoms and overt acts

observed or described to him or her, which led to the diagnosis.”

Gonzales, 658 N.W.2d at 105 (quoting Mohr, 383 N.W.2d at 542). The

Gonzales court further favorably cited a passage in Lynch, which stated,
                                    28
      A mere expectancy that danger-productive behavior might be
      engaged in does not rise to the level of legal significance
      when the consequence of such an evaluation is involuntary
      confinement. To confine a citizen against his will because he
      is likely to be dangerous in the future, it must be shown that
      he has actually been dangerous in the recent past and that
      such danger was manifested by an overt act, attempt or
      threat to do substantial harm to himself or to another.

Gonzales, 658 N.W.2d at 105 (quoting Lynch, 386 F. Supp. at 391). We

further cited a leading Iowa academic, Professor Randall Bezanson, for

the proposition that

      [t]he requirement that a prediction of dangerousness . . .
      must be based on prior overt manifestations of danger is
      necessary both in order to protect the reliability of the
      prediction under the clear and convincing standard of proof
      . . . and in order to satisfy constitutional standards.

Id. at 106 (quoting Randall P. Bezanson, Involuntary Treatment of the

Mentally Ill in Iowa: The 1975 Legislation, 61 Iowa L. Rev. 261, 295 n.161

(1975)).

      Because the respondent was not “presently confined” for a sexually

violent offense and the state failed to even allege a recent overt act, the

Gonzales court reversed the commitment order of the district court and

remanded the case with instructions to dismiss the action. Id. There

can be little question that the meaning of the term “presently confined”
in the statute was driven in large part by the generally applicable due

process requirement that before a person is civilly committed, there must

be a showing of dangerousness based on recent overt acts.

      Two years later, we returned to the meaning of the term “presently

confined” in Willis, 691 N.W.2d 726.      In that case, Willis had been

convicted by a jury of a sexually violent offense, but not yet been

sentenced.   Id. at 727–28.     He resided in the custody of the Henry

County Sheriff.   Id. at 728.   The state filed an SVP petition asserting

Willis was presently confined for a sexual offense under Iowa Code
                                    29

section 229A.4(1) even though he had not been sentenced for the

underlying offense. Id.

       As in Gonzales, the Willis court analyzed the issue presented by

looking at the larger due process constitutional context of the SVP

statute.   Willis, 691 N.W.2d at 729–30.     The court observed that the

absence of a recent act when in secure confinement “does not paint the

same picture” as the same in a normal life situation. Id. at 729. The

court reasoned that the legislature could conclude that for persons in

secure confinement the underlying sexually violent offense could be

considered a recent overt act consistent with due process. Id. Further,

the filing of an SVP commitment petition must necessarily be delayed

until near the end of confinement for the underlying sexual offense. Id.

at 730.

       Our next SVP case involving whether a person is “presently

confined” under Iowa Code section 229A.4(1) is Shaffer, 769 N.W.2d 169.

In this case, Shaffer was imprisoned at the Anamosa State Penitentiary

for a sexually violent offense when the state filed its SVP petition. Id. at

171. Shaffer argued, however, that the state miscalculated his release

date for the sexually violent offense and that, at the time the state filed

its SVP petition, his sentence had already expired. Id. at 171–72. The

interesting question in Shaffer was whether a person could be considered

presently confined when being held beyond his release date. Id. at 173.

       The Shaffer court answered the question in the affirmative. Id. at

175.   The court reasoned that in Willis the fact that the later judicial

proceedings could have shown the present confinement of Willis to be

unlawful did not matter.      Shaffer, 769 N.W.2d at 174.        The court

observed that although subsequent caselaw demonstrated that the state

had miscalculated Shaffer’s release date, the miscalculation, which was
                                     30

made in good faith, did not alter the fundamental fact that Shaffer, at the

time the SVP petition was filed, was presently confined. Id. at 174. The

implication of Shaffer was that SVP proceedings were designed to provide

a seamless transition for dangerous offenders from being presently

confined for sexually violent offenses to civil confinement and treatment

under the SVP statute.        See id. at 175.   As a result, the physical

circumstances of whether a person was “presently confined” for a

sexually violent offense was key, and the result was not affected by a

miscalculation of a release date. See id.

      Finally, in Stenzel, we considered a case in which the respondent

was convicted of both a sexually violent offense and the nonsexual

offenses of burglary and arson. 827 N.W.2d at 693. The sentence for the

sexually violent offense and the sentence for the nonsexual offenses were

to be served consecutively. Id. Stenzel claimed that he first served his

sentence for the sexually violent offense. Id. Stenzel argued that at the

time the state filed its SVP petition, his sentence for the sexually violent

offense had been discharged and that he was then presently confined as

a result of the nonsexual offenses. Id.

      The Stenzel court rejected the respondent’s arguments. Id. at 701.

The Stenzel court emphasized that in a situation involving concurrent

sentences for sexually violent and nonsexually violent offenses, it was

illogical to try to determine which sentence was first served. Id. at 700–

01.   Further, according to the Stenzel court, it made little sense to

evaluate a person presently committed years before anticipated release.

Id. at 700. The Stenzel court further noted that under Iowa Code section

229A.3(1),   the   attorney   general   and   the   multidisciplinary   team

established in chapter 229A was to receive notice of the anticipated

discharge of a person convicted of a sexually violent offense. Id. at 699.
                                         31

        The Stenzel court cited favorably an out-of-state case, Fair, 219

P.3d 89 (majority opinion).         Stenzel, 827 N.W.2d at 701.         In Fair, the

Washington Supreme Court noted that when a person is in continuous

confinement for sexual and nonsexual offenses, it would be absurd to

require proof of an overt act because of the lack of opportunity to commit

an overt act in the community. 219 P.3d at 92.

        Obviously, the above cases do not directly address the question of

whether a person is presently confined when residing at a halfway house

pursuant to a special sentence under Iowa Code chapter 903B.                         The

cases do stand for the general propositions, however, that we construe

the phrase “presently confined” in context with the larger statutory

framework and seek to provide it with a practical gloss that recognizes

both the underlying purposes of the statute and the due process

dimension underlying the ordinary requirement of a recent overt act to

support involuntary civil commitment.

        F. Cases     from     Other    Jurisdictions.          Cases    from        other

jurisdictions have addressed the question of what showing must be made

before a person may be civilly committed because of dangerousness.

        As noted previously, many states have enacted SVP statutes.

Because     SVP    statutes    in   other     jurisdictions    often   use    different

nomenclature than utilized by the Iowa legislature, however, cases from

other    state    appellate   courts    have      limited     applicability    in    the

interpretation of Iowa Code chapter 229A. Yet, the reasoning of out-of-

state cases may inform our analysis of the Iowa statute.

        In Lewis, the Washington Supreme Court considered the meaning

of the term “total confinement” in its SVP statute.               177 P.3d at 711.

According to the Lewis court, total confinement meant “confinement

inside the physical boundaries of a facility or institution operated or
                                       32

utilized under contract by the state or any other unit of government for

twenty-four hours a day.” Id. at 713 (quoting Albrecht, 51 P.3d at 77). In

Lewis, however, the statute expressly referred to the requirement of “total

confinement.” Under the Iowa statute, while the term “total confinement”

appears in the notice provision of Iowa Code section 229A.3(1)(a), the

term utilized by the legislature in the gateway provision authorizing the

filing of SVP petitions, is simply “presently confined.”            Iowa Code

§ 229A.4(1).

       A second out-of-state case dealing with somewhat similar issues is

Sporn, 215 P.3d 615. In that case, the respondent was convicted of a

sexually violent offense. Id. at 616. As he approached release on parole

but while still in prison, the state initiated an SVP action against him,

but a jury found that he was not an SVP. Id. After he prevailed in the

SVP action and was released on parole, Sporn violated the terms of

parole by viewing pornography and sexually explicit material on his

computer.      Id.   Upon his return to prison on the parole violation, the

state brought a second SVP case against him. Id.

       Unlike the Iowa statute, the Kansas statute makes it clear that a

person returned to prison for violation of parole in a case involving an

underlying     sexually   violent   offense   may   be   subject   to   an   SVP

commitment proceeding. Id. at 617–18. The state argued that under the

statute, the relevant trigger was impending release from prison. Id. at

618.   The Kansas court, however, held the prior SVP action was res

judicata and the state was barred from bringing a second action. Id. at

620. In passing, however, the Kansas Supreme Court cited other Kansas

caselaw for the proposition that an SVP petition could be filed during the

“complete sentence” which “includes the prison sentence, the maximum

good time credit allowance, and a period of postrelease supervision.” Id.
                                    33

at 618 (emphasis added) (quoting In re Care & Treatment of Johnson, 85

P.3d 1252, 1257 (Kan. Ct. App. 2004)).       The Kansas Supreme Court,

however, did not necessarily endorse the notion that an SVP petition

could be filed when a person is on parole, but instead held that under

the statute, there could only be one procedure per complete sentence.

Id.

      There is one federal case that the parties have cited considering

SVP interpretive issues.    In Jackson, the court construed the term “in

custody” in California’s SVP statute to include situations when a person

is on parole.   318 F. App’x at 586.      The language of the California

statute, however, is materially different than Iowa Code chapter 229A.

      G. Discussion. For purposes of determining whether residency at

the Curt Forbes Residential Facility pursuant to Iowa Code chapter 903B

is “presently confined” under Iowa Code section 299A.4(1), there are a

number of plausible linguistic options.     The term “presently confined”

could include situations where the respondent is out in the community

during the day but not free to come and go as he or she pleases and is

required to physically report and reside in a specific location. Or, the

term plausibly could be interpreted in a narrower fashion to include only

something more akin to total confinement. Because the term “presently

confined” is ambiguous, we may turn to tools of statutory construction to

assist us in resolving the question. See State v. McCullah, 787 N.W.2d

90, 94 (Iowa 2010).

      As   in   Gonzales,   we   approach    the   question   of   statutory

interpretation in the context of the constitutional limitations of civil

commitment. See 658 N.W.2d at 105. We have repeatedly stated that as

a general matter, a recent overt act is a requirement if civil commitment

is to satisfy the demands of due process. See id. An exception has been
                                       34

carved out for persons incarcerated for sexual offenses, but that

exception is based upon the absurdity or impossibility of committing

recent overt acts when incarcerated. See Martin, 165 Cal. Rptr. at 780

(finding due process does not require “the absurd be done” when a

person is incarcerated—namely, requiring the state to show a recent

overt act which “cannot, as a practical matter, be committed during

confinement”); Young, 857 P.2d at 1008 (stating requiring a recent overt

act for incarcerated individuals would create “an impossible condition”).

But, if the requirement of showing a recent overt act is not absurd or

impossible, then the overt-act requirement is applicable.        Albrecht, 51

P.3d at 78 (holding the state was required to show proof of a recent overt

act for individual who was recently released from incarceration into the

community).

      Even in conditions of total confinement, the absurdity or

impossibility exception to the recent-overt-act requirement may have

limits.   As Justice Fairhurst demonstrated in her concurrence in Fair,

the   absurdity   or   impossibility   exception   to   the   recent-overt-act

requirement imposed by due process might not apply in a prison setting

where the prisoner is placed in the general population in a prison of

adult males and the class of victims the offender preys upon is adult

males. 219 P.3d at 97 & n.2 (Fairhurst, J., concurring). Under such

conditions, sexual assault may not be impossible or absurd.

      In any event, under conditions of less than total confinement, the

rationale for the absurdity or impossibility exception is severely

undermined, and as in Gonzales, any interpretation that the recent-

overt-act requirement is waived in situations involving less than total

confinement would “raise serious constitutional issues.” 658 N.W.2d at

105. If fairly possible, we will construe a statute to avoid doubt as to
                                   35

constitutionality. Simmons v. State Pub. Def., 791 N.W.2d 69, 74 (Iowa

2010); Thompson v. Joint Drainage Dist. No. 3-11, 259 Iowa 462, 468, 143

N.W.2d 326, 330 (1966).

      Our construction of the statute is thus driven by the need to

comply with the demands of due process identified above. We begin our

analysis by looking at the statute in its broader context. See Geltz, 840

N.W.2d at 275. The preamble to the statute emphasizes that because

the prognosis for rehabilitating sexually violent predators “in a prison

setting is poor” and the treatment modalities required are very different

from those in a prison setting, civil commitment is necessary. Iowa Code

§ 229A.1. Although only indirectly persuasive on the precise question at

hand, the language of the preamble at least suggests the legislature

considered the dichotomy between prison settings and other settings to

be an important impetus to the enactment of the SVP provisions of Iowa

Code chapter 229A.

      The notice provision of Iowa Code section 229A.3 tends to reinforce

the centrality of the distinction between prison and other settings. When

a person who may be considered to be an SVP is “confined,” the agency

with jurisdiction over the person must provide notice to the attorney

general and a multidisciplinary team established by the department of

corrections of “the anticipated discharge date” of the person convicted of

a sexually violent offense “from total confinement.” Id. § 229A.3(1). The

use of the terms “confined” and “total confinement” in the same section

are not precisely parallel.   When read in tandem with the general

language about “prison” in the preamble, however, the language in

section 229A.3(1) and .3(1)(a) indicates that when persons who are

confined in prison are released from total confinement, including, for
                                      36

example, placed on parole or work release, the ninety-day-notice

mechanism is triggered.

      Analysis of the language of various sections of Iowa Code chapter

229A tends to reinforce an interpretation that presently confined means

total confinement.    Plainly, the legislature knew how to utilize broad

phrases that expressly included custody other than total confinement in

three places of the statute.       Iowa Code section 229A.5B expressly

provides that the term “custody” as used in the section includes persons

“in transitional release program” or “under release with or without

supervision.” Iowa Code section 229A.8A(6) states that the department

of human services is authorized to place “restrictions on confinement

and the movement of committed persons” and to assess the progress of

“committed persons in the [transitional release] program.”        Plainly,

committed persons can include persons in transitional release. Finally,

Iowa Code section 229A.9B provides that a “committed person” who

violates “a release plan” may be returned to a “secure facility.”

Obviously, if a committed person may violate a release plan, a person on

a release plan may be a committed person. The legislature’s use of broad

language in these three provisions of the statute, in contrast to the

unadorned language in Iowa Code section 229A.4(1), suggests that the

term “confinement” was not to be broadly construed as suggested by the

State. See Miller v. Marshall County, 641 N.W.2d 742, 749 (Iowa 2002)

(“We assume the legislature intends different meanings when it uses

different terms in different portions of a statute.”).

      Further, the rationale for not requiring a recent overt act as

explained in the caselaw tends to support the notion that the critical

time for triggering the SVP statute is release from total confinement. The

cases emphasize that when in prison, there is much less opportunity for
                                    37

a person previously convicted of a sexual offense from committing a

recent overt act.   Willis, 691 N.W.2d at 729; Lewis, 177 P.3d at 711.

Because of the intense supervision in prison and the resulting

comparative lack of opportunity to commit a recent overt act, our cases

hold that the original conviction of a sexual offense can be deemed to be

the equivalent of a recent overt act for due process purposes. Stenzel,

827 N.W.2d at 698. But while “[t]he absence of sexually predatory acts

in a setting of secure confinement does not paint the same picture as the

absence of such acts in a normal life situation,” the observation has less

force when an offender is not totally confined but has much lessened

restraint on his or her personal freedom. Willis, 691 N.W.2d at 729.

      Yet, we are troubled by one aspect of the interpretation of presently

confined to mean total confinement. Assume, for instance, that a person

is not totally confined but is on parole for an underlying sexually violent

crime.   That person then commits a recent overt act.      Such a person

could not be committed under Iowa Code section 229A.4(1).         But, the

person also could not be committed under the recent-overt-act track of

Iowa Code section 229A.4(2).     Under Iowa Code section 229A.4(2), a

person may be subject to commitment if there is a recent overt act and if

the person “has been discharged after the completion of the sentence

imposed for the offense.” Thus, a person on parole for a sexually violent

crime arguably has not completed the sentence imposed for the offense

and cannot be committed under Iowa Code section 229A.4(2). One may

question whether the legislature intended that a person convicted of a

sexually violent offense but on parole could not be committed as an SVP

under any circumstance.

      Yet, the need to conform our construction of the statute to the

demands of due process, along with the other features of the statute
                                   38

cited above, convinces us that the recent-overt-act requirement cannot

be waived unless it would be impossible or absurd to require it. As a

result, we construe Iowa Code section 229A.4(1) to require total

confinement before the State may proceed on an SVP commitment

without a recent overt act.

      We also think that Wygle is entitled to prevail for another reason.

Wygle is not a resident of Curt Forbes Residential Facility on parole as a

result of his sentence for the underlying sexual offense. Instead, he was

returned to prison as a result of his special sentence under Iowa Code

section 903B.1. Under Iowa Code section 903B.1, the special sentence

commences after the “completion of the sentence imposed under any

applicable criminal sentencing provisions for the underlying criminal

offense.” The legislature has thus made it clear that a sentence and a

special sentence are simply not the same thing.        Under Iowa Code

section 229A.4(1), a person must be presently confined for a sexually

violent crime.   Under our interpretation, a special sentence cannot be

considered part of the sentence for the original crime under the statute.

Further, Iowa Code section 229A.4(2) requires a recent overt act when

someone “has been discharged after the completion of the sentence

imposed for the offense.” The term “sentence” in this provision also does

not include the special sentence under Iowa Code section 903B.1.

      This interpretation is consistent with the sequence of legislative

actions. The SVP statute was originally enacted in 1998 at a time when

there was no special-sentence provision.      Not surprisingly, there is

nothing in the SVP statute that accommodates the later enacted statute.

When the legislature enacted Iowa Code 903B in 2003, the legislature

made no attempt to integrate the terms of Iowa Code chapter 903B with

the SVP statute. The inference may be made that the legislature did not
                                   39

attempt to integrate the statutes because they were stand-alone

provisions.

      In addition to making sense under the language of the statutes,

this interpretation also avoids serious constitutional problems.   Under

Iowa Code section 903B.2, a special sentence for certain sexually violent

crimes can last a lifetime.    To suggest that a person who has been

released into the community but is serving a special sentence after his

discharge from his sentence for the underlying offense could be subject

to an SVP proceeding many years or even decades later without a recent

overt act merely because of the existence of a special sentence would

plainly stretch the statute beyond the boundaries of due process. The

caselaw clearly emphasizes that as a general proposition, due process

requires a recent overt act before a person can be civilly committed.

Gonzales, 658 N.W.2d at 105.

      For all the above reasons, we conclude that a person who has

completely discharged the sentence for the underlying sexual crime and

is serving a special sentence under Iowa Code chapter 903B is not

“presently confined” for the purposes of Iowa Code section 229A.4(1).

      IV. Conclusion.

      Based on our review, the judgment of the district court is reversed

and the case remanded to the district court for dismissal of the SVP

action.

      REVERSED AND REMANDED WITH DIRECTIONS.

      All justices concur except Mansfield, Waterman, and Zager, JJ.,

who dissent.
                                    40
                                              #16–1732, In re Det. of Wygle
MANSFIELD, Justice (dissenting).

      I respectfully dissent.   In my view, an individual convicted of a

sexually violent offense who is required as part of his sentence to stay at

a facility under the jurisdiction of the district department of correctional

services is “presently confined” within the meaning of Iowa Code section

229A.4.   See Iowa Code § 229A.4 (2016).      Therefore, the State did not

have to prove a recent overt act to bring a petition seeking Nicholas

Wygle’s commitment as a sexually violent predator.

      I begin with a dictionary definition. The first definition of “confine”

is “to hold within a location.”     Confine, Merriam-Webster’s Collegiate

Dictionary (11th ed. 2014).     Likewise, our false imprisonment statute

punishes wrongful confinement and states that “[a] person is confined

when the person’s freedom to move about is substantially restricted by

force, threat, or deception.” Iowa Code § 710.7. In this sense, Wygle was

“presently confined.”

      Along the same lines, a person at a facility like the Curt Forbes

Residential Facility is generally considered to be “in custody.” See also

id. § 719.4 (indicating that the offenses under “[e]scape or absence from

custody” apply to prisons, jails, and community-based correctional

facilities); State v. Halverson, 857 N.W.2d 632, 634 (Iowa 2015) (stating

that the defendant “was in the custody of the residential facility—

commonly referred to as a halfway house . . . .” (emphasis added)).

      I agree that the statute is inartfully drafted and that any

interpretation, including the majority’s, is going to result in loose ends.

But “[w]e have rejected previous attempts to apply a hypertechnical

definition of the phrase ‘presently confined.’ ” In re Det. of Shaffer, 769

N.W.2d 169, 174 (Iowa 2009). In Shaffer, we held that an individual was
                                    41

presently confined because he was, in fact, confined even though he was

being held unlawfully past his discharge date.      Id. at 175.   In In re

Detention of Willis, we held that an individual was presently confined

because he was in jail after having been convicted of a sexually violent

offense even though he had not been sentenced. See 691 N.W.2d 726,

729 (Iowa 2005). In In re Detention of Gonzales, we held that presently

confined means “confined for a sexually violent offense,” although the

statute contains no such requirement.      See 658 N.W.2d 102, 104–06

(Iowa 2003). In In re Detention of Stenzel, we clarified that so long as

someone is “continuously confined on a term of imprisonment that

includes a sexually violent offense,” the person is presently confined

regardless of the order in which the sentences are served.        See 827

N.W.2d 690, 697–701 (Iowa 2013).

      Using the practical interpretation of “presently confined” that we

have heretofore followed, I would hold that someone who is convicted of a

sexually violent offense and has been continuously in some type of

custody thereafter, such as Wygle, is presently confined within the

meaning of Iowa Code section 229A.4(1).        This is true whether the

custodial arrangement is part of the initial sentence or the special

sentence. Once the person has been released from confinement, e.g., he

or she has been paroled into the general community, then the State must

allege and prove a recent overt act under section 229A.4(2)(a).

      This interpretation allows the statute to operate in the binary

manner that was clearly intended by the legislature. That is, where there

has been a continuous confinement that originated when the person

committed a sexually violent offense, the person is “presently confined”

under Iowa Code section 229A.4(1).       Once the confinement has been

broken and the person is generally unrestrained to commit other sexual
                                    42

offenses, the person “has been discharged after the completion of the

sentence imposed,” and the state must prove a recent overt act under

section 229A.4(2)(a).

      I recognize this interpretation does not follow the typical view of

what it means to be “discharged after the completion of the sentence.”

Normally we do not accord that status to someone who has been merely

released on parole. (The majority’s interpretation of Iowa Code section

229A.4 is vulnerable to the same criticism.) However, this interpretation

dovetails with our prior caselaw.     Furthermore, unlike the majority’s

interpretation, it treats the special sentence as a form of parole, which is

exactly what the legislature has said it is. See Iowa Code §§ 903B.1, .2.

At the same time, it also avoids potential constitutional concerns.

      In my view, the majority somewhat overstates those concerns. In

the majority’s view, once a person who committed a sexually violent

offense has been moved from total confinement to a halfway house where

it might be at least possible to commit a new sexually violent overt act,

the state has to prove such an act. It can no longer rely on the earlier

offense.

      No prior case that I’m aware of has adopted this rule. Rather, we

have said,

      The significance of a recent overt act in predicting future
      conduct is not the act but the inference against a particular
      propensity that arises from the absence of an overt act. The
      absence of sexually predatory acts in a setting of secure
      confinement does not paint the same picture as the absence
      of such acts in a normal life situation.

Willis, 691 N.W.2d at 729; see also Stenzel, 827 N.W.2d at 699–700

(quoting this language). In other words, under our precedent, the key

question is not whether it might be theoretically possible for the

respondent to have committed a new overt act. That’s always possible,
                                    43

even in a maximum security prison.           Instead, the critical inquiry is

whether the respondent has been moved to a setting that allows one to

draw the inference the respondent is not dangerous based upon the

absence of sexually violent acts. I would conclude that threshold has not

been met.

      The majority relies heavily on jurisprudence from Washington. But

the Washington Supreme Court held it was constitutional to commit an

individual as a sexually violent predator who had been released from

prison for the past ten years and merely made threats that he would

commit new sexually violent offenses. In re Det. of Danforth, 264 P.3d

783, 786, 792 (Wash. 2011) (en banc). Due process could be satisfied by

threats that “have created a reasonable apprehension of [sexually violent]

harm in the mind of an objective person who knows of the history and

mental condition of the person.”        Id. at 792.    If the “recent overt act”

requirement can be met by a mere threat, it logically follows that the

“presently    confined”   requirement    can be       met   by halfway   house

confinement. In both instances, there is no hard and fast constitutional

rule that recent sexually violent conduct must be proved unless it would

have been totally impossible for the respondent to have engaged in such

conduct.

      I would therefore affirm the district court’s denial of Wygle’s motion

to dismiss.

      Waterman and Zager, JJ., join this dissent.
