               IN THE SUPREME COURT OF IOWA
                           No. 49 / 05-0980

                           Filed June 9, 2006

IN THE MATTER OF S.P.,
Alleged to Be a Chronic
Substance Abuser,

S.P.,

      Appellant.
________________________________________________________________________
        Appeal from the Iowa District Court for Dubuque County,

Lawrence Fautsch, Judge.



        Person subject to commitment order appeals, claiming her

procedural due process rights were violated. REVERSED.



        Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for

appellant.
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STREIT, Justice.

      Even though the court interceded with an effort at finding the

truth, it improperly adopted an adversarial role in the proceedings. S.P.

appeals from the district court order finding she was a chronic substance

abuser and placing her in a residential treatment facility. She contends

her due process rights were violated because the referee and district

court judge took adversarial roles in the proceedings, and because the

district court ordered her attorney to subpoena witnesses adverse to her

interests.   She also claims the court erred in finding she met the

statutory definition of a chronic substance abuser. Because we find the

district court assumed an adversarial role in the proceeding, we reverse

the decision of the district court and do not address S.P.’s other

arguments.

      I. Background Facts and Proceedings

      S.P. is a forty-five year old female with serious health problems.

She has had one heart attack and suffers from coronary artery disease,

hypertension, diabetes, and obesity.     She also suffers from severe

respiratory problems that make her dependent on oxygen. On March 15,

2005, her brother and sister-in-law (hereinafter “applicants”) filed an

application under Iowa Code section 125.75 (2005) alleging S.P. was a

chronic substance abuser who needed to be taken into immediate

custody for her cocaine addiction.     A substance abuse commitment

hearing was held before a hospitalization referee on March 18, 2005.

The applicants were not represented by counsel at the hearing, and no

member of the Dubuque County Attorney’s office attended the hearing.

The referee questioned the two applicants and the examining physician.

S.P.’s attorney cross-examined each witness. S.P. also testified, but was

not cross-examined by the referee.      At the end of testimony, the
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hospitalization referee found that S.P. met the criteria for chronic

substance abuse with a crack cocaine addiction.                   The referee ordered

that she reside at the Julien Care Facility for complete evaluation and

appropriate treatment.

       S.P. appealed the referee’s decision to the district court.                 At the

district court hearing, S.P. demanded a “trial de novo” pursuant to Iowa

Code section 229.21(3)(c), instead of a review based upon the transcripts

of the referee’s hearing. 1       The district court judge ordered that a new

hearing be scheduled so that the witnesses could be re-examined.

       At the start of the second hearing, S.P.’s attorney objected and

made a motion to dismiss based on the fact that there was no one to

“prosecute” the case. The judge denied this motion. The district court

judge proceeded to question the two applicants and, via telephone, the

examining physician who had testified at the hearing before the

hospitalization referee.        S.P.’s attorney cross-examined each witness.

S.P. also testified, but was not cross-examined by the judge. On May 10,

2005, the court issued an order affirming the ruling of the hospitalization

referee.

       1An  order of a magistrate or judicial hospitalization referee finding that a person
is a chronic substance abuser may be appealed to the district court. Iowa Code
§ 229.21. “When appealed, the matter shall stand for trial de novo,” and the court shall
schedule the hearing before a district judge at the earliest practicable time. Id.
§ 229.21(3)(c).

       There are significant differences between a “trial de novo” and a “de novo
review.” See In re Huston, 263 N.W.2d 697, 699 (Iowa 1978). Generally, in a “de novo
review” proceeding, the reviewing court is restricted to the record made in the lower
tribunal. Sieg v. Civil Serv. Comm’n, 342 N.W.2d 824, 828 (Iowa 1983); Mason v. World
War II Serv. Comp. Bd., 243 Iowa 341, 344, 51 N.W.2d 432, 434 (1952). On the other
hand, “in a trial de novo, the court hearing the case anew is permitted to receive
evidence additional to that presented” in the earlier hearing. Dolan v. Civil Serv.
Comm’n, 634 N.W.2d 657, 662 (Iowa 2001); Mason, 243 Iowa at 344-45, 51 N.W.2d at
434.    Therefore, a statute providing for a “trial de novo” in the district court
contemplates a trial in the general meaning of the term, not merely a review of the
agency proceeding. Dolan, 634 N.W.2d at 662.
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       S.P. appeals, contending her right to due process was violated

because the referee and district court judge became the applicants’

attorneys and presented evidence in their stead. No person or party has

filed a brief opposing this appeal.

       In June of 2005, S.P.’s commitment was changed from inpatient to

outpatient status. S.P. soon suffered a relapse, and a new hearing was

held before a hospitalization referee on July 11, 2005.     Once again, a

referee concluded S.P. was a chronic substance abuser and ordered her

back to inpatient status. This appeal concerns only the May 10, 2005

initial commitment order.

       II. Mootness

       An appeal “ ‘is moot if it no longer presents a justiciable

controversy because [the contested issue] has become academic or

nonexistent.’ ” In re D.C.V., 569 N.W.2d 489, 494 (Iowa 1997) (quoting In

re Meek, 236 N.W.2d 284, 288 (Iowa 1975)).        We do not decide cases

when there is no longer any actual controversy, unless we exercise our

discretion and decide the case under an exception to the mootness

doctrine.   Rhiner v. State, 703 N.W.2d 174, 176-77 (Iowa 2005).        The

factors we consider to determine whether we will review a moot action

are:

       (1) the private or public nature of the issue; (2) the
       desirability of an authoritative adjudication to guide public
       officials in their future conduct; (3) the likelihood of the
       recurrence of the issue; and (4) the likelihood the issue will
       recur yet evade appellate review.

In re T.S., 705 N.W.2d 498, 502 (Iowa 2005) (citing State v. Hernandez-

Lopez, 639 N.W.2d 226, 234 (Iowa 2002)).

       The conduct of the court in an involuntary civil commitment

hearing is of public importance.      Because such hearings are a daily
                                          5
occurrence, questions about the proper procedures to be followed

when the applicant is not represented by counsel are likely to reoccur.

Also, given the time elements involved in processing an appeal, and the

strong probability that the commitment will not continue for the length of

the appeal process, such appeals will often be moot before the appeal can

be decided. In re M.T., 625 N.W.2d 702, 705 (Iowa 2001); see also Tyars

v. Finner, 709 F.2d 1274, 1280 (9th Cir. 1983) (holding court would

review     case   despite   appellant’s   discharge   from   hospital   because

involuntary civil commitments “ ‘do not last long enough for complete

judicial review of the controversies they engender’ ” (quoting Super Tire

Eng’g Co. v. McCorkle, 416 U.S. 115, 126, 94 S. Ct. 1694, 1700, 40

L. Ed. 2d 1, 10 (1974))). Therefore, we exercise our discretion to reach

the merits of one issue raised in this appeal.

      III. Merits

      A.    Standard of Review

      A civil commitment requires due process because it constitutes a

significant deprivation of personal liberty. In re M.T., 625 N.W.2d at 706

(citing Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60

L. Ed. 2d 323, 330-31 (1979)). We review constitutional claims de novo.

In re Cubbage, 671 N.W.2d 442, 444 (Iowa 2003).

      B. Procedural Process in a Civil Commitment Hearing

      Chapter 125 of the Iowa Code addresses the issue of chemical

substance abuse.       Under our statutory scheme, any interested person

may commence commitment proceedings by filing an application for the

involuntary commitment or treatment of an alleged chronic substance

abuser. Iowa Code § 125.75. Upon the filing of the application, the clerk

of court dockets the case and immediately notifies a district court judge,

a district associate judge, or magistrate who is admitted to the practice of
                                     6
law. Id. § 125.77. The court then schedules a hearing not less than

forty-eight hours after notice of the application is served upon the

respondent.    Id. § 125.78(3)(a).   If the applicant requests a court-

appointed attorney, the court is required to appoint one at the county’s

expense so long as it determines the applicant is financially unable to

employ an attorney and a court-appointed attorney “is necessary to

assist the applicant in a meaningful presentation of the evidence.” Id.

§ 125.78(2).

      Section 125.82(4) sets forth the procedures for the commitment

hearing:

            The respondent’s welfare is paramount, and the
      hearing shall be tried as a civil matter and conducted in as
      informal a manner as is consistent with orderly procedure.
      Discovery as permitted under the Iowa rules of civil
      procedure is available to the respondent. The court shall
      receive all relevant and material evidence, but the court is
      not bound by the rules of evidence. A presumption in favor of
      the respondent exists, and the burden of evidence and
      support of the contentions made in the application shall be
      upon the person who filed the application. If upon completion
      of the hearing the court finds that the contention that the
      respondent is a chronic substance abuser has not been
      sustained by clear and convincing evidence, the court shall
      deny the application and terminate the proceeding.

(Emphasis added.)

      In order to commit someone as a chronic substance abuser, the

referee or district court has to find by clear and convincing evidence that

the person:

      a. Habitually lacks self control as to the use of chemical
      substances to the extent that the person is likely to seriously
      endanger the person’s health, or to physically injure the
      person’s self or others, if allowed to remain at liberty without
      treatment.
                                     7
       b. Lacks sufficient judgment to make responsible decisions
       with respect to the person’s hospitalization or treatment.
Id. § 125.2(4).

       In the present case, the applicants completed a fill-in-the-blank

application form alleging chronic substance abuse.                  The applicants

signed     the    application   and     attached     statements     and     affidavits

corroborating their allegations.

       Upon reviewing the application, the district court judge issued an

order that S.P. be taken into immediate custody.                   The judge also

appointed counsel for S.P., ordered a physician to examine her, and set

the date and time for a commitment hearing before a hospitalization

referee.

       The applicants did not hire an attorney to assist them at the

hearing. 2       Likewise, the Dubuque County Attorney’s office did not

participate in either hearing and did not present evidence on behalf of

the applicants. Not surprisingly, the co-applicants did not take an active

role at the hearing. They simply stood silent as the referee took charge of

the proceeding.

       C. Were S.P.’s Procedural Due Process Rights Violated?

       S.P. contends her right to due process was violated because the

district court judge took on an adversarial role when questioning the

witnesses, in effect becoming the applicants’ attorney and presenting

evidence in their stead. She argues her due process rights were violated




       2The   application form filled out by the applicants did not contain a box
requesting that the court appoint an attorney for the applicants. See Iowa Code
§ 125.78(2) (outlining procedures whereby an applicant can request the court to appoint
an attorney, at the county’s expense, for the applicant).
                                         8
because the nature and extent of the court’s questions rose to the

level of advocacy. 3

       The issue of a referee taking on an adversarial role during an

involuntary commitment hearing was brought before this court in In re

R.P., 606 N.W.2d 15 (Iowa 2000).              In R.P., the applicant was not

represented by counsel and the trier of fact examined the witnesses on

the applicant’s behalf.      606 N.W.2d at 15-16.         Similar to the case at

hand, the respondent appealed the referee’s civil commitment finding to

this court, claiming he was denied due process because the referee took

on an adversarial role by questioning the witnesses.               Id. at 16.    We

disagreed, finding the respondent was not denied due process because

“the referee did not display any evidence of becoming an advocate by

such actions as extensive questioning, leading of the witness, or cross-

examination of the respondent.” Id. at 17.

       The record in the present case simply does not display what

Edmund Burke described as “the cold neutrality of an impartial judge.”

See State v. Glanton, 231 N.W.2d 31, 35 (Iowa 1975). Instead, we have a

district court judge trying to elicit testimony that will support the

applicants’ burden of proof. While we empathize with the court’s strong

desire to aid the unrepresented applicants and do what is best for S.P., it

is, as we stated in State v. Glanton, “ordinarily a dangerous practice for a

presiding judge to contribute his efforts in an attempt to equalize what

he perceives to be disparity in the trial ability of opposing counsel.” Id.

Even though the court did not become a cheerleader or partisan for the

applicants, the court assumed an adversarial role in the process by



       3Because    the district court held a trial de novo in this case, we focus our
attention solely on the district court proceeding.
                                          9
picking       and    choosing      which evidence would come in on behalf of

the applicants. 4 In the process of searching for such evidence, the court

marshaled the evidence towards the definition of a chronic substance

abuser.       This focused questioning changed the court’s role from an

impartial decision-maker to an advocate.

       We hold today that an analysis based solely upon the nature of the

questions asked by the referee or district court judge is not wholly

determinative of the issue of advocacy. We cannot provide the trial court

a cookbook of right or wrong questions, but merely observe that any

effective questioning will inevitably lead to the heart of the case. When

the court itself directs the case in this way it is marshaling or assembling

the evidence. Artfully crafted questions will not hide the court’s role in

the proceedings at that point—the role of deciding what evidence is

needed to prove the case and steering the case down that road.

       R.P. exemplified the rare situation where witnesses, answering a

few open-ended questions with narrative testimony, were able to

articulate enough clear and convincing evidence to convince the court

that a civil commitment was necessary.                 But in many cases the

applicant’s narrative testimony, along with the unguided narrative

testimony of the examining physician, will be insufficient for a civil

commitment. In those situations the court is prohibited from assuming

the role of an advocate. As noted above, when the court takes an active

role by examining witnesses on the applicant’s behalf, it begins to take

on the attributes of an advocate.           Therefore, when faced with pro se


       4The  authority of a judge to question witnesses is well established. See, e.g.,
Fed. R. Evid. 614(b); Iowa R. Evid. 5.614(b). “The authority is, of course, abused when
the judge abandons his proper role and assumes that of advocate.” Fed. R. Evid. 614
advisory committee’s note to subdivision b.
                                         10
applicants in a civil commitment              proceeding, the referee or district

court is advised to either appoint an attorney at the county’s expense

under the guidelines of Iowa Code section 125.78(2) or warn the

applicant at the outset that the applicant will have to prove his or her

case without assistance from the court. 5

       IV. Disposition

       The trial court tried to do what was best for the health and well-

being of S.P.     However, S.P. was denied due process when the court

became an advocate for the applicants. Although we reverse, we do not

remand for a new hearing since S.P. is no longer subject to the May 10,

2005 inpatient order.        Any subsequent substance abuse commitment

orders pertaining to S.P. remain unchanged by this decision.

       REVERSED.




        5Of course, a third option would be for the county attorney to join in the

application as a co-applicant. See In re T.S., 705 N.W.2d at 504. Also, as of July 1,
2006, Iowa Code section 125.82 has been modified to provide “evidence in support of
the application may be presented by the applicant, or by an attorney for the applicant,
or by the county attorney.” 2006 Iowa Legis. Serv. S.F. 2362 (West) (emphasis added).
