                  IN THE SUPREME COURT OF IOWA
                                No. 08–1358

                             Filed July 17, 2009


IN RE THE DETENTION OF GELEN KENDRICK SHAFFER

GALEN KENDRICK SHAFFER,

      Appellee.



      Appeal from the Iowa District Court for Black Hawk County,

Thomas N. Bower, Judge.



      Appeal of dismissal of petition for civil commitment of a sexually

violent predator. REVERSED AND REMANDED.



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

Goettsch, Assistant Attorneys General, for appellant.



      Mark C. Smith, State Appellate Defender, and Michael H. Adams,

Assistant Public Defender, for appellee.
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CADY, Justice.

      In this appeal, we must decide if the district court properly dismissed

the State’s petition seeking the civil commitment of Galen Kendrick Shaffer

as a sexually violent predator. The district court determined Shaffer was not

presently confined as required by the Sexually Violent Predator Act and

dismissed the petition.         Upon our review, we reverse the decision of the

district court and remand the case for further proceedings to determine

whether Shaffer is a sexually violent predator.

      I. Background Facts and Proceedings.

      This case arises from a petition for the civil commitment of

Galen Kendrick Shaffer filed by the State under Iowa Code chapter 229A

(2007), 1 the Sexually Violent Predator Act. In 1991, Shaffer was adjudicated

to have committed a delinquent sexual act as a minor. Four years later, he

was convicted as an adult of three counts of sexual abuse in the second

degree.      He was sentenced to three concurrent indeterminate terms of

incarceration not to exceed twenty-five years.

      Shaffer was committed to the custody of the Iowa Department of

Corrections to serve his indeterminate term of incarceration. See Iowa Code

§ 902.3 (providing that a court sentencing a felon other than a class “A” felon
to confinement “shall commit the person into the custody of the director of

the Iowa department of corrections for an indeterminate term”).                       While

Shaffer remained in the custody of the Iowa Department of Corrections, he

was eligible to earn a reduction of his sentence based upon his behavior.

See Iowa Code § 903A.2. The statutes governing reduction of sentences were

amended multiple times during Shaffer’s confinement, 2 and on numerous

      1All   statutory references are to the 2007 Iowa Code unless noted otherwise.
      2At  the time of Shaffer’s conviction, the Iowa Code provided for “a reduction of
sentence of one day for each day of good conduct of the inmate while committed.” Iowa
Code § 903A.2 (1995). The Code also provided “[i]n addition to the sentence reduction of
                                             3

occasions the department calculated Shaffer’s release date by applying the

amendments and other factors. The last discharge date calculated by the

department prior to the dispute raised in this case was July 2008. Shaffer

never challenged the calculation of his discharge dates before the State filed

the petition for civil commitment at issue in this appeal. 3

       The State filed the petition for civil commitment on October 9, 2007.

The petition alleged Shaffer was in state custody and probable cause existed

to believe he was a sexually violent predator. Shaffer was in prison in the

state penitentiary at Anamosa at the time.                    Shaffer then filed two

applications for postconviction relief. On October 19, 2007, Shaffer filed an

application for postconviction relief in Jones County, where the Anamosa

State Penitentiary is located. On October 24, 2007, Shaffer filed a second

application for postconviction relief in Black Hawk County, where he was

convicted of sexual abuse in the second degree in 1995.

       The two applications for postconviction relief alleged identical grounds

for relief.   Shaffer alleged his sentence had expired, he was otherwise

unlawfully    held,    and    “[t]ime   [was]    unlawfully    forfeited    pursuant     to



one day for each day of good conduct, each inmate is eligible for an additional reduction of
sentence of up to five days a month” for satisfactory participation in a work or treatment
program. Id. In 2000, the Iowa Code was amended to rename good conduct time as
“earned time” and to make all accrual of earned time conditional on satisfactory
participation in one of five listed programs. See 2000 Iowa Acts ch. 1173, § 4. Then in
2005, section 903A.2 was amended to reflect, for the first time, the current provision
requiring certain classes of inmates to complete a sex offender treatment program to become
eligible for earned time. See 2005 Iowa Acts ch. 158, § 32 (codified at Iowa Code § 903A.2
(2007)).
       3The record suggests Shaffer had previously challenged his dismissal from a sexual

offender treatment program and the concomitant cessation of reductions to his sentence.
This challenge appears to be unrelated to the State’s application of the amended version of
the statute governing reduction of sentences. Rather, Shaffer raised the “substantive”
question of whether he should have been dismissed from the treatment program under the
rules of that program. His challenge did not relate to the propriety of the change in legal
consequences of the dismissal resulting from the amendments to the statutes dealing with
reduction of sentences.
                                            4

procedures of Iowa Code chapter 903A.” Shaffer asserted his sentence was

extended by application of amendments to the statute governing reduction of

sentence, Iowa Code § 903A.2, in violation of the Ex Post Facto and Due

Process Clauses of the federal and state constitutions. Neither application

for postconviction relief explicitly addressed the State’s petition for civil

commitment.

       The district court in Jones County held application of the amendments

to section 903A.2 to Shaffer violated the Ex Post Facto Clause because the

new statutory provision governing the reduction of sentences made the

punishment for Shaffer’s prior criminal conduct more onerous.

       The district court in Black Hawk County held a probable cause

hearing on the State’s petition for civil commitment, together with a hearing

on the application for postconviction relief.           Shaffer asserted the district

court had no subject matter jurisdiction to hear the State’s petition for civil

commitment because he was not “presently confined” under section 229A.4.

He claimed he was not “presently confined” because he should have been

discharged in September 2007 under the applicable version of section

903A.2, prior to the time the petition was filed.

       The district court in Black Hawk County held application of the

amendment to section 903A.2 to Shaffer violated Shaffer’s rights under the

Ex Post Facto Clause. It also held the State failed to timely file the petition

for civil commitment because Shaffer should have been released under the

applicable law before the State filed its petition.          As a result, the district

court granted summary judgment on Shaffer’s application for postconviction

relief and dismissed the State’s petition for civil commitment. 4

       4The following day, the district court filed two supplemental orders.   In the first
supplemental order, the court found probable cause to believe Shaffer is a sexually violent
predator. In the second supplemental order, the court stayed any release of Shaffer from
State custody pending appeal.
                                               5

       The State filed an appeal from the order by the district court

dismissing its petition for civil commitment. 5 The only issue we review is

whether Shaffer was presently confined under Iowa Code section 229A.4. 6

       II. Standard of Review.

       The scope of review of this legal question is for errors at law. Iowa R.

App. P. 6.907 (2009).           We have reviewed previous constructions of the

provisions of chapter 229A for corrections of errors of law. See In re Det. of

Willis, 691 N.W.2d 726, 728 (Iowa 2005).                  To the extent Shaffer raises

constitutional issues, our review is de novo. Id.

       III. Statutory “Presently Confined” Requirement.

       The Sexually Violent Predator Act (SVP Act) plots two separate courses

for the civil commitment of a sexually violent predator.                    See Iowa Code

§ 229A.4 (providing certain criteria to commence proceedings to commit “a

person presently confined” and separate criteria to commence proceedings to

commit “a person who has committed a recent overt act”).                      Only the first

option is implicated in this case because the State does not allege a recent

overt act other than the act constituting the basis for Shaffer’s conviction for

sexual abuse in the second degree. Under the first option,

       [i]f it appears that a person presently confined may be a sexually
       violent predator and the prosecutor’s review committee has


       5The State separately appealed the summary judgment on Shaffer’s Black Hawk
County application for postconviction relief. We do not address that appeal here.
       6The  State has also argued its application of section 903A.2 as amended is not an
ex post facto violation. On January 23, 2009 (during the pendency of this appeal), this court
addressed an identical ex post facto issue regarding section 903A.2 in State v. Iowa District
Court, 759 N.W.2d 793 (Iowa 2009). We held application of the amendments to section
903A.2 to offenders already sentenced violates the Ex Post Facto Clause of the United States
Constitution. Iowa Dist. Ct., 759 N.W.2d at 802. As a result of that opinion, the State filed
a motion to amend its brief in this case to remove its argument regarding the ex post facto
application of amendments to section 903A.2. This court denied the motion and instead
interpreted the motion as a waiver of any district court error on the ex post facto issue by
the State. Following our resolution of the ex post facto issue in Iowa District Court, the State
also voluntarily dismissed its separate appeals in Shaffer’s two postconviction relief actions.
                                         6
         determined that the person meets the definition of a sexually
         violent predator, the attorney general may file a petition alleging
         that the person is a sexually violent predator and stating
         sufficient facts to support such an allegation.

Id. § 229A.4(1).

         The district court held Shaffer’s sentence expired under the applicable

law before the State filed its petition for civil commitment, and therefore,

Shaffer was not “presently confined” as required by section 229A.4 of the

SVP Act. The State argues Shaffer was presently confined, whether properly

or not, when it filed the petition for civil commitment.

         Ultimately, the issue presented in this case requires us to interpret the

statutory phrase “presently confined.”           Consequently, our role is to

determine the intent of the legislature. State v. Sluyter, 763 N.W.2d 575,

581 (Iowa 2009). A host of rules exist to assist in this task. See Iowa Code

§ 4.6.    In this case, the primary rule we rely upon is that statutes are

interpreted consistent with the common law and with other laws pertaining

to similar subjects. Id. § 4.6(4); Schaer v. Webster County, 644 N.W.2d 327,

336 (Iowa 2002).

         This is not the first time we have considered whether the person

named in a petition for civil commitment was “presently confined” at the

time of the petition for the purposes of chapter 229A.         In the case In re

Detention of Gonzales, 658 N.W.2d 102 (Iowa 2003), the State petitioned for

civil commitment of an individual while he was incarcerated for operating a

motor vehicle without the owner’s consent. Gonzales, 658 N.W.2d at 102–

03. We interpreted the term “presently confined” in chapter 229A to require

the confinement to be for a sexually violent offense. Id. at 104. We reasoned

that a contrary construction would not be just or reasonable, in part,

because it would allow the State to rely on trivial offenses to start the civil
                                      7

commitment process. Id. at 104–05. As a result, we dismissed the petition

for civil commitment. Id. at 106.

      Shaffer argues he was not confined for a sexually violent offense at the

time of the State’s petition, as required by Gonzales. Instead, he maintains

he was held unlawfully in violation of the Ex Post Facto Clause at the time

the State petitioned for civil commitment. The State acknowledges that our

recent decision in State v. Iowa District Court, 759 N.W.2d 793 (Iowa 2009),

resolves the ex post facto issue in Shaffer’s favor, but argues Shaffer was

nonetheless “presently confined” for purposes of the SVP Act.

      There is no doubt Shaffer was imprisoned at the Anamosa State

Penitentiary in the custody of the department of corrections on October 9,

2007, when the State filed the petition for civil commitment. He was in the

custody of the department as a result of the manner the department

calculated the reductions of his indeterminate twenty-five year sentence.

The calculations were based on the department’s interpretation of two

amendments to section 229A enacted after Shaffer was incarcerated.

      There is likewise no dispute that the department of corrections is

charged with “control, treatment, and rehabilitation of offenders committed

under law to” the Anamosa State Penitentiary. Iowa Code § 904.102. Each

offender committed to the custody of the department is eligible to earn a

reduction of sentence as provided by statute, id. § 903A.2, and the director

of the department of corrections is tasked with developing rules to

implement the reduction of sentences, id. § 903A.4.       The department of

corrections generated an earned time report for Shaffer reflecting the

number of credits earned and the amount of time remaining on his sentence.

See id. § 903A.4 (requiring earned time reports). As of the date the State

petitioned for civil commitment, Shaffer had not challenged the department’s

calculation of earned time. See id. § 822.2 (providing postconviction relief
                                      8

procedure for any person who claims “[t]he person’s sentence has expired, or

probation, parole, or conditional release has been unlawfully revoked, or the

person is otherwise unlawfully held in custody or other restraint”).

      Those circumstances distinguish this case from the Gonzales case.

Gonzales served his sentence on a sex offense, was released from custody,

and was later incarcerated on separate charges. Gonzales, 658 N.W.2d at

102. Here, Shaffer has been in continuous State custody. Moreover, the

State never relied on any legal basis to justify his custody other than his

sexual abuse conviction. Although Shaffer’s term of incarceration for this

offense would have expired if his sentence had been reduced according to the

applicable law, he was still confined, with no claim of bad faith, due to the

sexual abuse conviction. Under the circumstances, the concerns leading to

dismissal of the petition for civil commitment in Gonzales are not implicated.

      We have rejected previous attempts to apply a hypertechnical

definition of the phrase “presently confined.”     In Willis, we rejected the

contention that the person named in a petition for civil commitment under

the SVP Act was not presently confined at the time of the petition because he

had not yet been convicted of the sexual offense for which he was being

confined.   691 N.W.2d at 729.     We noted, “It is only necessary that the

subject be ‘presently confined’ for a sexually violent offense.” Id. We held

the presently confined requirement was met even though there had been no

conviction because “[t]he basis for the sheriff's custody of Willis at the time

the petition was filed was the fact that he had committed a sexually violent

offense.” Id. It was irrelevant to the analysis that later judicial proceedings

could have shown the sheriff’s custody to be unlawful.

      Similarly, in this case, the State confined Shaffer under a good-faith

belief that the relevant statutes governing his release date required his

continued confinement.      Nothing in the record suggests bad faith or
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gamesmanship, and Shaffer never disputed the calculation of his release

date prior to the time the petition was filed. The subsequent challenges to

the State’s calculation of Shaffer’s release date and our holding in Iowa

District Court do not change the historical fact that Shaffer was confined for

sexual abuse in the second degree when the State petitioned for his civil

commitment.

      A number of familiar legal principles applicable in parallel areas of the

law support our conclusion Shaffer was “presently confined.” For instance,

it is a fundamental principle of law that, when a court has authority to make

an order and jurisdiction over the subjects of the order, an order by the

court must be obeyed regardless of the substantive legality of the order; and

any breach of the order is subject to punishment for contempt.            Lutz v.

Darbyshire, 297 N.W.2d 349, 352 (Iowa 1980), overruled on other grounds by

Phillips v. Iowa Dist. Ct., 380 N.W.2d 706 (Iowa 1986). Similarly, “one may

be guilty of the crime of resisting arrest even if the initial arrest is illegal.”

Smith v. State, 542 N.W.2d 567, 569 (Iowa 1996). Likewise, we have held an

inmate may not disobey a correctional officer’s direct order, even when the

order suffered from some defect. Id.

      The relevant and unifying principle that emerges is that the ability of

each of these government institutions to achieve its mission depends to some

degree upon a presumption its actions are legal until proven otherwise.

Likewise, the ability of other interested parties—including crime victims,

government attorneys and agencies, and even inmates themselves—to rely

on department of corrections calculations until those calculations are shown

to be erroneous is essential to the efficient discharge of correctional

functions. In this case, the SVP Act names the attorney general as the party

responsible for petitioning for civil commitment of suspected sexually violent

predators.    Iowa Code § 229A.4(1).        We refuse to hold the legislature
                                       10

intended the SVP Act to require the attorney general to second-guess the

department of corrections’ calculation of indeterminate sentences when the

person subject to the sentence has not done so.           Instead, we believe our

legislature would have had these concepts in mind in enacting the statute

with the “presently confined” language.

      We conclude a person named in a petition for civil commitment as a

sexually violent predator is “presently confined” under section 229A.4(1),

even though the basis of confinement may later be found to be erroneous.

This interpretation does not mean Shaffer’s view would not have merit if he

was knowingly and purposely confined by the department contrary to the

law simply to give the State an opportunity to file a petition. In this case,

however, Shaffer was confined pursuant to an unchallenged, good-faith

application of the law to his sentence. The collateral attacks on the validity

of that application of law and the subsequent determination the calculation

was unconstitutional cannot alter the fact he was presently confined for a

sexually violent offense on the date the State petitioned for civil commitment.

Under the facts of this case, we hold Shaffer was “presently confined” at the

time the State filed its petition for civil commitment.

      IV. Conclusion.

      Shaffer was presently confined as required by the SVP Act. We reverse

the district court’s dismissal of the petition for civil commitment and remand

the case for further proceedings required by the SVP Act.

      REVERSED AND REMANDED.
