                 IN THE SUPREME COURT OF IOWA
                              No. 08–0393

                            Filed July 2, 2010


IN RE THE DETENTION OF
ALAN C. FOWLER,

ALAN C. FOWLER,

      Appellant.



      Appeal from the Iowa District Court for Clinton County, Charles H.

Pelton, Judge.



      On appeal from his commitment as a sexually violent predator, the

respondent argues the district court erred in denying his motion to

dismiss based on the State’s failure to prosecute the civil commitment

action within the ninety-day time period provided by Iowa Code section

229A.7(3)   (2007).     REVERSED      AND     CASE    REMANDED       FOR

DISMISSAL.



      Mark C. Smith, State Appellate Defender, and Amy Kepes,

Assistant Public Defender, for appellant.



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

Goettsch, Assistant Attorneys General, for appellee State of Iowa.
                                           2

BAKER, Justice.

       On appeal from his commitment as a sexually violent predator

(SVP), the respondent, Alan Fowler, argues the district court erred in

denying his motion to dismiss based on the State’s failure to prosecute

the civil commitment action within the ninety-day time period provided

by Iowa Code section 229A.7(3) (2007), and in admitting evidence of

criminal charges, allegations, and suspicions that did not result in

convictions and which violated his right to confront the witnesses against

him. 1 We hold that the ninety-day time limit was mandatory. Because
the State failed to bring Fowler to trial within ninety days and did not

request a continuance nor provide a showing of good cause, the case

must be dismissed.

       I. Background Facts and Proceedings.

       On October 14, 2005, Fowler was convicted of willful injury

resulting in bodily injury and going armed with intent.                    For these

convictions, he served two years in the Anamosa State Penitentiary. He

was scheduled to be released on October 17, 2007.

       On September 27, 2007, the State filed a petition alleging that

Fowler is an SVP as defined in Iowa Code chapter 229A and that

pursuant to this chapter, he should be committed to the custody of the

department of human services to be held in a secure facility for control,

care, and treatment until such time as his mental abnormality has so

changed that he is safe to be at large in the community.                  A probable

cause hearing was held on October 11, 2007. It was determined that

Fowler’s previous convictions were for sexually motivated offenses



       1Because   we find Fowler’s first claim of error dispositive, we need not address
his evidentiary claims.
                                    3

according to Iowa Code sections 229A.2(9) and 229A.2(10).              The

court subsequently determined probable cause existed to believe Fowler

was an SVP and set the case for trial on February 11, 2008.

      On January 10, 2008, Fowler filed a motion to dismiss the State’s

petition. Fowler claimed that under Iowa Code section 229A.7(3) he had

a statutory right to a speedy trial within ninety days of the completion of

the probable cause hearing. Fowler’s probable cause hearing was held

on October 11, 2007; therefore, the ninetieth day after the hearing and

the last day to bring him to trial was January 9, 2008. His trial was set

for February 11. On January 10, he filed a motion claiming the State

failed to bring him to trial within the time limit mandated by chapter

229A, and therefore he should be immediately released from the custody

of the department of corrections. The State filed a resistance to Fowler’s

motion to dismiss and a motion to continue the trial for good cause.

      The district court determined the ninety-day time limit for holding

a trial following a finding of probable cause under Iowa Code section

229A.7(3) was directory rather than mandatory and denied Fowler’s

motion to dismiss.     The district court also found that the court’s

scheduling error, Fowler’s failure to request a speedy trial, and the

relatively short period of time in which the scheduled trial date exceeded

the ninety-day limit constituted “good cause” for purposes of Iowa Code

section 229A.7(3).

      Fowler’s trial was held as scheduled on February 11.        The jury

determined that Fowler’s previous crimes of willful injury causing bodily

injury and going armed with intent were sexually motivated and further

concluded Fowler was an SVP.        Accordingly, the court ordered that

Fowler be committed to the custody of the director of the department of

human services for control, care, and treatment until his mental
                                           4

abnormality has changed and he is safe to be discharged.                         Fowler

appealed.

       II. Discussion and Analysis.

       The issue presented for our review is whether the district court

erred in denying Fowler’s motion to dismiss based on the State’s failure

to prosecute the civil commitment action within the ninety-day time

period provided by Iowa Code section 229A.7(3).                   We review issues

concerning the statutory construction of Iowa Code chapter 229A for

correction of errors at law. In re Det. of Shaffer, 769 N.W.2d 169, 172

(Iowa 2009).

       A. Ninety-day time limit. Iowa Code section 229A.7(3) states:

       Within ninety days after either the entry of the order waiving
       the probable cause hearing or completion of the probable
       cause hearing held under section 229A.5, the court shall
       conduct a trial to determine whether the respondent is a
       sexually violent predator. The respondent or the attorney for
       the respondent may waive the ninety-day trial requirement
       as provided in this section; however, the respondent or the
       attorney for the respondent may reassert a demand and the
       trial shall be held within ninety days from the date of filing
       the demand with the clerk of court. . . .

(Emphasis added). 2 Fowler claims that the plain language of this statute
requires the court to conduct a trial within ninety days of the probable

cause hearing. 3      For reasons that follow, we agree and hold that the

legislature intended the ninety-day time limit to be mandatory such that

a violation will invalidate subsequent actions.



       2Iowa  Code section 229A.7 was amended by the Iowa Legislature in 2009, but
this amendment does not affect our analysis of this case. See 2009 Iowa Acts ch. 41,
§ 228 (codified at Iowa Code § 229A.7(5) (Supp. 2009)).
       3Alternatively, Fowler argues the State’s failure to conduct a trial within ninety

days violates his due process rights under the United States Constitution and the Iowa
Constitution. Because we find merit in his statutory construction argument, we do not
address his constitutional claims.
                                      5

      Our    rules    of     statutory interpretation are well established.

“ ‘When we interpret a statute, we attempt to give effect to the general

assembly’s intent in enacting the law. Generally, this intent is gleaned

from the language of the statute.’ ”      Cubit v. Mahaska County, 677

N.W.2d 777, 781 (Iowa 2004) (quoting Griffin Pipe Prods. Co. v. Guarino,

663 N.W.2d 862, 864–65 (Iowa 2003)). “ ‘We do not search for meaning

beyond the express terms of a statute when the statute is plain and its

meaning is clear.’ ” Id. at 781–82 (quoting In re Name Change of Reindl,

671 N.W.2d 466, 469 (Iowa 2003)). Under the plain language of the

statute, the trial must be held within ninety days of the probable cause

hearing.

      In a statute, the word “shall” generally connotes a mandatory duty.

Jefferson County Farm Bureau v. Sherman, 208 Iowa 614, 618, 226 N.W.

182, 185 (1929).     The Iowa Legislature has determined that “[u]nless

otherwise specifically provided by the general assembly . . . [t]he word

‘shall’ imposes a duty.” Iowa Code § 4.1(30). In past criminal cases, “we

have [also] interpreted the term ‘shall’ in a statute to create a mandatory

duty, not discretion.”     State v. Klawonn, 609 N.W.2d 515, 522 (Iowa

2000); see also State v. Luckett, 387 N.W.2d 298, 301 (Iowa 1986)

(stating use of the word “shall” creates mandatory action unless the

context clearly indicates otherwise); State v. Moyer, 382 N.W.2d 133,

134–35 (Iowa 1986).

      As previously stated, we look to the legislative intent. Cubit, 677

N.W.2d at 781. We need not guess at the legislature’s intent in enacting

this chapter because an explanation is contained within the bill.      The

explanation reads:

      [S]exually violent predators generally have antisocial
      personality features that are unamenable to existing mental
                                     6
      illness treatment modalities and that render them likely to
      engage in sexually violent behavior. The general assembly
      finds that sexually violent predators’ likelihood of engaging
      in repeat acts of predatory sexual violence is high and that
      the existing involuntary commitment procedure under
      chapter 229 is inadequate to address the risk these sexually
      violent predators pose to society.
             The general assembly further finds that the prognosis
      for rehabilitating sexually violent predators in a prison
      setting is poor, because the treatment needs of this
      population are very long-term, and the treatment modalities
      for this population are very different from the traditional
      treatment modalities available in a prison setting . . . .
      Therefore, the general assembly finds that a civil
      commitment procedure for the long-term care and treatment
      of the sexually violent predator is necessary. The procedures
      regarding sexually violent predators should reflect legitimate
      public safety concerns, while providing treatment services
      designed to benefit sexually violent predators who are civilly
      committed. . . .

Iowa Code § 229A.1. A primary purpose of the statute is protection of

the public, which is achieved through the confinement of SVPs for long-

term treatment. Atwood v. Vilsack, 725 N.W.2d 641, 651 (Iowa 2006);

see also In re Hendricks, 912 P.2d 129, 136 (Kan. 1996) (“It is clear that

the overriding concern of the legislature is to continue the segregation of

sexually violent offenders from the public.”), overruled by Kansas v.

Hendricks, 521 U.S. 346, 368–69, 117 S. Ct. 2072, 2085, 138 L. Ed. 2d

501, 519 (1997). Because the Iowa Legislature recognized that long-term

confinement for treatment constitutes a potential deprivation of a liberty

interest, the legislature included certain procedural protections in the

SVP civil commitment act that are akin to those accorded criminal

offenders who face imprisonment. See Iowa Code § 229A.7 (providing for

a commitment procedure that contains many of the due process rights

accorded criminal defendants). The ninety-day time limit for trial is one

of those protections.
                                      7

      The history of Iowa’s SVP act is also instructive. The language of

Iowa Code section 229A.7 was copied almost verbatim from a Kansas

statute after the United States Supreme Court found the Kansas

Sexually Violent Predator Act to be constitutional. Hendricks, 521 U.S.

at 368–69, 117 S. Ct. at 2085, 138 L. Ed. 2d at 519.

      In Hendricks, the United States Supreme Court determined that

double jeopardy protections did not attach to the identical Kansas Act

because the Act’s purpose was not punitive.          Id.   Rather, the Court

determined that the Kansas Act, like many other involuntary civil

commitment statutes, was intended to segregate sexually violent

offenders from the public. See id. at 358, 117 S. Ct. at 2080, 138 L. Ed.

2d at 513 (stating the Kansas Act was similar to other involuntary civil

confinement statutes which serve to confine those who suffer from an

impairment that renders them dangerous to the public).              The Kansas

SVP Act was therefore deemed civil in nature. Id. at 369, S. Ct. at 2086,

138 L. Ed. 2d at 520.

      The Supreme Court, however, recognized that while some

      [s]tates have in certain narrow circumstances provided for
      the forcible civil detainment of people who are unable to
      control their behavior and who thereby pose a danger to the
      public health and safety[,] [the Court has] consistently
      upheld such involuntary commitment statutes [only when]
      the confinement takes place pursuant to proper procedures
      and evidentiary standards.

Id. at 357, 117 S. Ct. at 2079–80, 138 L. Ed. 2d at 512; see also Allen v.

Illinois, 478 U.S. 364, 369, 106 S. Ct. 2988, 2992, 92 L. Ed. 2d 296, 304

(1986) (declaring that civil commitment statutes for sexually violent

predators are civil in nature, even though they are similar to criminal

proceedings    because   they   are   accompanied     by   strict    procedural

safeguards).    The     Hendricks Court    further    determined      that   the
                                      8

involuntary commitment of SVPs, a small        “subclass    of   dangerous

persons,” was not in contravention of the United States Constitution.

Hendricks, 521 U.S. at 357, 117 S. Ct. at 2079–80, 138 L. Ed. 2d at 512.

The Court explained that it reached this conclusion because “[t]he

numerous procedural and evidentiary protections afforded [in the

statute] demonstrate that the Kansas Legislature has taken great care to

confine only a narrow class of particularly dangerous individuals, and

then only after meeting the strictest procedural standards.” Id. at 364,

117 S. Ct. at 2083, 138 L. Ed. 2d at 517. A strong dissent from four

justices noted the punitive nature of the confinement statute and

concluded that “where so significant a restriction of an individual’s basic

freedoms is at issue, a State cannot cut corners.” Id. at 396, 117 S. Ct.

at 2098, 138 L. Ed. 2d at 536 (Breyer, J., dissenting).

      Although the Kansas Act passed muster, it did so, to a great

extent, because of the procedural and evidentiary protections contained

in the Act. Id. at 364, 117 S. Ct. at 2083, 138 L. Ed. 2d at 517. We have

noted the same.         See Atwood, 725 N.W.2d at 648 (“The significant

procedural protections afforded detainees during the pre-trial stage in

SVP cases strongly influence our determination that the statute is

narrowly tailored.”).

      In construing a statute identical to Iowa Code section 229A.7, the

Kansas Supreme Court found the time limit imposed was “jurisdictional,

mandatory, and a statutory right granted to respondents under the Act.”

In re Searcy, 49 P.3d 1, 10 (Kan. 2002).       The Kansas Legislature, in

response to the Searcy decision, amended its Act to provide that none of

the time limits in the SVP Act were intended to be mandatory or to

otherwise affect the district courts’ subject matter jurisdiction. See In re

Hunt, 82 P.3d 861, 870 (Kan. Ct. App. 2004). To effect this clarification,
                                             9

two amendments were enacted. Id. As                 amended        in   2003,     Kansas

Statutes Annotated section 59–29a01 now reads:

       Notwithstanding any other evidence of legislative intent, it is
       hereby declared that any time requirements set forth in
       K.S.A. 59–29a01 et seq. . . . either as originally enacted or as
       amended, are intended to be directory and not mandatory
       ....

(Emphasis added). The Kansas Legislature also added a new subsection

to the Act providing that any time limits “are not jurisdictional.” Kan.

Stat. Ann. § 59–29a06 (2003). No such language appears in Iowa’s SVP

civil commitment act. See Iowa Code ch. 229A.

       Like a criminal defendant’s right to a speedy trial, due process

requires that an SVP be entitled to an expeditious trial because his

liberty is being infringed.         Swanson v. Civil Commitment Unit for Sex

Offenders, 737 N.W.2d 300, 308 (Iowa 2007) (“[T]hose who are

involuntarily committed retain a liberty interest in the requirements and

procedures of chapter 229A.”).             Although not required to do so, we

believe that the legislature intended to create a bright-line rule to avoid

any due process problems.            See, e.g., State v. Miller, 637 N.W.2d 201,

204 (Iowa 2001) (stating that the speedy trial rule for criminal defendants
is more stringent than is actually required by the Constitution). Given

the lack of clarifying language in Iowa Code section 229A.7(3) concerning

the nature of the time limits in the act, the legislature’s mandate that the

word “shall” imposes a duty, and the legislature’s recognition of the due

process requirement of an expeditious trial, we find that the legislature

intended the ninety-day time limit to be mandatory. 4



       4This  determination, however, may appear to conflict with our decision in Taylor
v. Department of Transportation, 260 N.W.2d 521 (Iowa 1977). In Taylor, the appellant’s
driver’s license was revoked for refusing to consent to a chemical test after his arrest for
operating a motor vehicle while intoxicated. 260 N.W.2d at 522. Taylor claimed the
                                          10

       Having determined that the             time     limitation     for     trial   is

mandatory, we must determine the remedy for its violation. While it is

clear that the language of the statute is mandatory, this is not the end of

our analysis.      “Mandatory and directory statutes each impose duties.

The difference between them lies in the consequence for failure to

perform the duty.” Taylor v. Dep’t of Transp., 260 N.W.2d 521, 522 (Iowa

1977).    A mandatory duty “is essential to the main objective of the

statute . . . and a violation will invalidate subsequent proceedings under

it.” Id. at 522–23. If a duty is directory, a failure to perform the duty will

not invalidate subsequent proceedings unless the individual has suffered

prejudice as a result of the violation. Id. at 523; see also Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Attorney Doe No. 639, 748 N.W.2d 208, 210

(Iowa 2008). The issue of whether a duty is mandatory or directory does

not refer to “whether a statutory duty is obligatory or permissive but

instead relates to whether the failure to perform an admitted duty will

have the effect of invalidating the governmental action which the

requirement affects.” Taylor, 260 N.W.2d at 523.
       We assume the legislature was not operating in a vacuum when it

imposed the ninety-day limitation. We assume also that the legislature

was aware that we have consistently upheld the enforcement of such

bright-line rules by requiring dismissal, whether the time limit is civil or

criminal. In the civil context, we have held a case must be dismissed for

failure to bring the action within the applicable statute of limitations.


_______________________________
department of transportation lost jurisdiction when it failed to provide him with a
hearing within twenty days of receiving his request for a hearing as required by the Iowa
Code. Id. We determined that the time limitation was directory, not mandatory. Id. at
523. The determinative factor for finding the time limitation directory was because
Taylor had not been prejudiced by the delay. Id. at 523–24. Fowler, however, was
deprived of his liberty as a result of the delay and has suffered prejudice.
                                      11

See, e.g., Bob McKiness Excavating      & Grading, Inc. v. Morton Bldgs.,

Inc., 507 N.W.2d 405, 408 (Iowa 1993) (“A statute of limitations bars,

after a certain period of time, the right to prosecute an accrued cause of

action.”). In the criminal context, the appropriate remedy for violation of

the speedy trial rule is dismissal unless good cause is shown. State v.

Nelson, 222 N.W.2d 445, 449–50 (Iowa 1974); see also State v. Goff, 244

N.W.2d 579, 582 (Iowa 1976). We have also found dismissal appropriate

where the grievance commission failed to appeal a decision of the

attorney disciplinary board within the ten-day filing requirement.

Attorney Doe, 748 N.W.2d at 210.

      Any remedy other than dismissal would render a time limitation for

trial meaningless. State v. Johnson, 217 N.W.2d 609, 612 (Iowa 1974).

“Every limitation statute sets up an arbitrary date after which certain

actions cannot be brought or certain rights cannot be enforced.       One

cannot escape the effect of such statutes by showing they were only

violated a little bit.”   Nelson, 222 N.W.2d at 449; see also Barker v.

Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 2188, 33 L. Ed. 2d 101, 112

(1972) (stating that although dismissal is a serious consequence for a

speedy trial violation, “it is the only possible remedy”).

      Fowler’s probable cause hearing was held on October 11, 2007,

and his trial was set for February 11, 2008, in violation of the ninety-day

time limitation. We hold that the legislature created a bright-line rule

which mandates that a trial occur within ninety days and dismissal is

required unless good cause exists under the statute for delaying the trial

beyond that time limit.

      B. Cause for Delay. Iowa Code section 229A.7(3) states that the

ninety-day time limit may be waived. It also provides:
                                 12
      The trial may be continued upon the request of either
      party and a showing of good cause, or by the court on its
      own motion in the due administration of justice, and when
      the respondent will not be substantially prejudiced. In
      determining what constitutes good cause, the court shall
      consider the length of the pretrial detention of the
      respondent.

Iowa Code § 229A.7(3). The State did not file a motion to continue trial

for good cause until after the ninety days had passed and the motion to

dismiss was filed.

      The district court determined that the court’s scheduling error,

Fowler’s failure to request a speedy trial, and the relatively short period
of time by which the scheduled trial date exceeded the ninety-day limit

constituted “good cause” for the purposes of Iowa Code section

229A.7(3). As a prerequisite to extending the trial date beyond the ninety

days, the statute requires a request by either party or action by the

court. Neither a request was made nor did any action by the court occur

prior to the ninety days expiring. The case cannot be resurrected by a

motion after the fact.   See, e.g., Doland v. Boone County, 376 N.W.2d

870, 873 (Iowa 1985) (holding that a motion for continuance under Iowa

Rule of Civil Procedure 215.1, now rule 1.944, must be filed before the

automatic dismissal or the court is without jurisdiction to grant a motion

for continuance).

      Even if we were able to address the issue of whether good cause

existed, we would not find it in this instance.      When we determine

whether good cause for a delay exists, we focus on only one factor: “ ‘the

reason for the delay.’ ” State v. Nelson, 600 N.W.2d 598, 601 (Iowa 1999)

(quoting State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980)). Whether

the miscalculation of the trial date occurred because of the court’s

scheduling or because of the inattention of the State, such an error is not

justification for missing the deadline.    Id. at 602; see also State v.
                                    13

Sassman, 226 N.W.2d 808, 809          (Iowa 1975) (declaring a shortage of

clerical help does not constitute good cause). The State has provided no

other justification for missing the deadline other than Fowler’s failure to

assert a right to speedy trial. Although the assertion of a speedy trial

demand is a factor to be considered in a criminal case, State v. Winters,

690 N.W.2d 903, 908 (Iowa 2005), the State has fought long and hard to

assert that this act is a civil action. Atwood, 725 N.W.2d at 649 n. 11; In

re Det. of Garren, 620 N.W.2d 275, 280–81 (Iowa 2000). We are aware of

no requirement that a defendant in a civil action demand to be brought

to trial. Further, even in the criminal context we have noted that “[i]t is

axiomatic that [a defendant has] no duty to bring himself to trial.”

Nelson, 600 N.W.2d at 602.

      We hold that the ninety-day time limit in Iowa Code section

229A.7(3) is mandatory and because the State failed to bring Fowler to

trial within ninety days, and did not request a continuance nor provide a

showing of good cause, the case must be dismissed and the defendant

released. Because we have determined that the State violated the ninety-

day time limit, we need not address Fowler’s due process claim.

      III. Disposition.

      The legislature has mandated that an SVP must be brought to trial

within ninety days of the probable cause hearing.      The State failed to

bring Fowler to trial within the ninety days. The case is remanded to be

dismissed and Fowler released from custody.

      REVERSED AND CASE REMANDED FOR DISMISSAL.
