                  IN THE SUPREME COURT OF IOWA

                            No. 85 / 05-1971

                         Filed February 1, 2008

IN RE THE DETENTION OF
VALJEAN LEHMAN,

STATE OF IOWA,

      Appellant.
________________________________________________________________________
      Appeal from the Iowa District Court for Page County, J.C. Irvin,

Judge.



      The State appeals from the district court ruling that a statute

granting the Attorney General the right to demand a jury trial over the

respondent’s objection in a sexually violent predator proceeding is

unconstitutional. REVERSED AND REMANDED.


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

J. Glaser, Assistant Attorneys General, for appellant.



      Mark C. Smith, State Appellate Defender, for appellee.
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PER CURIAM.

      The State appeals from the district court’s ruling that Iowa Code

section 229A.7(4), which authorizes the Attorney General to demand,

over a respondent’s objection, a jury trial in a sexually violent predator

(SVP) proceeding, violates the Due Process Clauses of the United States

and Iowa Constitutions. We reverse and remand.

      I.       Factual and Procedural Background.

      These proceedings began on September 16, 2005, when the State

filed a petition alleging Valjean Lehman is an SVP.                    See Iowa Code

§ 229A.2(11) (2005) (defining SVP); id. § 229A.4(1) (authorizing the

Attorney General’s filing of a petition alleging “a person presently

confined” is an SVP when a prosecutor’s review committee has concluded

the person meets the definition of an SVP). After a hearing, the district

court found probable cause exists to believe Lehman is an SVP, ordered

Lehman’s transport to a secure facility for evaluation, and set a date for

trial. Id. § 229A.5(2), (5) (requiring a court to determine, after a hearing,

“whether probable cause exists to believe the person named in the

petition” is an SVP, and in instances where probable cause exists, to

direct the person’s transfer to a secure facility for evaluation).

      The State, pursuant to Iowa Code section 229A.7(4), demanded a

jury trial.1     Lehman filed a motion to strike the jury demand on the

ground that section 229A.7(4) violates the Due Process and Equal

Protection Clauses of the United States and Iowa Constitutions.                        The

district court granted Lehman’s motion to strike the State’s jury demand,

      1Section   229A.7(4) provides, in relevant part:

      The respondent, the attorney general, or the judge shall have the right to
      demand that the trial be before a jury. Such demand for the trial to be
      before a jury shall be filed, in writing, at least ten days prior to trial. If
      no demand is made, the trial shall be before the court.
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ruling section 229A.7(4) violates Lehman’s due process right to a fair trial

by allowing the State to choose a jury trial and deny Lehman the

opportunity to choose a bench trial.

       In reaching its decision, the district court took “judicial notice of

the volatile political climate in Iowa and other states with regard to sex

offenders,” noted society’s “collective inquiry of ‘what to do with [SVPs],’ ”

and acknowledged our legislature’s adoption of “a series of laws aimed at

‘dealing with’ [such] offenders upon their release from serving a criminal

sentence.”2 The court did not rule on the merits of Lehman’s claim that

section 229A.7(4) violates his right to equal protection of the law under

the federal and state constitutions by depriving him of the right to waive

a jury trial and choose a bench trial.

       The State filed an application for discretionary review and a

request for an immediate stay of the district court proceedings. See id.

§ 814.5(2)(d) (authorizing discretionary review of “[a] final judgment or

order raising a question of law important to the judiciary and the

profession”).     We granted the application and ordered a stay of the

district court proceedings pending our review.

       II.     Standard of Review.

       We review Lehman’s constitutional claims de novo.                   In re Det. of

Williams, 628 N.W.2d 447, 451 (Iowa 2001).

       III.    Analysis.

       A. Due Process. Our opinion filed today in State v. Hennings, No.

84/05-1752, is dispositive of Lehman’s due process claim.                        For the



       2The   State assails the district court’s reliance upon “judicial notice” in finding
these facts. We conclude we need not determine whether the facts were proper subjects
of judicial notice. Even if we assume, without finding, the truth of the noticed facts, we
are not convinced it is impossible to empanel an impartial jury capable of rendering a
fair decision based on the evidence in this case.
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reasons discussed in that opinion, section 229A.7(4) does not violate the

United States and Iowa Due Process Clauses by allowing the State to

demand a jury trial over Lehman’s objection and thereby denying

Lehman the absolute right to choose a trial to the court.

      B.    Equal Protection.      Although the district court granted

Lehman’s motion without reaching the merits of the equal protection

claim, we will nonetheless consider it because it was urged in the district

court. See Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811–12 (Iowa

2000) (noting “[i]f we disagree with the basis for the court’s ruling, we

may still affirm if there is an alternative ground, raised in the district

court and urged on appeal, that can support the court’s decision”). Our

opinion filed today in Hennings is also dispositive of Lehman’s equal

protection claim.   For the reasons discussed in that opinion, section

229A.7(4) does not violate Lehman’s rights under the United States and

Iowa Equal Protection Clauses.

      IV.   Conclusion.

      We conclude Iowa Code section 229A.7(4) does not violate

Lehman’s rights to due process and equal protection of the law.        We

consequently reverse and remand for further proceedings consistent with

this opinion.

      REVERSED AND REMANDED.

      This opinion shall not be published.
