                   IN THE SUPREME COURT OF IOWA
                               No. 14–0207

                            Filed May 27, 2016

                         Amended July 29, 2016


DAVID L. TAFT JR.,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR LINN COUNTY,

      Defendant.



      Certiorari to the Iowa District Court for Linn County, Ian K.

Thornhill, Judge.



      A person committed under the Sexually Violent Predator Act

alleges statutory criteria for suitability for placement in a transitional

release program violate the Due Process and Equal Protection Clauses of

the Iowa and the United States Constitutions. AFFIRMED.



      Philip B. Mears of Mears Law Office, Iowa City, for plaintiff.



      Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, and John B. McCormally, Assistant Attorney General, for

defendant.
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CADY, Chief Justice.

      In this case, we consider the constitutionality of statutory

conditions on the suitability of a civilly committed sexually violent

predator for the transitional release program.      As part of an annual

review, the district court denied a final hearing for discharge or

suitability for placement in a transitional release program to David Taft

based in part on his failure to fulfill statutory criteria for a finding of

suitability for a transitional release program. Taft challenges two of the

criteria as violating his due process rights and denying him equal

protection under the Iowa and United States Constitutions. We conclude

the issues are not ripe for consideration under the posture of this case.

On our review, we affirm the order of the district court.

      I.   Background Facts and Proceedings.

      Taft was convicted in 1987 for lascivious acts with a minor. He

received one two-year and two five-year sentences. The sentences were

ordered to be served concurrently. Taft was discharged in 1991. He was

arrested for reoffending one week later with two more children. He was

convicted and served a sentence of incarceration until discharged on

January 10, 2005. On March 30, 2005, district court proceedings were

initiated to commit Taft as a sexually violent predator under the

Commitment of Sexually Violent Predators Act, Iowa Code chapter 229A

(2005).    The jury found Taft suffered from a mental abnormality that

made it more likely than not that he would reoffend. Taft was committed

to the Civil Commitment Unit for Sexual Offenders (CCUSO).

      CCUSO provides a mandatory treatment program for committed

persons. The program is focused on the treatment and rehabilitation of

repeat sexual offenders.      It has five phases, beginning with an

introductory first phase and ending with Phase V transitional release.
                                     3

Phase V prepares committed persons for reentry into society. Progress

through the program is measured by evaluating ten treatment areas as

well as the committed person’s attitude, behavior, and personal risk

factors.     The treatment areas evaluated include the realization,

acquisition, and demonstration of skills relating to the following:

disclosure; insight; personal victimization; empathy; health, hygiene, and

leisure skills; cognitive coping strategies; sexual behaviors; relapse

prevention; intimacy; and problem solving.

      Committed persons are entitled to an annual review to determine

whether the person’s circumstances have sufficiently changed to warrant

a final hearing for the court to determine if the committed person should

be discharged or is suitable for placement in a transitional release

program.     Iowa Code § 229A.8(5)(e) (2013).    Discharge or release is

conditioned on a change in the mental abnormality making the

committed person not likely to engage in sexually violent offenses, while

suitability for placement in transitional release is based on the statutory

criteria laid out in Iowa Code section 229A.8A. Id. Each annual review

starts with “a rebuttable presumption . . . that the commitment should

continue.”   Id. § 229A.8(1).   The court considers evidence provided by

both sides, but the committed person bears the burden “to prove by a

preponderance of the evidence that there is relevant and reliable evidence

to rebut the presumption” and thereby generate a jury question on the

need for continued commitment. Id. § 229A.8(5)(e)(1).

      In 2013, Taft petitioned this court for certiorari based on the

outcome of his 2011 annual review, which denied him a final hearing.

Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 312 (Iowa 2013). We examined

the effect of a 2009 amendment to Iowa Code section 229A.8(5)(e)

specifying the legal standard of evidence—by a preponderance that
                                     4

relevant and reliable evidence exists—a committed person must offer at

an annual review hearing to establish entitlement to a requested final

hearing before the court or a jury.        Id. at 317–18.     We held the

amendment expanded the evidence considered by the court to include

evidence from both sides and directed the court to only weigh reliable

evidence rather than all admissible evidence. Id. at 318. In other words,

the court is to determine whether the committed person generates a fact

question on either a change in their mental abnormality or their

suitability for transitional release placement. Id. Taft additionally raised

a claim that the transitional release program criterion in section

229A.8A(2)(e) requiring the offender be issued no major discipline reports

for six months imposed an unconstitutional precondition on release

unrelated to his dangerousness or mental abnormality, but we held the

claim had not been properly raised or decided at the trial court level and

dismissed the constitutional challenge as not preserved. Id. at 322–23.

      On August 2, 2013, the district court held a hearing for Taft’s first

annual review following our decision.     During the hearing, Taft raised

and argued his constitutional challenge to the statute along with his

petition for discharge or placement in the transitional release program.

In particular, Taft challenged paragraphs (d) and (e) of Iowa Code section

229A.8A(2),   which    require   a   treatment-provider-accepted    relapse

prevention plan and a six-month period with no major disciplinary

reports, as unconstitutional. The parties argued before the court at the

annual review hearing on the issue and submitted written briefs.

      In order for committed persons to be suitable for placement in the

transitional release program, the person must meet nine requirements

set forth by the legislature. Iowa Code § 229A.8A(2).
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       A committed person is suitable for placement in the
       transitional release program if the court finds that all of the
       following apply:
             a. The committed person’s mental abnormality is no
       longer such that the person is a high risk to reoffend.
             b. The committed person has achieved and
       demonstrated significant insights into the person’s sex
       offending cycle.
             c. The committed person has accepted responsibility
       for past behavior and understands the impact sexually
       violent crimes have upon a victim.
             d. A detailed relapse prevention plan has been
       developed and accepted by the treatment provider which is
       appropriate for the committed person’s mental abnormality
       and sex offending history.
           e. No major discipline reports have been issued for the
       committed person for a period of six months.
            f. The committed person is not likely to escape or
       attempt to escape custody pursuant to section 229A.5B.
             g. The committed person is not likely to engage in
       predatory acts constituting sexually violent offenses while in
       the program.
           h. The placement is in the best interest of the
       committed person.
              i. The committed person has demonstrated a
       willingness to agree to and abide by all rules of the program.

Id.   A different subsection adds a tenth condition requiring committed

persons to agree to register as a sex offender to be eligible for placement

in the transitional release program. Id. § 229A.8A(4).

       The court examined two annual reports from 2012 and 2013

regarding     Taft’s   progress    through     treatment     and    making

recommendations on whether Taft should be considered for discharge or

would be eligible for a transitional release program.      The first report,

offered by the State, was written by CCUSO psychologist Dr. Tracy

Thomas based on Taft’s treatment records, documents from Taft’s 2005

commitment proceeding, and personal interviews with Taft and CCUSO

staff. Treatment records, dated February 19, 2013, showed Taft had not
                                          6

progressed from Phase II of the treatment program during his eight years

in the program and detailed Taft’s struggles with multiple treatment

areas.         The   annual   report   concluded     Taft   continued      to   show

characteristic signs of antisocial personality disorder, continued to

engage in behaviors that were part of his past offense cycle, and was

“more likely than not to reoffend.” The report recommended Taft not be

discharged from CCUSO. The report also concluded Taft did not meet

seven of the ten statutory criteria requirements for placement in

transitional release.

         Taft submitted an independent progress review report prepared by

clinical psychologist Dr. Craig Rypma. Dr. Rypma’s report indicated that

Taft’s pedophilia diagnosis was based on past behavior without current

indicators.      He concurred in the diagnosis of antisocial personality

disorder but did not believe the condition necessarily affected the ability

of a person to control their sexual behavior. 1 Dr. Rypma indicated Taft

met nine out of the ten requirements for the transitional release program

and that the requirement he did not meet, regarding major discipline

reports, did not relate to sexual violence and was not relevant to Taft’s

transfer to the transitional release program. Dr. Rypma concluded Taft
was ready for discharge. He found it was “reasonable to assume” Taft’s

risk to reoffend had fallen below the more-likely-than-not threshold

because he was now forty-three-years old and his last sexual crime had

occurred over twenty years earlier.             If not discharged, Dr. Rypma




         1Wenote that we have determined that antisocial personality disorder may be a
sufficient mental abnormality on its own to support civil commitment if it affects the
individual person’s likelihood to commit a sexually violent offense, a determination
made in an individualized inquiry. In re Det. of Barnes, 689 N.W.2d 455, 459–60 (Iowa
2004).
                                        7

recommended “with a reasonable degree of professional certainty” that

Taft should move to transitional release.

      In response to Taft’s request for discharge, the court found that

while some improvement had occurred since the prior review’s reports,

more work remained to be done.          The court found Taft had failed to

present evidence showing progress in several important areas of his

mental abnormalities and therefore had not rebutted the presumption of

continued confinement. The court noted that even Taft’s expert appeared

to equivocate on whether he should be discharged or moved to the

transitional release program and did not clearly address Taft’s antisocial

personality disorder.     The court found inconsistencies between the

descriptions in Dr. Rypma’s report of Taft’s treatment records and the

actual treatment records. The court further noted a heavy reliance on

statistical studies of recidivism rather than Taft’s actual treatment.

      In this petition, Taft does not challenge the ruling against a final

review hearing for discharge or the reliability determination made by the

district court concerning Dr. Rypma’s report.        The district court ruled

Taft’s challenge to the constitutionality of two of the criteria in section

229A.8A(2) was not ripe for adjudication because he failed to meet

several other criteria for a final hearing on transitional release and

determined the totality of the evidence showed Taft still at risk to

reoffend.

      Taft   petitioned   for   certiorari   based   on   the   district   court’s

application of the Taft evidentiary burden and the constitutionality of two

criteria in paragraphs (d) and (e) of Iowa Code section 229A.8A(2). We

granted certiorari review on this case on May 22, 2014. After certiorari

was granted, the district court held an annual review hearing for Taft’s

2014 annual report.       The court granted Taft a final hearing on the
                                      8

questions of discharge and transitional relief, and a jury trial followed.

Taft withdrew his challenge in this case based on the court’s application

of Taft after he was granted a final review hearing from his 2014 annual

review. However, he continued to pursue his constitutional claim from

the 2013 review based on the transitional release program statutory

criteria, asserting the criteria could impede his right to liberty in the

future. This is the claim now before us.

      II. Scope of Review.

      “We review certiorari actions for correction of errors at law.” Taft,

828 N.W.2d at 312. We examine the court’s jurisdiction and the legality

of its actions, including the proper application of law and evidentiary

support for factual findings.   Id.   “We review constitutional challenges

de novo.”     In re Det. of Matlock, 860 N.W.2d 898, 901 (Iowa 2015).

Statutes are presumed constitutional, and “[t]he challenger bears a

heavy burden, because it must prove the unconstitutionality beyond a

reasonable doubt.”     State v. Hernandez-Lopez, 639 N.W.2d 226, 233

(Iowa 2002). The challenging party “must negate every reasonable basis

upon which the court could hold the statute constitutional.”        State v.

Quinn, 691 N.W.2d 403, 407 (Iowa 2005) (quoting State v. Biddle, 652

N.W.2d 191, 200 (Iowa 2002)).

      III. Ripeness.

      “[J]usticiability doctrines define the judicial role; they determine

when it is appropriate for the . . . courts to review a matter and when it is

necessary to defer to the other branches of government.”              Erwin

Chemerinsky, Constitutional Law: Principles and Policies 49 (4th ed.

2011).      “The constitutional requirement of ripeness is basically a

manifestation of the rule that courts should not address hypothetical

questions.”     3 Chester James Antieau & William J. Rich, Modern
                                    9

Constitutional Law § 48.30, at 610 (2d ed. 1997).     “A case is ripe for

adjudication when it presents an actual, present controversy, as opposed

to one that is merely hypothetical or speculative.” State v. Wade, 757

N.W.2d 618, 627 (Iowa 2008) (quoting State v. Iowa Dist. Ct., 616 N.W.2d

575, 578 (Iowa 2000)). We seek to avoid issuing advisory opinions on

possible future injuries, though we may find our present-controversy

requirement “satisfied by a ‘direct threat of personal detriment.’ ” State

v. Sluyter, 763 N.W.2d 575, 579–80, 579 n.4 (Iowa 2009) (quoting Doe v.

Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745, 35 L. Ed. 2d 201, 210

(1973)).

      Taft challenges the constitutionality of two statutory criteria used

to determine suitability for the transitional release program under Iowa

Code section 229A.8A.     He argues these criteria pose unconstitutional

impediments to his due process right to be free from confinement. In

considering this claim, we first observe that the statutory criteria only

limit who the court can find suitable for placement in a transitional

release program. Therefore, the statute does not necessarily guarantee

placement in the program even if the criteria for suitability are met. See

Iowa Code § 229A.8A(2).

      Instead, the CCUSO treatment program rules limit placement in

transitional release to those persons in Phase V of the treatment

program, with the suitability determination by the court as one of several

criteria to be met before the committed person qualifies for the

advancement to Phase V.      Taft’s current placement in Phase II of the

program is based on his evaluations and the professional judgment of

those treating him within the CCUSO program, and he has not

challenged that placement.    We have previously found that failure to

progress through the treatment program due to behavioral reports is “an
                                          10

integral part of the treatment under a cognitive-behavioral model,” not an

adverse    action    violating    due    process    rights.    Swanson v. Civil

Commitment Unit for Sex Offenders, 737 N.W.2d 300, 307, 309–10 (Iowa

2007). It is conceivable there could be a statutory right to placement in a

transitional release program upon the court finding all criteria have been

met without a move to Phase V within the program, but that case is not

before us now. We decline to make any such determination absent facts

supporting a claim to the right.

      Even assuming arguendo we determined the challenged criteria

violate   Taft’s    substantive    due    process    liberty   interests,   such   a

determination would not have any effect on the district court’s

determination at the annual review.            The district court denied Taft’s

request for a final hearing based on equivocation about his suitability for

release, questions on the reliability of Dr. Rypma’s report, and the

findings by the CCUSO expert that Taft needed to demonstrate

significant improvement in several treatment areas and had not met his

burden to show he was a suitable candidate for transitional release or

discharge.

      At argument, Taft agreed he would not qualify under the statute

for the transitional release program even if he were not required to meet

the challenged criteria. Resolution in his favor would not result in any

change in the court’s evaluation of the reliability of Dr. Rypma’s report or

make any change in Taft’s circumstances after this annual review and,

thus, would resolve no controversy. Accordingly, we decline to address

his substantive due process and equal protection challenges to the

statutory criteria regarding major discipline reports and treatment

provider approval of his relapse prevention plan as not ripe. We decline
                                     11

to evaluate the constitutionality of the criteria until a live controversy is

before us.

      IV. Conclusion.

      We conclude that on this record, the issue of whether the statutory

criteria for suitability for placement in a transitional release program

found in paragraphs (d) and (e) of Iowa Code section 229A.8A(2) are

unconstitutional under the Due Process and Equal Protection Clauses of

the United States and Iowa Constitutions is not ripe for adjudication.

      AFFIRMED.
