               IN THE SUPREME COURT OF IOWA
                               No. 09–0500

                        Filed September 23, 2011


IN RE THE DETENTION OF
HAROLD JOHNSON,

HAROLD JOHNSON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Story County, William J.

Pattinson, Judge.



      Sexually violent predator contends the district court erred in

denying his discharge from civil commitment because the State failed to

conduct his final hearing within the sixty-day timeframe provided in Iowa

Code section 229A.8(5)(e) (2009). DECISION OF COURT OF APPEALS

VACATED AND JUDGMENT OF DISTRICT COURT AFFIRMED.



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

Assistant Public Defender, for appellant.



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

Krisko, Assistant Attorneys General, for appellee.
                                     2

ZAGER, Justice.

      On further review we must determine whether Iowa Code section

229A.8(5)(e) (2009) entitles a sexually violent predator (SVP) to be

discharged from civil commitment if the district court does not

commence a final hearing within sixty days of the court’s determination

that a final hearing is required. We find section 229A.8(5)(e) requires the

district court to conduct the final hearing within sixty days, but the

court’s failure to conduct a hearing within sixty days entitles an SVP to

civil remedies, not discharge.    We therefore vacate the decision of the

court of appeals and affirm the district court’s order denying discharge.

      I. Background Facts and Proceedings.

      On July 13, 2001, Harold Johnson was determined to be an SVP

and was civilly committed pursuant to Iowa Code chapter 229A.               In

2006, Johnson underwent his annual review to determine whether facts

existed to warrant a final hearing to adjudicate whether Johnson still

possessed a “mental abnormality” that predisposed him to commit

sexually violent offenses.       The district court determined Johnson

presented no competent evidence that warranted a final hearing. After

the adverse determination, Johnson filed a petition for writ of certiorari

with this court, which we granted. We determined Johnson presented

evidence which would permit a fact finder to reasonably conclude

Johnson’s mental abnormality had changed and, that if discharged, he

was not likely to engage in sexually violent acts. We therefore ordered

the district court to conduct a final hearing for Johnson. See Johnson v.

Iowa Dist. Ct., 756 N.W.2d 845, 851 (Iowa 2008). Procedendo was issued

on November 3, 2008.

      On January 2, 2009, sixty days after procedendo was entered, the

parties participated in a teleconference to schedule Johnson’s final
                                      3

hearing.     The district court scheduled Johnson’s final hearing for

February 24, 2009. During the teleconference, Johnson noted he would

be bringing a motion for discharge or sanctions on speedy trial grounds.

Johnson filed his motion for discharge or sanctions on January 8, 2009.

The motion asked for Johnson to be discharged or, alternatively, for the

State to be restricted from presenting expert evidence at Johnson’s final

hearing. On February 2, 2009, the district court held a hearing on the

motion. Johnson asserted Iowa Code section 229A.8(5)(e) required his

final hearing to be commenced within sixty days of the determination he

was entitled to a hearing. Additionally, because his final hearing was not

held within the sixty-day time limit, Johnson argued he was entitled to

be discharged from the SVP civil commitment program.             The district

court denied Johnson’s motion for discharge or sanctions, finding there

was no statutory consequence for failing to meet the final hearing

scheduling deadline outlined in Iowa Code section 229A.8(5)(e) and,

therefore, any breach did not strip the district court of its jurisdiction.

      At Johnson’s final hearing, the jury concluded Johnson still

suffered a mental abnormality that predisposed him to commit sexually

violent offenses. The district court entered judgment denying Johnson’s

discharge.   Johnson filed a timely notice of appeal.       He appealed the

district court’s order denying his motion for discharge or sanctions. The

appeal was transferred to the court of appeals.        The court of appeals

affirmed the district court’s order finding Iowa Code section 229A.8(5)(e)

was directory rather than mandatory. Additionally, the court of appeals

concluded the provision does not require a trial to be conducted within

sixty days, only that the trial be scheduled within sixty days. Johnson

petitioned for further review, which we granted.
                                            4

       II. Standard of Review.

       Johnson asks us to determine the meaning of Iowa Code section

229A.8(5)(e).       We review questions of statutory interpretation for

correction of errors at law. In re Det. of Fowler, 784 N.W.2d 184, 187

(Iowa 2010).

       III. Issues.

       We are confronted with two related, but divergent, issues. First,

we must determine whether the district court violated Iowa Code section

229A.8(5)(e) when it failed to commence Johnson’s final hearing within

sixty days.     If we find a violation, then we must determine whether

section 229A.8(5)(e) entitles Johnson to discharge. 1

       IV. The Sixty-Day Requirement.

       Iowa Code section 229A.8(5)(e) states:
              e. The burden is on the committed person to show by
       a preponderance of the evidence that there is competent
       evidence which would lead a reasonable person to believe a
       final hearing should be held to determine either of the
       following:

             (1) The mental abnormality of the committed person
       has so changed that the person is not likely to engage in
       predatory acts constituting sexually violent offenses if
       discharged.

             (2) The committed person is suitable for placement in a
       transitional release program pursuant to section 229A.8A.

             If the committed person shows by a preponderance of
       the evidence that a final hearing should be held . . . the court
       shall set a final hearing within sixty days of the
       determination that a final hearing be held.



       1Johnson    filed a “Motion for Discharge or Sanctions,” asking for discharge or, in
the alternative, for sanctions against the State to prevent the State from offering expert
evidence against Johnson at the final hearing. On appeal, Johnson has only argued
and asked for discharge; Johnson has not referred to his sanctions request. Therefore,
we will not address whether the district court erred in denying Johnson’s requested
sanctions.
                                      5

Iowa Code § 229A.8(5)(e) (emphasis added). The precise issue we seek to

resolve is whether the phrase “shall set a final hearing within sixty days”

requires the district court to commence the final hearing within sixty

days or whether it merely requires the district court to schedule the final

hearing within sixty days.

      When    interpreting   a   statute,   we   attempt   to   ascertain   the

legislature’s intent in enacting the law. Fowler, 784 N.W.2d at 187. “We

do not search for meaning beyond the express terms of a statute when

the statute is plain and its meaning is clear.”        Id. (quoting Cubit v.

Mahaska Cnty., 677 N.W.2d 777, 781–82 (Iowa 2004)) (internal quotation

marks omitted).    The ordinary and common meaning of the statute’s

words is dependent on the context and setting in which they are used.

State v. Wiederien, 709 N.W.2d 538, 541 (Iowa 2006).              If the plain

language is not clear, then we must review “the statute’s ‘subject matter,

the object sought to be accomplished, the purpose to be served,

underlying policies, remedies provided, and the consequences of the

various interpretations.’ ” Cox v. State, 686 N.W.2d 209, 213 (Iowa 2004)

(quoting State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003)).

      We begin our analysis by considering the meaning of the phrase

“shall set a final hearing within sixty days.” The word “set” has various

meanings depending on its context. For example, when a person states

they will “set a fire” the person is using the word “set” to mean “start” or

“commence,” but a person that states they must “set a wedding date”

may use the word “set” to mean “schedule.” Merriam-Webster’s Collegiate

Dictionary 1138–39 (11th ed. 2004).         The legislature instructed the

district court to “set a final hearing within sixty days,” and within the

context of lawyers, courts, and common scheduling practices, “set” is

interchangeably used to mean both “schedule” and “conduct.” Therefore,
                                      6

dissecting every possible dictionary or grammatical use of the word “set”

is not necessary.

      However, the legislature’s instruction to the district court to “set a

final hearing within sixty days” carries little utility if we construe the

provision to merely require the district court to schedule a hearing within

sixty days. The legislature added this sixty-day requirement as part of a

comprehensive amendment to chapter 229A in 2002 which increased the

procedural protections given to civilly committed SVPs. See 2002 Iowa

Acts ch. 1139, §§ 1–27 (codified as amended in Iowa Code ch. 229

(2003)). If “set” is construed to only require the district court to schedule

a hearing within sixty days, then little protection is provided to the SVP

because the provision would permit the district court to actually conduct

the final hearing within any timeframe.          Such a construction makes

section 229A.8(5)(e) constructively surplus language and is inconsistent

with the legislative purpose of the provision.

      We conclude section 229A.8(5)(e) requires the district court to

commence a final hearing within sixty days of the determination a final

hearing is required.    Johnson was not provided a final hearing within

sixty days in violation of his statutory rights.

      V. Remedy.

      After determining Johnson’s final hearing should have commenced

within sixty days, we must now determine what remedy Johnson is

entitled to.    Johnson’s proper remedy is a matter of statutory

construction.    Fowler, 784 N.W.2d at 188–90.          In ascertaining the

legislature’s intent, we look to the language of the statute, its nature and

objects, legislative history, statutory context, and the consequences that

would flow from each construction.         Id. (discussing the history and

development of Iowa’s SVP act); see also Cox, 686 N.W.2d at 213. We
                                           7

note chapter 229A is a civil statute, intended to protect the public

through confinement and treatment of SVPs.                 Atwood v. Vilsack, 725

N.W.2d 641, 651–52 (Iowa 2006). Because confinement creates a risk of

liberty     deprivation,    however,    the    legislature    included     procedural

protections in the SVP civil commitment act to ensure civil commitment

is guided by definite procedures and standards. Fowler, 784 N.W.2d at

188.

         In Fowler, we confronted what remedy a respondent was entitled to

if the State failed to prosecute its SVP civil commitment action within the

ninety-day time limit required under Iowa Code section 229A.7(3)

(2007). 2    Id. at 185.     We held a violation of section 229A.7(3) entitled

Fowler to dismissal of his civil commitment action. Id. at 190–91. Our

reasoning emphasized the legislature included procedural protections to

guard against potential liberty deprivations, and we analogized the

ninety-day period to other bright-line prosecutorial deadlines like speedy

trial statutes that ensure fairness to the accused in a criminal context.

Id. at 189–90.      We noted chapter 229A’s constitutionality significantly

relies    upon    the      procedural    protections     accompanying         its   civil

commitment framework. Id. at 188–90. Implicit in our reasoning was
our concern for the respondent’s liberty interest when the respondent

faces indefinite SVP civil prosecution. Construing section 229A.7(3) to

provide the respondent with a bright-line, speedy trial right mitigated the

harm to a respondent’s liberty and provided the respondent prophylactic

protection against due process violations. Our statutory construction in

Fowler was derived, at its core, from our belief “that the legislature


         2IowaCode section 229A.7(3) requires the State to prosecute SVP civil
commitment actions “[w]ithin ninety days after . . . the order waiving the probable cause
hearing or completion of the probable cause hearing.”
                                           8

intended to create a bright-line [speedy trial] rule to avoid any due

process problems.” 3 Id. at 189.

       We do not find Johnson faces the same risk of liberty deprivation

as Fowler.       Therefore, the need to construe section 229A.8(5)(e) to

contain prophylactic due process protections is not apposite. Johnson is

not a respondent facing civil commitment prosecution.                       He is an

adjudicated SVP.          See Iowa Code § 229A.7(5) (2009) (stating a

unanimous jury must find the respondent to be an SVP beyond a

reasonable doubt at the civil commitment trial). He showed, however,

       by a preponderance of the evidence that there is competent
       evidence which would lead a reasonable person to believe
       [his] mental abnormality . . . has so changed that [he] is not
       likely to engage in predatory acts constituting sexually
       violent offenses if discharged.

Iowa Code § 229A.8(5)(e)(1). Section 229A.8(5)(e), thus, entitled him to a

final evidentiary hearing within sixty days to readjudicate his SVP status.

       Constitutional      framers,     legislatures,    and    courts    have     been

peculiarly sensitive to an accused’s liberty rights. 4 Our society has long

       3Fowler   analyzes whether section 229A.7(3) imposes a mandatory or directory
duty. Fowler, 784 N.W.2d at 189–90. The parties in this appeal also briefed arguments
as to whether section 229A.8(5)(e) imposed a mandatory or directory duty, and the
effect such a construction would have on the district court’s jurisdiction to conduct a
final hearing. The mandatory/directory analysis concerns whether a governmental
agency’s failure to comply with a statutory duty will invalidate the governmental action
to which the statute applies. See Taylor v. Dep’t of Transp., 260 N.W.2d 521, 522–23
(Iowa 1977) (applying dichotomy to department of transportation revocation hearing).
The dichotomy does not apply to courts in setting trials or hearings as courts are bound
by statutes, rules, and due process in making such determinations. While Fowler
employed this dichotomy, the analysis was not essential to resolving that case, nor is
such an analysis necessary in reviewing section 229A.8(5)(e). We decline to craft the
remedy in this case based on a mandatory/directory dichotomy. We instead will look at
the extent to which due process and liberty principles are jeopardized as well as other
familiar tools of statutory construction such as plain language, legislative history, and
statutory context.
       4The initial clause of the Sixth Amendment states, “In all criminal prosecutions,
the accused shall enjoy the right to a speedy . . . trial . . . .” The Supreme Court has
noted the speedy trial right
                                            9

valued speedy trial protections because such rules: (1) prevent undue

and oppressive imprisonment before trial, (2) minimize the harm of

public accusation, and (3) reduce risk that delay will harm the accused’s

ability to defend himself. Smith v. Hooey, 393 U.S. 374, 377–78, 89 S.

Ct. 575, 577, 21 L. Ed. 2d 607, 611 (1969).                  But a person detained

through a robust procedural and evidentiary proceeding, like the

framework contained in chapter 229A, possesses less liberty sensitivities

than an accused facing initial prosecution. See, e.g., Sandin v. Conner,

515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995)

(finding inmates only suffer liberty deprivation when subjected to

“atypical and significant hardship[s] . . . in relation to the ordinary

incidents of prison life”).      SVP detention, pursuant to adjudicated civil

commitment, is not oppressive or punitive, but serves legitimate

rehabilitative and public safety purposes.              In re Det. of Garren, 620

N.W.2d 275, 280 (Iowa 2000) (noting detention of dangerous mentally

unstable persons “has been cited as a classic example of nonpunitive

detention”).    Moreover, section 229A.8(5)(e) applies only to adjudicated

SVPs; the anxiety or harm typically derived from public accusation and

prosecution is not present when the respondent is already fixed to the

SVP classification.        Simply, an initial civil commitment prosecution

__________________________
       has its roots at the very foundation of our English law heritage. Its first
       articulation in modern jurisprudence appears to have been made in
       Magna Carta (1215), wherein it was written, “We will sell to no man, we
       will not deny or defer to any man either justice or right.”
Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 8
(1967) (quoting Magna Carta, translated in Edward Coke, The Second Part of the
Institutes of the Laws of England 45 (Brooke, 5th ed. 1797)). Article I, section 10 of the
Iowa Constitution also provides, “In all criminal prosecutions . . . the accused shall
have a right to a speedy . . . trial.” The United States Congress has passed speedy trial
statutes to provide further protection to the accused, 18 U.S.C. §§ 3161–3174, (2006)
and Iowa Rule of Criminal Procedure 2.33 provides a right to a trial within ninety days
of indictment.
                                          10

imposes a greater risk of liberty deprivation than readjudication after an

SVP is civilly committed. 5

       Since post-civil commitment readjudication does not create the

same threat to liberty deprivation as an initial civil commitment

prosecution, there is less reason to believe the legislature intended

section 229A.8(5)(e) to provide prophylactic due process protection

through discharge or dismissal. Instead, we find chapter 229A’s strict

guidelines for releasing adjudicated SVPs, and the legislature’s stated

purpose in enacting chapter 229A, confirm the legislature did not intend

for SVPs to be released when the court does not comply with section

229A.8(5)(e)’s sixty-day requirement.

       Chapter 229A “narrowly circumscribes release of detainees.”

Atwood, 725 N.W.2d at 645. Section 229A.5B states, “A person who is

detained pursuant to section 229A.5 or is subject to an order of civil

commitment under this chapter shall remain in custody unless released

by court order or discharged under section 229A.8 or 229A.10.” Sections

229A.8 and 229A.10 only authorize discharge after an evidentiary

hearing examining the SVP’s suitability for discharge.                   Iowa Code

§§ 229A.8, 229A.10. Chapter 229A does not contain any mechanism in

which an SVP can be discharged without a final evidentiary hearing on

the merits of the SVP’s mental abnormality.              We therefore think it is



       5We  are not suggesting adjudicated SVPs do not possess liberty due process
interests. We have repeatedly stated, and we reiterate, the State’s civil commitment of
an SVP infringes upon the SVP’s liberty interest, thereby entitling the SVP to due
process of the law. Swanson v. Civil Commitment Unit for Sex Offenders, 737 N.W.2d
300, 308 (Iowa 2007); In re M.T., 625 N.W.2d 702, 706 (Iowa 2001). For example,
substantial delay of an adjudicated SVP’s right to final hearing may run afoul of due
process. Those facts are not before us, and Johnson has not argued a due process
violation. We are simply observing that civil commitment prosecution raises a greater
risk of impermissible liberty deprivation than does post-civil commitment
readjudication.
                                        11

unlikely the legislature intended discharge to be the remedy to

accompany a violation of section 229A.8(5)(e)’s timeframe.

        We also find the Supreme Court of Wisconsin’s reasoning as to its

legislature’s intent, in an analogous case, to be persuasive. State ex rel.

Marberry v. Macht, 665 N.W.2d 155, 163 (Wis. 2003). The court held the

state’s    failure   to   conduct   a    timely,   post-commitment       initial

reexamination in violation of its sexually-violent-person civil commitment

statute did not entitle the respondent to discharge.         Id.   The court

reasoned
        Chapter 980 provides that a person committed may be
        released on supervision or discharged from commitment only
        after a court finds that he or she is no longer a sexually
        violent person and that it is no longer substantially probable
        that he or she will commit acts of sexual violence. Release
        absent this substantive determination by a court would
        compromise both of Chapter 980’s principal purposes—
        treatment and public protection—because, until a circuit
        court finds otherwise, the committed person remains in need
        of treatment and at high risk to reoffend.

Id. (citations omitted).    Similarly, the Iowa legislature explained its

purpose for enacting chapter 229A was to confine and rehabilitate
dangerous predators:

        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.

Iowa Code § 229A.1.           Releasing adjudicated SVPs without any

substantive determination on their propensity to reoffend thwarts the

legislature’s public safety and rehabilitative goals in enacting chapter

229A.      Construing a violation of section 229A.8(5)(e)’s timeliness

requirement to entitle Johnson to discharge would run counter to the

chapter’s framework and the legislature’s expressed purpose.
                                    12

      Section 229A.8(5)(e) does not entitle Johnson to discharge, but

Johnson is not without a remedy. Johnson’s remedy is the trial itself.

Chapter 229A is a civil commitment statute. Garren, 620 N.W.2d at 283–

86. Johnson has at his disposal all the remedies of a civil litigant. For

example, Iowa Code chapter 661 authorizes persons to bring a

mandamus action to compel an “inferior tribunal” to act pursuant to its

legal duty. Iowa Code § 661.1. The Iowa rules of civil procedure provide

additional appropriate remedies. Chapter 229A also infringes upon the

SVP’s liberty interest, thereby entitling the SVP to due process of the law.

Swanson v. Civil Commitment Unit for Sex Offenders, 737 N.W.2d 300,

307–10 (Iowa 2007).

      VI. Disposition.

      The plain and ordinary meaning of Iowa Code section 229A.8(5)(e)

requires the district court to make findings and to commence Johnson’s

final hearing within sixty days of the determination a final hearing is

necessary. Johnson is not entitled to discharge as this is not a remedy

the legislature provided for in the statute. Johnson was entitled to the

remedies afforded a civil litigant. Johnson’s final hearing was conducted

in February 2009.     A jury returned a verdict finding the State proved

beyond a reasonable doubt Johnson still suffered from a mental

abnormality that rendered him likely to reoffend.       The district court

entered judgment. We vacate the decision of the court of appeals and

affirm the district court’s judgment.

      DECISION OF COURT OF APPEALS VACATED AND JUDGMENT

OF DISTRICT COURT AFFIRMED.

      All justices concur except Mansfield, J., who takes no part.
