              IN THE SUPREME COURT OF IOWA
                           No. 84 / 07–0315

                       Filed September 19, 2008


STATE OF IOWA,

      Appellee,

vs.

TIMOTHY ALLEN WILLARD,

      Appellant.


      Appeal from the Iowa District Court for Linn County, Russell G.

Keast (trial and sentencing) and Fae Hoover-Grinde (motion to dismiss),

Judges.



      Defendant contends the district court erred by not granting his

motion to dismiss. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Dennis D.

Hendrickson, Assistant State Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Mary Tabor, Assistant

Attorney General, Harold L. Denton, County Attorney, and Jason A.

Burns, Assistant County Attorney, for appellee.
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STREIT, Justice.

      Timothy Willard is a sex offender subject to the residency

restrictions found in Iowa Code section 692A.2A (2005).      He bought a

house within two thousand feet of a school. The sheriff told Willard he

could not live in the house. After Willard did not move out of the house,

he was charged with violating section 692A.2A.       He filed a motion to

dismiss, claiming the two-thousand-foot rule was unconstitutional. The
district court denied his motion, and Willard was convicted.      We hold

section 692A.2A is not a bill of attainder and does not violate equal

protection or procedural due process.       Willard failed to preserve for

appeal his claim alleging interference with the right to interstate travel.

We affirm.

      I.     Facts and Prior Proceedings.

      In April 1997, Willard pled guilty to two counts of indecent contact

with his then twelve-year-old stepdaughter.      The girl told her school

counselor Willard touched her genitals and was pressuring her to have

sex with him.   As a result of his conviction, Willard is subject to the

residency restrictions found in Iowa Code chapter 692A. A person who

has committed a sexual offense against a minor may not live within two
thousand feet of a school or child-care facility. Iowa Code § 692A.2A(2).

      In February 2004, the federal district court for southern Iowa held

the two-thousand-foot rule unconstitutional on several grounds and

enjoined the State from enforcing the law.        See Doe v. Miller, 298

F. Supp. 2d 844 (S.D. Iowa 2004). However, the Eighth Circuit Court of

Appeals reversed the district court on April 29, 2005. Doe v. Miller, 405

F.3d 700 (8th Cir. 2005), cert. denied, 546 U.S. 1034, 126 S. Ct. 757,

163 L. Ed. 2d 574 (2005). A few days later—May 7, 2005—Willard signed

a contract to purchase a house located at 120 First Street in Alburnett,
                                         3

Iowa. He notified the Linn County Sheriff of his new address. See Iowa

Code § 692A.2, .3 (requiring a person convicted of a sexual offense to

register with the sheriff of the county of the person’s residence).

        In October 2005, the sheriff notified Willard his new house was

within two thousand feet of a school. The sheriff gave Willard thirty days

to establish a residence in compliance with section 692A.2A.                  After

Willard did not move, the State charged him with violating the residency
restrictions under section 692A.2A, an aggravated misdemeanor.

        Willard filed a motion to dismiss, alleging section 692A.2A violated

his right to procedural due process, constituted a bill of attainder, was

vague     and    overbroad,   violated       his   right   to   equal   protection,

unconstitutionally affected his family relationships, and violated his right

to travel. The court held a hearing on the motion. Thereafter, the parties

filed briefs with the district court.               Willard briefed only three

constitutional claims: bill of attainder, equal protection, and procedural

due process.      The district court denied Willard’s motion to dismiss,

concluding section 692A.2A did not violate Willard’s “constitutional

rights of equal protection nor procedural due process, and it is not a bill

of attainder.”
        Willard waived his right to a jury trial and stipulated to the

minutes of evidence. The district court found he violated the residency

restrictions and imposed a $500 fine.

        On appeal, Willard challenges the district court’s denial of his

motion to dismiss and contends the two-thousand-foot rule is a bill of

attainder, violates his constitutional right to equal protection and

procedural due process, and interferes with his constitutional right to

travel. We affirm for the reasons that follow.
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      II.     Scope of Review.

      Constitutional claims are reviewed de novo. State v. Naujoks, 637

N.W.2d 101, 106 (Iowa 2001).

      III.     Merits.

      Iowa’s     two-thousand-foot    rule   has   withstood    constitutional

challenge on several occasions. See Miller, 405 F.3d at 704–05; Wright v.

Iowa Dep’t of Corr., 747 N.W.2d 213 (Iowa 2008); State v. Groves, 742
N.W.2d 90, 93 (Iowa 2007); State v. Seering, 701 N.W.2d 655, 668 (Iowa

2005).      Willard attempts to distinguish those cases by claiming he

“contracted for his home during a time when he could legally reside

there” and then was subsequently “banished.” At the outset, we find this

statement to be untrue. Willard purchased his house several days after

the Eighth Circuit reversed the district court decision finding the law

unconstitutional. Willard places much emphasis on the fact the federal

district court’s injunction was still in effect at the time he purchased his

house. On remand, the federal district court recognized an agreement of

the parties to resume enforcement of the statute on September 1, 2005.

We conclude Willard was not legally entitled to reside in his house when

he purchased it.         Rather, the State simply agreed to postpone
enforcement of the statute.      Willard should not have been under any

illusion that he was entitled to live in the house when he purchased it.

We turn now to his specific claims.

      A.      Bill of Attainder. A bill of attainder is a legislative act that

inflicts punishment on a particular individual or readily identifiable

group without a judicial trial. Atwood v. Vilsack, 725 N.W.2d 641, 651

(Iowa 2006). A bill of attainder is prohibited under the United States and

Iowa Constitutions. See U.S. Const. art. I, § 10 (“No State shall . . . pass

any Bill of Attainder . . . .”); Iowa Const. art I, § 21 (“No bill of attainder
                                      5

. . . shall ever be passed.”). Willard claims section 692A.2A is a bill of

attainder because it (1) identifies a class of individuals, (2) inflicts

punishment on the individual member of the class, “solely and

specifically because of their status as members of a class,” and (3) fails to

provide a judicial trial. We recently rejected this argument in Wright, 747

N.W.2d at 217–18.

       Certainly, section 692A.2A identifies a class of individuals—sex
offenders whose victims were minors. However, merely being subject to

the residency restrictions is not punishment. See Seering, 701 N.W.2d at

668 (stating “we cannot conclude that the statute imposes criminal

punishment under this record”).      Willard was not punished solely for

being a member of this group. Instead, he was punished for violating the

residency restrictions that were enacted for the legitimate purpose of

protecting children. Id. Moreover, he was afforded all of the protections

of the judicial process when he was charged with violating section

692A.2A. His bill-of-attainder argument is therefore without merit.

       B.    Equal Protection.     Willard claims section 692A.2A denies

him equal protection under the law.          The Fourteenth Amendment

provides a state may not “deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1. Similarly,

the Iowa Constitution states “the general assembly shall not grant to any

citizen, or class of citizens, privileges or immunities, which upon the

same terms shall not equally belong to all citizens.” Iowa Const. art. I,

§ 6.

       The first step of an equal protection claim is to identify the classes

of similarly situated persons singled out for differential treatment. Ames

Rental Prop. Ass'n v. City of Ames, 736 N.W.2d 255, 259 (Iowa 2007).
                                     6
      If the statute treats similarly situated persons differently, the
      court must then determine what level of review is required—
      strict scrutiny or rational basis. A statute is subject to
      strict-scrutiny analysis—the state must show the
      classification is narrowly tailored to a compelling state
      interest—when it classifies individuals “in terms of their
      ability to exercise a fundamental right or when it classifies or
      distinguishes persons by race or national origin.” All other
      statutory classifications are subject to rational-basis review
      in which case the defendant must show the classification
      bears no rational relationship to a legitimate government
      interest.

Wright, 747 N.W.2d at 216 (citing In re Det. of Williams, 628 N.W.2d 447,
452 (Iowa 2001)).

      Willard fails to identify the classes of similarly situated persons

singled out for differential treatment by the statute. See State v. Philpott,

702 N.W.2d 500, 503 (Iowa 2005) (stating “[d]efendant’s equal-protection

argument must fail because she has identified no similar class of persons

that is treated more favorably under the act than she was”). In Wright,

the defendant argued section 692A.2A violated his right to equal

protection because he claimed the law was more likely to be enforced

against sex offenders on probation as opposed to sex offenders not

currently on probation. Wright, 747 N.W.2d at 216–17. We held the two

groups were not similarly situated because one group is subject to state
monitoring while the other is not.       Id. at 217.   We also noted Wright

failed to show section 692A.2A treated the classes differently. Id. While

we acknowledged there may be some truth to Wright’s enforcement

argument, we noted Wright had failed to show sex offenders not on

probation escaped prosecution for violating section 692A.2A. Id.

      Willard takes a different tack.        He attempts to trigger strict

scrutiny by claiming section 692A.2A “severely impairs his ability to

make a home with his family,” which he deems a fundamental right. See

Moore v. City of E. Cleveland, 431 U.S. 494, 499, 97 S. Ct. 1932, 1935,
                                      7

52 L.Ed.2d 531, 537 (1977) (striking down a zoning ordinance because it

unconstitutionally interfered with “freedom of personal choice in matters

of marriage and family life” by “select[ing] certain categories of relatives

who may live together and declar[ing] that others may not”).            We

disagree.

      “[A]n alleged infringement of a familial right is unconstitutional

only when an infringement has a direct and substantial impact on the
familial relationship.” Seering, 701 N.W.2d at 663. The two-thousand-

foot rule does not prevent sex offenders from living with their families.

Willard’s real complaint is the rule prevents him from living in the house

of his choosing.    However, in Seering, we held “freedom of choice in

residence is . . . not a fundamental interest entitled to the highest

constitutional protection.”   Id. at 664.   Thus, “an interest in choice of

residency is entitled to only rational basis review.” Id.

      Under the rational-basis test, we must determine whether the two-

thousand-foot rule is rationally related to a legitimate governmental

interest.   Ames Rental Prop. Ass'n, 736 N.W.2d at 259.         Under this

deferential standard, the law is valid unless the relationship between the

classification and the purpose behind it is so weak the classification
must be viewed as arbitrary or capricious. Id. A statute is presumed

constitutional and the challenging party has the burden to “negat[e]

every reasonable basis that might support the disparate treatment.” Id.

      In Seering, we found a reasonable fit between the government

interest (public safety) and the means utilized by the State to advance

that interest (the two-thousand-foot restriction). Seering, 701 N.W.2d at

665. Although the two-thousand-foot rule is not necessarily the perfect

protection against the danger posed by sex offenders, “perfection is not

necessary to meet the rational basis standard.” Id. We have previously
                                           8

acknowledged “when applying a rational basis test under the Iowa

Constitution, changes in the underlying circumstances can allow us to

find a statute no longer rationally relates to a legitimate government

purpose.”      Groves, 742 N.W.2d at 93.              However, Willard has not

articulated any reason why our conclusion in Seering was incorrect and

has not developed an evidentiary basis for this court to conclude the

statute fails to promote a legitimate government interest.                Instead, he
argues he should have an unfettered right to choose his house.1

Because we rejected that argument in Seering, this claim must fail.

       C.     Procedural Due Process.            Willard claims section 692A.2A

denies him procedural due process under the Fourteenth Amendment

and article I, section 9 of the Iowa Constitution. “ ‘A person is entitled to

procedural due process when state action threatens to deprive the

person of a protected liberty or property interest.’ ” Seering, 701 N.W.2d

at 665 (quoting Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d

682, 690 (Iowa 2002)). Accordingly, the first step in any procedural due

process inquiry is to determine whether a protected liberty or property

interest is involved. Id. Such liberty interests have their source in the

Federal Constitution and “include such things as freedom from bodily

restraint, the right to contract, the right to marry and raise children, and

the right to worship according to the dictates of a person’s conscience.”

Id. Protected property interests “ ‘are created and their dimensions are

defined’ not by the Constitution but by an independent source such as

state law.” Id. (citation omitted).


       1Willard  does claim he will “face a huge financial loss if forced to sell his
property and buy another to replace it.” Even if that were true, he bought his house a
few days after the Eighth Circuit found the two-thousand-foot rule to be constitutional.
If he was hoping the court’s panel decision would be reversed en banc, that was a risk
he chose to accept when purchasing the house.
                                     9

      Once it is determined a protected interest is at issue, we weigh

three factors to determine what process is due:

      First, the private interest that will be affected by the official
      action; second, the risk of an erroneous deprivation of such
      interest through the procedures used, and the probable
      value, if any, of additional or substitute procedural
      safeguards; and finally, the Government’s interest, including
      the function involved and the fiscal and administrative
      burdens that the additional or substitute procedural
      requirement[s] would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d

18, 33 (1976). At the very least, procedural due process requires “notice

and opportunity to be heard in a proceeding that is ‘adequate to

safeguard the right for which the constitutional protection is invoked.’ ”

Seering, 701 N.W.2d at 665–66 (quoting Bowers, 638 N.W.2d at 691).

However, “ ‘[n]o particular procedure violates [due process] merely

because another method may seem fairer or wiser.’ ”             Id. (quoting

Bowers, 638 N.W.2d at 691).

      Willard contends that, because section 692A.2A interferes with his

right to contract, he is entitled to a predeprivation hearing. See Bowers,

638 N.W.2d at 691 (recognizing the right to contract is a protected liberty

interest). However, his right to contract is not directly affected by the

two-thousand-foot rule.     Nothing prevents him from purchasing the

house, only from living there.

      Assuming arguendo a protected liberty or property interest is at

stake, Willard has failed to prove the procedures in place are

constitutionally inadequate.     Willard contends he is entitled to an

individualized hearing to determine whether he is dangerous before being

subjected to the residency restrictions. This argument was rejected in

Miller. There, the Eighth Circuit said “ ‘due process does not entitle [a

person] to a hearing to establish a fact that is not material under the
                                     10

[state] statute.’ ”   Miller, 405 F.3d at 709 (quoting Conn. Dep't of Pub.

Safety v. Doe, 538 U.S. 1, 7, 123 S. Ct. 1160, 1164, 155 L. Ed. 2d 98,

104 (2003)).

        The [residency] restriction applies to all offenders who have
        been convicted of certain crimes against minors, regardless
        of what estimates of future dangerousness might be proved
        in individualized hearings.       Once such a legislative
        classification has been drawn, additional procedures are
        unnecessary, because the statute does not provide a
        potential exemption for individuals who seek to prove that
        they are not individually dangerous or likely to offend
        against neighboring schoolchildren.

Id. The court concluded,

        [u]nless the [sex offenders] can establish that the substantive rule
        established by the legislative classification conflicts with some
        provision of the Constitution, there is no requirement that the
        State provide a process to establish an exemption from the
        legislative classification.

Id.

        In Seering, we rejected a similar argument for a hearing to request

“an exemption based on difficulty of finding a suitable place to live

outside the two-thousand-foot restriction.” Seering, 701 N.W.2d at 666.

We said “[b]ecause there are no exemptions in the statute, Seering was

not entitled to a hearing before he was charged under the statute to

attempt to persuade the court that the statute should not be applied to

him.”    Id.   Moreover, we found “the minimum protections necessary

under due process would be met by the notice under the statute and the

trial.” Id. We see no reason to revisit our conclusion in Seering. Section

692A.2A does not violate procedural due process.

        D.     Right to Travel.   Finally, Willard claims section 692A.2A

violates the right to interstate travel by limiting the ability of sex

offenders to establish residences in towns or cities.     He states section

692A.2A deters sex offenders from immigrating to Iowa from other states.
                                        11

The fundamental right to interstate travel recognized by the Supreme

Court protects interstate travelers against two sets of burdens:       “the

erection of actual barriers to interstate movement” and “being treated

differently” from intrastate travelers. Bray v. Alexandria Women’s Health

Clinic, 506 U.S. 263, 276–77, 113 S. Ct. 753, 763, 122 L. Ed. 2d 34, 51

(1993).

      There are at least three problems with this claim. First, Willard
did not preserve error on his right to travel claim. He failed to brief that

ground to the district court and failed to obtain a ruling on that basis.

See Kimm v. Kimm, 464 N.W.2d 468, 475 (Iowa Ct. App. 1990) (holding

“the trial court may not be put in error unless the issue was presented

for ruling, and the failure to obtain a ruling is inexcusable unless the

court refuses or fails to rule after a ruling is requested”).

      Second, he has failed to mention how his right to interstate travel

has somehow been impinged.         A “litigant cannot ‘borrow the claim of

unconstitutionality of another.’ ” State v. Hepburn, 270 N.W.2d 629, 631

(Iowa 1978).

      Finally, Willard fails to recognize the Eighth Circuit considered and

rejected this claim in Miller. There, the court said section 692A.2A

      imposes no obstacle to a sex offender’s entry into Iowa, and
      it does not erect an “actual barrier to interstate movement.”
      There is “free ingress and regress to and from” Iowa for sex
      offenders, and the statute thus does not “directly impair the
      exercise of the right to free interstate movement.” Nor does
      the Iowa statute violate principles of equality by treating
      nonresidents who visit Iowa any differently than current
      residents, or by discriminating against citizens of other
      States who wish to establish residence in Iowa.

Miller, 405 F.3d at 712 (citations omitted). For these reasons, Willard’s

right to travel claim must also fail.
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      IV.    Conclusion.

      We conclude Iowa Code section 692A.2A is not a bill of attainder

and does not violate equal protection or procedural due process. Willard

failed to preserve for appeal his right to travel claim.

      AFFIRMED.
