                    IN THE COURT OF APPEALS OF IOWA

                                    No. 12-1815
                                Filed April 30, 2014

IN RE THE DETENTION OF
GALEN KENDRICK SHAFFER,

GALEN KENDRICK SHAFFER,
     Respondent-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, District Judge.



       Galen Kendrick Shaffer challenges the district court’s denial of his request

for a final review hearing pursuant to Iowa Code Iowa Code section 229A.8.

WRIT SUSTAINED, CASE REMANDED FOR FURTHER PROCEEDINGS.



       Michael Adams, Local Public Defender, Thomas Gaul, Special Defense

Unit, and Michelle Grau, Legal Intern, for appellant.

       Thomas J. Miller, Attorney General, John McCormally, Assistant Attorney

General, for appellee.



       Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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MCDONALD, J.

         Galen Kendrick Shaffer challenges the district court’s denial of his request

for a final hearing pursuant to Iowa Code section 229A.8 to determine whether

he can be discharged from his commitment as a sexually violent predator or

placed in a transitional release program. Shaffer contends relevant and reliable

evidence at his annual review rebuts the presumption of continued commitment

such that a reasonable person would believe a final hearing should be held. We

agree.

                                          I.

         Certiorari actions are reviewed for correction of errors at law. See Taft v.

Iowa Dist. Ct., 828 N.W.2d 309, 312 (Iowa 2013). In reviewing certiorari actions,

we examine “only the jurisdiction of the district court and the legality of its

actions.” Id. (citation and quotation marks omitted). “Illegality exists when the

court’s factual findings lack substantial evidentiary support, or when the court has

not properly applied the law.” Id. (citation and quotation marks omitted).

                                          II.

         On March 17, 2010, Shaffer was civilly committed pursuant to Iowa Code

chapter 229A (2009) as a sexually violent predator. Under the statute, there is a

rebuttable presumption in favor of extending the civil commitment of a sexually

violent predator. See Iowa Code § 229A.8(1). However, “[r]ecognizing that civil

commitment proceedings must comport with the Due Process Clause, the

general assembly established a protocol for periodic reviews of the status of

each committed person.” Taft, 828 N.W.2d at 312. “The protocol includes an

annual examination of a committed person's mental abnormality. A report of the
                                         3


results of each annual examination must be submitted to the court that ordered

the committed person's commitment.” Id. at 312-13. The committed person can

rebut the presumption of continued commitment at the annual review stage and

seek discharge or placement in a transitional release program by establishing

facts sufficient to warrant a “final hearing” to determine whether the “committed

person no longer suffers from a mental abnormality which makes the person

likely to engage in predatory acts constituting sexually violent offenses if

discharged, or the committed person is suitable for placement in a transitional

release program.” Iowa Code § 229A.8(1).

       In 2012, in conjunction with his annual examination and the preparation of

his annual report, Shaffer petitioned for discharge or placement in a transitional

release program.     See Iowa Code § 229A.8(4) (2011).         At Shaffer’s annual

review, the court received reports from two experts: Dr. Tracy A. Thomas for the

State; and Dr. Richard Wollert for Shaffer. The district court briefly summarized

the content of the two reports, set forth the correct statutory standard, and

concluded as follows: “The Court having reviewed the annual report of the state

and the report by Dr. Wollert of the respondent, the Court finds the respondent

has failed to meet his said burden.” The court did not make any findings or set

forth any explanation for its conclusion that Shaffer failed to meet his burden.

       The legal standard for determining whether the facts are sufficient to

warrant a “final hearing” is set forth in chapter 229A. The relevant standard, as

explained in Taft, is as follows:

       [U]nder section 229A.8(5)(e)(1), a committed person is entitled to a
       final hearing if the court, upon consideration of all the evidence
       presented at the annual review, finds the committed person has
                                         4


       proved by a preponderance of the relevant and reliable evidence
       that a reasonable person would believe a hearing should be held to
       determine whether (a) 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 or
       (b) the committed person is suitable for placement in a transitional
       release program. This standard for determining whether a final
       hearing is required is satisfied if a reasonable person would find,
       from the relevant and reliable evidence presented at the annual
       review stage, that the committed person has more likely than not
       generated a fact question on either of the issues enumerated in
       section 229A.8(5)( e )(1)( a ) or ( b ).

Taft, 828 N.W.2d at 318.

       In applying the statutory standard, we note three things of import. First,

“although the rules of evidence are not controlling at the annual review stage, we

conclude the general assembly attached to the words ‘relevant and reliable’

meanings commonly assigned to them in our jurisprudence.” Id. at 319. Thus,

the district court, in reviewing the request for final hearing, has the authority to

evaluate the quality of the evidence offered on the issues and can eschew any

evidence that is not “relevant and reliable.”    Second, the grounds for a final

hearing are set forth in the disjunctive. That is, the committed person establishes

an entitlement to a final hearing by generating a fact question “on either of the

issues enumerated in section 229A.8(5)(e)(1)(a) or (b).” Id. at 318 (emphasis

added). Third, Taft indicates that the requisite showing is something less than

that required to survive a motion for summary judgment. That is, the committed

person is not required to generate a question of fact. Instead, the committed

person only has to show by a preponderance of the evidence that he or she

“more likely than not generated a fact question . . . .” Id. (emphasis added). With

these things in mind, we turn our attention to the question presented.
                                        5


      We first address whether Shaffer more likely than not generated a fact

question on the issue of whether he is suitable for placement in a transitional

release program pursuant to subparagraph (b). A committed person is suitable

for placement in a transitional release program only if the court finds that he or

she has satisfied all of the conditions set forth in Iowa Code section 229A.8A(2).

Further, the committed person must agree to the conditions of release and agree

to register as a sex offender. See Iowa Code § 229A.8A(3) and (4). Here, Dr.

Thomas’s report evaluated whether Shaffer met each of the conditions set forth

in section 229A.8A(2), concluding that Shaffer did not satisfy six of the nine

conditions for placement in a transitional release program. Shaffer’s expert’s

report did not at all address the conditions for placement pursuant to

subparagraph (b). Accordingly, Shaffer failed to generate a question of fact on

this issue. See Taft, 828 N.W.2d at 323 (holding no fact question created where

undisputed evidence showed SVP was not statutorily eligible for transitional

release).

      We next address whether Shaffer more likely than not generated a

question of fact on the issue of whether his mental abnormality has so changed

that he is not likely to engage in predatory acts constituting sexually violent

offenses if discharged pursuant to subparagraph (a). Dr. Thomas’s report noted

that Shaffer was previously found to suffer the mental abnormality of pedophilia.

The report found that Shaffer reported continued sexual attraction to children and

teenagers. Dr. Thomas could not opine whether the disorder was resolved or

otherwise manageable because Shaffer had been committed in a secured facility

and needed to be in a more independent living environment before that
                                         6


determination could be made.       Dr. Thomas further opined that dynamic risk

factors made it more likely than not that Shaffer would reoffend. In contrast, Dr.

Wollert concluded that the State’s actuarial risk models were inherently flawed or

misapplied to Shaffer. For example, Dr. Wollert’s report states that one of the

State’s actuarial risk models is so psychometrically flawed that it was withdrawn

from use by its developer.     Dr. Wollert further opined, based on a personal

interview and assessment of Shaffer and the application of a purportedly more

sound actuarial risk model, Shaffer no longer suffers from a mental abnormality

and is unlikely to engage in predatory acts constituting sexually violent offenses if

discharged.

       Chapter 229A does not require a “mini-trial” on the evidence presented at

the annual review on questions that ultimately will be decided at a final hearing, if

granted. See Taft, 828 N.W.2d at 317. The ultimate weight to be given to the

evidence is for the finder of fact at the final hearing. See id. at 321. All that is

required at the annual review stage is the committed person establish through

relevant and reliable evidence that there is more likely than not a question of fact

on one of the two statutory grounds for final hearing. With respect to expert

opinion evidence, the first step in the analysis is determine whether the expert’s

opinion meets “the threshold level of reliability for technical or specialized

knowledge.”    See id. at 320-21.      Taft provides that the threshold test for

“reliability” of an expert’s opinion “is generally assured by the district court’s

enforcement of rule 5.702 requiring experts be qualified ‘by knowledge, skill,

experience, training, or education.” Id. at 319. Dr. Wollert holds a Ph.D. in

clinical psychology. He is a tenured professor and licensed clinical psychologist.
                                         7


He has significant experience in the area, treating over 1000 sex offenders and

being retained in over 200 sexual predator cases. He has published thirteen

articles on the risk and diagnostic status of sex offenders. He conducts training

and other presentations on the topic of evaluating sex offenders, including

conducting a training for the State at the Civil Commitment Unit for Sexual

Offenders at the Cherokee Mental Health Institute where Shaffer is committed.

In short, his report is “reliable” within the meaning of the statute and Taft. See

Iowa Code § 229A.8(5)(e)(1); Taft, 828 N.W.2d at 320-21.

       Once the “threshold of reliability” is met, the “next inquiry under section

229A.8(5)(e) [is] whether the evidence raised a factual question regarding Taft’s

continuing dangerousness or his suitability for transitional release.” Taft, 828

N.W.2d at 321. “The appropriate inquiry” at this stage is not determining whether

the persuasive force of one opinion exceeds the other; rather it is determining

whether it is more likely than not a fact question was generated. See id. Here,

Dr. Wollert’s report gives an unequivocal opinion that Schaffer is no longer

“positive for suffering from a mental abnormality.” Dr. Wollert also opines that

Schaffer “is unlikely to engage in predatory acts constituting sexually violent

offenses if unconditionally discharged.”     The report also provides Dr. Wollert

holds those opinions to a reasonable degree of certainty. This opinion is in direct

contradiction to the State’s expert report on the material issue presented.

Schaffer has thus carried his burden of establishing it is more likely than not that

he generated a fact question on whether he is likely to commit acts constituting

sexually violent offenses. The district court erred in holding otherwise.
                                           8


                                          III.

       For the foregoing reasons, Shaffer’s petition for writ of certiorari is

sustained. The district exceeded its jurisdiction and otherwise acted illegally in

denying Shaffer’s request for final hearing.      This matter is remanded to the

district court for further proceedings.

       WRIT      SUSTAINED,          CASE        REMANDED     FOR      FURTHER

PROCEEDINGS.
                                           9


VOGEL, P.J. (concurring in part and dissenting in part)

       I concur that the writ should be sustained but respectfully dissent from the

majority’s application of the Taft test. I believe, that in applying the Taft test to

these facts, the majority has exceeded our limited role of appellate review of a

certiorari action. That role is circumscribed by our standard of review, which is

for correction of errors at law, not de novo. Matlock v. Weets, 531 N.W.2d 118,

121 (Iowa 1995). Therefore, we should not be applying the Taft test to these

facts but should remand to allow the district court to carry out its statutory

directive, a role within its exclusive purview.

       As the majority notes, the district court did not have the guidance of Taft

when it denied Shaffer a final hearing. When the district court does not have the

guidance of a particular test or applies the incorrect standard, “we remand for

new findings and application of the correct standard.” State v. Robinson, 506

N.W.2d 769, 770–71 (Iowa 1993). Even when a new test is articulated during the

pendency of an appeal, the correct remedy is to remand the case to the district

court so it may apply the proper test. See State v. Showens, ___ N.W.2d ___,

2014 WL 1400080, at *12-13 (Iowa 2014) (remanding the case where it was

unclear whether the district court applied the correct standard, the supreme court

outlined the proper standard in its current decision, and the supreme court noted

that “we are not the trier of fact”).

       As guidance, our supreme court recognized in Taft that the 2009

amendment to the statute “enhance[d] the level of scrutiny applied by the district

court in making the decision on a request for a final hearing. The court must now

consider all of the evidence presented and in deciding whether the committed
                                         10


person has met his burden, weigh only evidence that is reliable.” 828 N.W.2d at

318.   First the district court must determine what evidence is relevant.         Id.

Having referenced both experts’ opinions in its ruling, relevance does not appear

to be an issue in this case. Next, the district court must determine the reliability

of such evidence. Id. at 319. This was not done in this case, and it is not our

role to take on that task with our limited judicial review. Next, the district court

must “weigh only evidence that is reliable” to determine whether, as proved by a

preponderance of the evidence,

       a reasonable person would believe a hearing should be held to
       determine whether (a) 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 or
       (b) the committed person is suitable for placement in a transitional
       release program. This standard for determining whether a final
       hearing is required is satisfied if a reasonable person would find,
       from the relevant and reliable evidence presented at the annual
       review stage, that the committed person has more likely than not
       generated a fact question on either of the issues enumerated in
       section 229A.8(5)(e)(1)(a) or (b).

Id. at 318.1

       The district court engaged in no weighing of the reliable evidence.

Because the Taft test was not applied by the district court, I would decline to

apply the test and would simply remand the case so the district court may apply

the correct standard when deciding whether or not to grant Shaffer a final

hearing. See Garren v. Iowa Dist. Ct., No. 07-0714, 2008 WL 4822578, at *2

(Iowa Nov. 7, 2008) (sustaining the writ but remanding the case to the district




1
  I submit that evidence that may be in equipoise does not meet the statutory test of
producing a “preponderance” of the evidence.
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court to apply a new standard to determine whether a sexually violent predator

was entitled to a final hearing).
