                IN THE SUPREME COURT OF IOWA
                             No. 125 / 05-0485

                         Filed December 29, 2006

WAYNE ATWOOD, ARTHUR JENNINGS,
DANIEL BELLMAN, and JOHN CARMODY,
on behalf of themselves and all present
and future Iowa Code Chapter 229A pretrial
detainees, and LOREN G. HUSS, JR., JOHN
HENRY NACHTIGALL, TIMOTHY GUSMAN
and LANNY TAUTE, on behalf of themselves
and those similarly situated,

      Plaintiffs,

vs.

THE HONORABLE THOMAS J. VILSACK, et al.,

      Defendants.


      Certified questions of law from the United States District Court for the

Southern District of Iowa, Robert W. Pratt, Judge.



      Pre-trial detainees awaiting trial on sexually violent predator petitions

brought a class action in the United States District Court for the Southern

District of Iowa against the Iowa Department of Corrections and others.

The federal court certified a legal question to this court.      CERTIFIED

QUESTION ANSWERED.



      Randall C. Wilson of the Iowa Civil Liberties Union Foundation, Des

Moines, and Jon M. Kinnamon of Kinnamon, Kinnamon, Russo, Meyer &

Keegan, Cedar Rapids, for plaintiffs.



      Thomas J. Miller, Attorney General, Gordon E. Allen, Deputy Attorney

General, and Mark Hunacek, Assistant Attorney General, for defendants.
                                      2

HECHT, Justice.

      The United States District Court for the Southern District of Iowa has

certified to us the following question: Are pre-trial detainees being held

pursuant to Iowa Code chapter 229A (2005) entitled to bail under either the

common law or the Iowa Constitution?

      I.     Background Facts and Proceedings.

      The petitioners are a certified class consisting of “ ‘[a]ll present and

future pretrial detainees held by the Iowa Department of Corrections,

awaiting hearing on their Iowa Code [c]hapter 229A petition, or who were

committed pursuant to Iowa Code [c]hapter 229A.’ ” Atwood v. Vilsack, 338

F. Supp. 2d 985, 990 (S.D. Iowa 2004). They filed suit in the United States

District Court for the Southern District of Iowa against the State of Iowa’s

departments and officials responsible for implementing the pre-trial

detention provisions of Iowa Code chapter 229A, the Sexually Violent

Predator (SVP) Act. Id. at 990-91. The petitioners claimed: (1) the State’s

failure to initiate SVP proceedings until immediately prior to the discharge

of criminal sentences violated their federal right to a speedy trial and right

to be free from imposition of double jeopardy, (2) pre-trial detention was in

contravention of chapter 229A, (3) pre-trial detention violated their federal

and state due process rights to bail, (4) pre-trial detention violated their

rights under the Americans with Disabilities Act (ADA), and (5) the

conditions of their detention violated their federal due process rights. Id. at

993-1008. The court certified the question of state law to us. Id. at 1008.

      Petitioners urge us to hold the common law entitles detainees to bail

during the pre-trial stage of proceedings brought under chapter 229A. They

also assert numerous provisions of the Iowa Constitution entitle them to

bail during that stage: article 1, section 12 (bail guarantee clause); article
                                               3

1, section 17 (proscribing excessive bail); article 1, section 9 (due process of

law); article 1, section 10 (rights of persons accused); article 1, section 21

(banning bills of attainder); article 1, section 8 (protecting personal

security); article 1, section 1 (inalienable rights clause); and article 1,

section 25 (unenumerated rights clause). For the reasons that follow, we

conclude persons detained before trial pursuant to Iowa Code chapter 229A

are not entitled to bail under either the common law or under these

provisions of the Iowa Constitution.

       II.      Discussion.

       A.       Common Law Bail Claim.

       We have previously acknowledged that although not expressly

declared by our statutes or constitution to be part of Iowa law, “the common

law has always been . . . in force in Iowa.” Iowa Civil Liberties Union v.

Critelli, 244 N.W.2d 564, 568 (Iowa 1976). The petitioners claim a common

law right to bail in the interim between the Iowa district court’s finding of

probable cause to believe they are sexually violent predators 1 and the

subsequent trials to determine whether they are, in fact, sexually violent

predators. They cite Blackstone for the proposition that at common law all

defendants in civil cases were bailable.                   See William Blackstone, 4

Commentaries 294 (1769). Because we are not persuaded, however, that

the common law authorized civil commitment of sexually violent predators

for long-term care and treatment, any reference in Blackstone’s



       1 Iowa  Code section 229A.5(1) requires the district court, upon the filing of a petition
alleging a person is a SVP, to make a preliminary determination of whether the State has
shown probable cause to believe the person is a SVP. If the court preliminarily finds
probable cause to believe the person is a SVP, the person shall be taken into custody. Id.
The detainee is thereafter entitled to a probable cause hearing. Iowa Code § 229A.5(2). If
the court finds probable cause to believe the detainee is a SVP, the detainee is entitled to a
trial to determine whether the detainee is, in fact, a SVP. See id. § 229A.7(2).
                                           4

Commentaries to the availability of bail in all civil cases does not suggest a

right to bail in the type of case now before us.

       Furthermore, any common law claim of entitlement to pre-trial bail in

a civil case of this type could not have survived our legislature’s enactment

of chapter 229A. The common law may be repealed by implication in a

statute that plainly expresses the legislature’s intent to do so. Critelli, 244

N.W.2d at 568; Wilson v. Iowa City, 165 N.W.2d 813, 822 (Iowa 1969). Our

consideration of whether the legislature intended to prohibit bail at the pre-

trial stage in SVP cases begins with the words of the statute.

       The subject of bail is expressly addressed in only one section of the

statute. Section 229A.5C(1) provides that persons who commit a public

offense while detained pursuant to section 229A.5 or while subject to an

order of civil commitment shall not be eligible for bail pursuant to section

811.1. 2 The petitioners urge us to interpret section 229A.5C(1) as an

expression of the legislature’s intent that detainees who have not committed

a subsequent offense while detained or committed should be entitled to bail.

We must reject the petitioners’ suggested interpretation of the statute,

however, because we conclude section 229A.5C(1) has no application to this

case. That section is intended to preclude access to bail in the criminal case

filed as a consequence of a new offense committed by a person detained or

subject to a civil commitment order. The petitioners in this case claim

entitlement to bail in their civil SVP proceedings. See In re Bradford, 712

N.W.2d 144, 146-47 (Iowa 2006) (holding that the proceedings under the

SVP Act are civil); In re Det. of Garren, 620 N.W.2d 275, 283-86 (Iowa 2000)

(same).


       2 Section 811.1 provides that “[a]ll defendants are bailable both before and after
conviction, by sufficient surety, or subject to release upon condition or on their own
recognizance,” except for defendants in certain criminal cases.
                                            5

         Although chapter 229A does not expressly prohibit bail at the pre-

trial stage in SVP cases, neither does it expressly authorize bail in such

cases.       Nonetheless, we discern from the way in which chapter 229A

narrowly circumscribes release of detainees the legislature’s clear intention

to deny bail at the pre-trial stage in SVP proceedings. The only instance in

which the release of a detainee is authorized before commitment to a secure

facility is when, after a hearing, the district court does not find probable

cause to believe the detainee is a SVP. 3 In that event, the detainee is not
held over for trial and has no need for bail.

         The only other detainees who may be released in SVP cases are those

who qualify for discharge pursuant to section 229A.5B(1), which in turn

authorizes the discharge of detainees under sections 229A.8 or 229A.10.

See Iowa Code § 229A.5B(1). Section 229A.5B(1) provides:

         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. A person who
         has been placed in a transitional release program or who is
         under release with or without supervision is considered to be in
         custody.

(Emphasis added.) Petitioners suggest that this section signals an intent

that bail is available to detainees at the pre-trial stage.               We disagree.

Discharge under sections 229A.8 or 229A.10 may be achieved only after a

trial has occurred, the detainee has been found beyond a reasonable doubt

to be a SVP, and commitment to the department of human services for

control, care and treatment has been ordered.




         See Iowa Code § 229A.5(5) (requiring transfer of the detainee to an appropriate
         3

secure facility for an evaluation only “[i]f the court determines that probable cause does
exist”). Although the statute does not expressly direct discharge of the detainee in the
event probable cause is not established, this is clearly implied.
                                           6

      Once committed, “a rebuttable presumption exists that the

commitment should continue.” Id. § 229A.8(1). Discharge of a detainee

committed to a secure facility may be ordered under section 229A.8 if the

detainee’s condition is subsequently shown to be suitable for discharge. 4

Similarly, a detainee committed to a secure facility may be discharged

pursuant to section 229A.10 if it is shown that the person no longer suffers

from a mental abnormality making it likely that the person will engage in

predatory acts constituting sexually violent offenses. 5 Discharge under
sections 229A.8 or 229A.10 is a remedy available to a detainee only after (1)

commitment has been ordered, and (2) the detainee’s mental condition has

improved so that transfer to a transitional program, release with or without

conditions, or discharge is appropriate. In summary, it is clear that the

petitioners have no access to bail under chapter 229A because (1) the

district court found probable cause to believe they are sexually violent

predators, and (2) the remedies of release and discharge are not available at

the pre-trial stage in the interim between a finding of probable cause and

trial of the claim that petitioners are SVPs.

      Yet another feature of chapter 229A compels us to conclude the

legislature intended to preclude bail at the pre-trial stage.                   Section

229A.7(7) provides in relevant part: “Upon a mistrial, the court shall direct

      4  After commitment to a secure facility, a person may petition the court for
placement in a transitional release program. See Iowa Code §§ 229A.8(4), 229A.8A.
Release may be ordered with or without supervision. Id. § 229A.9A(1).

      5   Section 229A.7(5) provides:

      If [at trial] the court or jury determines that the respondent is a sexually
      violent predator, the respondent shall be committed to the custody of the
      director of the department of human services for control, care, and
      treatment until such time as the person’s mental abnormality has so
      changed that the person is safe to be placed in a transitional release
      program or discharged.
                                               7

that the respondent be held at an appropriate secure facility until another

trial is conducted.” This provision unmistakably discloses by implication

the legislature’s intent that detention shall continue after the district court

has made a finding of probable cause until the question of whether the

detainee is in fact a SVP has been adjudicated. Accordingly, we conclude

the legislature clearly intended chapter 229A to preclude bail for detainees

at the pre-trial stage. Consequently, any claim to bail based upon common

law that antedated the adoption of chapter 229A is without merit.

        Finally, our conclusion that the legislature intended to deny bail to

detainees at the pre-trial stage of SVP cases is strongly influenced by the

legislative findings set out in section 229A.1. The statute was adopted “to

protect the public, to respect the needs of the victims of sexually violent

offenses, and to encourage full, meaningful participation of sexually violent

predators in treatment programs.” Id. Admitting an individual to bail

before trial when there is probable cause to believe he or she is a sexually

violent predator would not further the legislature’s purposes. See Martin v.

Reinstein, 987 P.2d 779, 795 (Ariz. 1999) (noting that Arizona’s SVP statute

does not require access to bail because of legislators’ concerns about public

safety); Commonwealth v. Knapp, 804 N.E.2d 885, 890 (Mass. 2004)

(interpreting the Massachusetts SVP statute to require confinement without

bail after a finding of probable cause, in part because of the legislative

purpose of protecting the public).

        B.      Entitlement to Bail Under the Iowa Constitution.

        i.      Iowa Constitution Article 1, Section 9 (Due Process). 6


        6 “The right of trial by jury shall remain inviolate; but the General Assembly may
authorize trial by a jury of a less number than twelve men in inferior courts; but no person
shall be deprived of life, liberty, or property, without due process of law.” Iowa Const. art. I,
§ 9.
                                      8

      The certifying court in this case has concluded the denial of bail at

the pre-trial stage did not violate the petitioners’ substantive due process

rights under the federal constitution. Atwood, 338 F. Supp. 2d at 998. We

are asked to decide the separate question whether petitioners are entitled to

bail under the Due Process Clause in the Iowa Constitution. See Iowa

Const. art. I, § 9 (stating “no person shall be deprived of life, liberty, or

property, without due process of law”).        “This court has traditionally

considered the federal and state due process provisions to be equal in

scope, import, and purpose.” In re Det. of Garren, 620 N.W.2d at 284 (citing
In re Interest of C.P., 569 N.W.2d 810, 812 (Iowa 1997); Exira Cmty. Sch.

Dist. v. State, 512 N.W.2d 787, 792 (Iowa 1994)). Although “[w]e have an

interest in harmonizing our constitutional decisions with those of the

Supreme Court when reasonably possible, . . . we recognize and will

jealously guard our right and duty to differ in appropriate cases.” State v.

Olsen, 293 N.W.2d 216, 219-20 (Iowa 1980).

      Substantive due process principles preclude the government “from

engaging in conduct that ‘shocks the conscience,’ or interferes with rights

‘implicit in the concept of ordered liberty.’ ” United States v. Salerno, 481

U.S. 739, 746, 107 S. Ct. 2095, 2101, 95 L. Ed. 2d 697, 708 (1987)

(citations omitted).   To assess the petitioners’ substantive due process

claim, we first define the nature of the involved right. In re Det. of Cubbage,

671 N.W.2d 442, 446 (Iowa 2003). “[F]reedom from physical restraint ‘has

always been at the core of the liberty protected by the Due Process Clause

from arbitrary governmental action.’ ” Kansas v. Hendricks, 521 U.S. 346,

356, 117 S. Ct. 2072, 2079, 138 L. Ed. 2d 501, 511-12 (1997) (quoting

Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 1785, 118 L. Ed. 2d

437, 448 (1992)). Although the liberty interest of an individual to be free
                                             9

from physical restraint has been described as “a paradigmatic fundamental

right,” Knapp, 804 N.E.2d at 891, the Supreme Court has noted that the

interest is not absolute. Hendricks, 521 U.S. at 356, 117 S. Ct. at 2079,

138 L. Ed. 2d at 512. States, including Iowa, 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.” Id. at 357, 117 S. Ct. at 2079, 138 L. Ed. 2d at

512. Involuntary civil commitment statutes have withstood due process

challenges if they authorize detention pursuant to proper procedures and

evidentiary standards. Id. at 357, 117 S. Ct. at 2080, 138 L. Ed. 2d at 512.

       Petitioners do not advance here the broad notion that they have a due

process right not to be involuntarily detained prior to the adjudication of

their status under chapter 229A. They instead make the narrower claim

that once detained, they have a due process right to bail at the pre-trial

stage under the Iowa Constitution. The question whether the claimed right

is fundamental is one of first impression for this court. In In re Detention of

Garren, 620 N.W.2d 275 (Iowa 2000), we did not decide whether a detainee’s

liberty interest is fundamental because we concluded chapter 229A passed

muster even when judged under a strict scrutiny standard. Id. at 286.7 We
also rejected Garren’s claim that substantive due process required

placement of SVPs in the “least restrictive placement.” Id. at 285 (noting

that “even if such a right did exist, it is not a ‘fundamental right’ ” (citation

omitted)).




       7  Unlike the petitioners, Garren presented an equal protection challenge. In an
earlier SVP case, we applied a rational basis analysis to an equal protection claim because
the appellant failed to preserve a claim that the reasonableness of the classification should
be subjected to strict scrutiny. In re Det. of Morrow, 616 N.W.2d 544, 548 n.1 (Iowa 2000).
                                      10

      As in Garren, we conclude it is unnecessary for us to resolve the

question whether the petitioners’ claimed interest is fundamental. Even

under strict scrutiny analysis, chapter 229A comports with substantive due

process standards. The state’s interest in detaining persons during the

interim between the district court’s finding of probable cause and the trial of

the SVP claim is compelling. It is an interest in protecting the public from

“a small but extremely dangerous group” of persons who are highly likely to

engage in “repeat acts of predatory sexual violence” if not detained. See

Iowa Code § 229A.1; In re Det. of Williams, 628 N.W.2d 447, 458 (Iowa 2001)

(finding a compelling state interest in “protecting society from a person

prone to sexually assaulting children”); In re Det. of Garren, 620 N.W.2d at

286 (finding the confinement of sexually violent predators in a secure

facility served the compelling State interest in “protection of the public”).

      The restriction of liberty resulting from the denial of bail at the pre-

trial stage in these cases is narrowly tailored.       See City of Panora v.

Simmons, 445 N.W.2d 363, 367 (Iowa 1989) (noting that a statute will

survive strict scrutiny analysis only if it is narrowly drawn to serve a

compelling state interest). Pre-trial detention without access to bail is

limited to a specific category of dangerous persons who have been convicted

of or charged with a sexually violent offense and who suffer from a mental

abnormality that makes them likely to engage in predatory acts constituting

sexually violent offenses, if not confined in a secure facility. See Iowa Code

§ 229A.2(11).

      The significant procedural protections afforded detainees during the

pre-trial stage in SVP cases strongly influence our determination that the

statute is narrowly tailored. A person may not be detained under chapter

229A until after (1) the attorney general files a petition alleging that the
                                              11

person is a SVP and stating sufficient facts to support such an allegation

(section 229A.4(1)), and (2) a district court has made a preliminary

determination that the person named in the petition is a SVP (section

229A.5(1)). Once detained, the person is entitled to a hearing in the district

court within seventy-two hours8 to determine whether probable cause exists

to believe the detained person is a SVP.                 See id. § 229A.5(2).          At the

probable cause hearing, the detainee has the right to appear in person with

counsel, challenge the preliminary finding of probable cause by presenting

evidence, cross-examine the state’s witnesses, and access all petitions and

reports in the possession of the court. See id. § 229A.5(2)(a)-(g). If, after

the hearing, the district court finds probable cause to believe the detainee is

a SVP, the detainee is entitled to a timely trial to determine whether he is,

in fact, a SVP. 9

       Our decision today is consistent with a series of prior decisions

upholding chapter 229A against substantive due process claims under the

Iowa Constitution. We have repeatedly held that civil commitment of a SVP

does not violate substantive due process. In re Det. of Darling, 712 N.W.2d

98, 101 (Iowa 2006) (holding that civil commitment of a person with an

untreatable condition was consistent with substantive due process under

the Iowa Constitution); In re Det. of Betsworth, 711 N.W.2d 280, 289 (Iowa

2006) (same); In re Det. of Hodges, 689 N.W.2d 467, 470 (Iowa 2004)


        8 The hearing may be waived by the detainee or 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, . . . if the [detained person] is not substantially prejudiced.” Iowa
Code § 229A.5(2).

       9 The trial shall be held within ninety days after “either the entry of an order waiving
the probable cause hearing or completion of the probable cause hearing,” unless the trial is
“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 . . . when the [detainee] will not be
substantially prejudiced.” See Iowa Code § 229A.7(3).
                                                    12

(holding that civil commitment on the basis of an antisocial personality

disorder was consistent with substantive due process under the Iowa

Constitution); In re Det. of Cubbage, 671 N.W.2d at 445-48 (finding no

fundamental right to be competent during SVP statute proceedings and,

thus, that commitment of incompetent people is consistent with substantive

due process under the Iowa Constitution).

           ii.        Iowa Constitution Article I, Section 12 (Bail Guarantee). 10
           Iowa’s bail guarantee clause only applies to criminal cases. See Allen

v. Wild, 249 Iowa 255, 259, 86 N.W.2d 839, 842 (1957) (finding that the bail

guarantee clause does not guarantee bail in civil extradition proceedings

because the clause only has “reference to persons charged with offenses

against the laws of the State of Iowa”); Orr v. Jackson, 149 Iowa 641, 643-

44, 128 N.W. 958, 960 (1910) (holding that the bail guarantee clause is not

applicable in a habeas corpus proceeding because such proceedings are

civil); cf. Martin v. Reinstein, 987 P.2d 779, 788 (Ariz. 1999) (finding that the

Arizona Constitution’s bail guarantee only applies in the “criminal context”).

Because petitioners are pre-trial detainees in civil commitment proceedings,

not criminal proceedings, the bail guarantee clause does not entitle them to

bail. 11

           iii.       Iowa Constitution Article I, Section 17 (Excessive Bail). 12

           Due to the similarity between the Federal and Iowa Excessive Bail

Clauses, the Iowa Supreme Court “ ‘look[s] to the interpretations by the

United States Supreme Court for guidance in interpreting [Iowa’s] clause.’ ”

           10 “All
              persons shall, before conviction, be bailable, by sufficient sureties, except for
capital offences where the proof is evident, or the presumption great.” Iowa Const. art. I,
§ 12.
           11 Proceedings
                       under chapter 229A are civil. See In re Bradford, 712 N.W.2d at 146-
47; In re Det. of Garren, 620 N.W.2d at 283-86.
           12    “Excessive bail shall not be required . . . .” Iowa Const. art. I, § 17.
                                              13

State v. Briggs, 666 N.W.2d 573, 584 (Iowa 2003) (citing State v. Izzolena,

609 N.W.2d 541, 547 (Iowa 2000)). The Federal Constitution’s Excessive

Bail Clause only prohibits excessive bail in cases “where it is proper to grant

bail”; it does not impliedly create a right to bail. Carlson v. Landon, 342

U.S. 524, 545, 72 S. Ct. 525, 537, 96 L. Ed. 547, 563 (1952). Because

petitioners offer no reason for us to interpret the Iowa Constitution’s

Excessive Bail Clause differently, we conclude that it does not create a right

to bail, but instead only ensures that properly granted bail is not excessive.

Accordingly, petitioners’ claim that the Iowa Excessive Bail Clause entitles

them to bail must fail.

      iv.       Iowa Constitution Article I, Section 8 (Personal Security). 13

      Iowa law is unclear regarding whether article I, section 8 applies in a

civil context, such as commitment proceedings under chapter 229A. The

Iowa Supreme Court generally interprets article I, section 8 of the Iowa

Constitution to track federal interpretations of the Fourth Amendment. See

State v. Jones, 666 N.W.2d 142, 144 (Iowa 2003).                The United States

Supreme Court has applied the Fourth Amendment in both civil and

criminal contexts. See United States v. James Daniel Good Real Prop., 510

U.S. 43, 49, 114 S. Ct. 492, 499, 126 L. Ed. 2d 490, 500 (1993) (noting that

the Fourth Amendment “place[s] restrictions on seizures conducted for

purposes of civil forfeiture”); United States v. Verdugo-Urquidez, 494 U.S.

259, 264, 110 S. Ct. 1056, 1060, 108 L. Ed. 2d 222, 232 (1990) (observing

that the “Fourth Amendment . . . prohibits ‘unreasonable searches and
      13   Iowa Constitution article I, section 8, states:
      The right of the people to be secure in their persons, houses, papers and
      effects, against unreasonable seizures and searches shall not be violated;
      and no warrant shall issue but on probable cause, supported by oath or
      affirmation, particularly describing the place to be searched, and the
      persons and things to be seized.
                                               14

seizures’ whether or not the evidence is sought to be used in a criminal

trial”).

       We recognize that we may interpret the Iowa Constitution differently,

but the parties suggest no reason for us to do so. We accordingly hold that

article I, section 8 applies in a civil context. Petitioners thus fall within the

ambit of protection afforded by the personal security guarantee of article I,

section 8.

       We now turn to whether the seizure 14 of petitioners was “reasonable”
under article I, section 8. To determine whether governmental action is

“reasonable” under this constitutional provision, the Iowa Supreme Court

balances an individual’s interests with the State’s interests.                      State v.

Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). We find that the State’s pre-

trial seizure of petitioners is reasonable because the State’s weighty interest

in protecting the public from an “extremely dangerous” class of people

outweighs an individual’s interest in being free on bail for ninety days

between a probable cause hearing and trial. See Iowa Code § 229A.1.

       v.        Iowa Constitution Article I, Section 10 (Rights of the Accused). 15

       Article I, section 10 does not entitle petitioners to bail because this

provision only applies to criminal proceedings. It protects only the rights of



       14  Pre-trial detention is undisputedly a “seizure.” It constitutes a “show of
authority” that restrains the individual. See State v. Reindeers, 690 N.W.2d 78, 82 (Iowa
2004) (“ ‘A seizure occurs when an officer by means of physical force or show of authority in
some way restrains the liberty of a citizen.’ ” (quoting State v. Pickett, 573 N.W.2d 245, 247
(Iowa 1997))).
       15   Iowa Constitution article I, section 10, states:
       In all criminal prosecutions, and in cases involving the life, or liberty of an
       individual the accused shall have a right to a speedy and public trial by an
       impartial jury; to be informed of the accusation against him, to have a copy
       of the same when demanded; to be confronted with the witnesses against
       him; to have compulsory process for his witnesses; and, to have the
       assistance of counsel.
                                         15

an “accused,” not the rights of an individual facing potential civil

commitment pursuant to Iowa’s SVP statute.

       In addition, even if this were a criminal proceeding, petitioners could

not rely on article I, section 10. This provision does not include among its

express protections a right to bail.

       vi.    Iowa Constitution Article I, Section 21 (Bills of Attainder). 16

       A bill of attainder “is a legislative determination that metes out

punishment to a particular individual or a designated group of persons

without a judicial trial.” State v. Phillips, 610 N.W.2d 840, 843 (Iowa 2000).

Three elements comprise a bill of attainder: a specific legislative target,

imposition of punishment, and absence of a judicial trial. Id.

       The determinative element in this case is imposition of punishment.

To assess whether a law imposes punishment, we look to the intentions of

the legislature. See State v. Swartz, 601 N.W.2d 348, 351 (Iowa 1999)

(noting that if a law is “designed to accomplish some other legitimate

governmental purpose [besides imposition of punishment] it should stand”);

Doe v. Poritz, 662 A.2d 367, 396 (N.J. 1995) (“What counts . . . is the

purpose and design of the statutory provision, its remedial goal and

purposes, and not the resulting consequential impact, the ‘sting of

punishment,’ that may inevitably, but incidentally, flow from it.”).              By

enacting Iowa’s SVP statute, the legislature did not intend to punish

sexually violent predators. Rather, the stated purposes of the statute are to

protect society and facilitate treatment of sexually violent predators. Iowa

Code § 229A.1. Therefore, the SVP statute is not a bill of attainder that

impermissibly denies petitioners the right to bail.


       16 “No bill of attainder, ex post facto law, or law impairing the obligation of
contracts, shall ever be passed.” Iowa Const. art. I, § 21.
                                           16

        vii.   Iowa Constitution Article I, Section 25 (Unenumerated Rights) 17

and Article I, Section 1 (Inalienable Rights). 18

        Petitioners’ claims that Iowa Constitution article I, section 25, the

unenumerated rights clause, and Iowa Constitution article I, section 1, the

inalienable rights clause, entitle them to bail fail for essentially the same

reason. Both the inalienable rights clause and the unenumerated rights

clause secure to the people of Iowa common law rights that pre-existed

Iowa’s Constitution. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 176

(Iowa 2004) (citing May’s Drug Stores v. State Tax Comm’n, 242 Iowa 319,

329, 45 N.W.2d 245, 250 (1950)) (“We have held [the inalienable rights

clause] was intended to secure citizens’ pre-existing common law rights

(sometimes known as ‘natural rights’) from unwarranted government

restrictions.”); State ex rel. Burlington & Mo. River R.R. v. County of Wapello,

13 Iowa 388, 412 (1862) (concluding that the purpose of the unenumerated

rights clause is to “bring . . . unenumerated rights retained by the people,

founded equally . . . upon natural justice and common reason . . . within

the censorship of courts of justice . . . when . . . [the rights are] assailed”).

To resolve this case, however, we need not determine whether a common

law right to bail in civil commitment proceedings pre-existed the

Constitution, as the petitioners urge us to do. Even if the right to bail in

civil   commitment        proceedings       pre-existed     the    Constitution       and

consequently falls within the ambit of the protections afforded by the

unenumerated rights and inalienable rights clauses, the SVP statute is

reasonable and, thus, constitutional.
       17 “This enumeration of rights shall not be construed to impair or deny others,

retained by the people.” Iowa Const. art. I, § 25.
         Iowa Constitution article I, section 1, states, “All men are, by nature, free and
        18

equal, and have certain inalienable rights—among which are those of enjoying and
defending life and liberty, acquiring, possessing and protecting property, and pursuing and
                                      17

       It is well-established that the protections of Iowa’s inalienable rights

clause are not absolute. See Gacke, 684 N.W.2d at 176. The clause does

not prevent all legislative action taken pursuant to the police power that

benefits the community and impacts an inalienable right (i.e. a common law

or natural right). See id. Instead, it prevents only arbitrary, unreasonable

legislative action that impacts an inalienable right. See id. (citing Gibb v.

Hansen, 286 N.W.2d 180, 186 (Iowa 1979); May’s Drug Stores, 242 Iowa at

329, 45 N.W.2d at 250; Benschoter v. Hakes, 232 Iowa 1354, 1361, 8

N.W.2d 481, 485 (1943); State v. Osborne, 171 Iowa 678, 693, 154 N.W.

294, 300 (1915)).

       We find that the unenumerated rights clause similarly prohibits not

all legislative action, but instead only unreasonable action. The petitioners

root their argument that the unenumerated rights clause entitles them to

bail in the assumption that unenumerated rights are absolute and may not

be the subject of legislative action, even if reasonable. This interpretation of

the unenumerated rights clause would effectively disallow all legislative

action as to all unenumerated rights.         Such an interpretation of the

unenumerated rights clause would substantially limit the power of the

legislature to enact laws, such as the SVP statute, that protect the public.

       Moreover, we have previously recognized that the unenumerated

rights clause limits, not eliminates, the State’s power to legislatively impact

unenumerated rights. In State ex rel. Burlington & Mo. River R.R. v. County

of Wapello, we noted the theoretical inconsistency between two prevalent

legal doctrines: “the doctrine that the Constitution allows the legislature

the use of every power which it does not positively prohibit,” and the

doctrine that the Constitution reserves to the people all rights “secured


obtaining safety and happiness.”
                                      18

under our plan of government.” 13 Iowa at 413. An inconsistency arises in

that a legislature with “full and uncontrolled sway” to act in all ways not

specifically prohibited in the Constitution would inevitably infringe upon

rights reserved to the people. Id. In Wapello, we concluded that while the

legislature may take actions to benefit the community, the Iowa

Constitution’s reservation of unenumerated rights to the people limits “an

abuse” of legislative power. Id. at 412-15.

      Having concluded that the legislature may take reasonable action that

impacts rights protected by the inalienable rights and unenumerated rights

clause, we turn to whether the SVP statute is reasonable. Because of the

State’s interests in rehabilitating sexually violent predators and protecting

the public, we find that pre-trial detention under the SVP statute is a

reasonable, and thus constitutional, exercise of legislative power.

      III.   Conclusion.

      We conclude that pre-trial detainees being held pursuant to Iowa

Code chapter 229A are not entitled to bail under either the common law or

the Iowa Constitution. The clerk of the supreme court is directed to send a

copy of this opinion under the seal of the court to the certifying court and

the parties. Iowa Code § 684A.7. The clerk shall also prepare and transmit

a bill of costs to the clerk of the certifying court. Iowa R. App. P. 6.459. The

clerk of the certifying court shall be responsible for apportioning and

collecting costs. Id.

      CERTIFIED QUESTION ANSWERED.

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