                     IN THE COURT OF APPEALS OF IOWA

                                    No. 18-1305
                               Filed August 21, 2019


IN THE MATTER OF J.S.,
Alleged to be Seriously Mentally Impaired,

J.S.,
     Respondent-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,

Judge.



        J.S. appeals two involuntary civil commitment orders.         AFFIRMED IN

PART, REVERSED IN PART, AND REMANDED.




        Tyler Phelan of Borseth Law Office, Altoona, for appellant.

        Thomas J. Miller, Attorney General, and Gretchen Kraemer, Assistant

Attorney General, for appellee State.



        Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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VAITHESWARAN, Presiding Judge.

       In this consolidated appeal of two involuntary civil commitment orders, J.S.

contends the district court erred in (1) failing to terminate the proceedings and

dismiss the applications on receipt of a physician’s report and (2) prohibiting him

from possessing firearms.

I.     Background Facts and Proceedings

       An individual filed an application alleging J.S. had a serious mental

impairment pursuant to Iowa Code section 229.6 (2018).               According to the

application, J.S. threatened “he would kill an ex-girlfriend, her children, [and]

family, [and] also would kill [the applicant and her] family if [she] turned him in.”

The applicant characterized J.S. as “delusional, in a state of psychosis.” The

supporting affidavit stated J.S. had post-traumatic stress disorder based on

“multiple blows to the head throughout his 11 years serving in the army.” The

affidavit further stated J.S. used substances “to try to cope” and was “prone to

much anger and rage when substances [were] involved.”

       On the same day, another application was filed alleging J.S. to be a person

with a substance-related disorder pursuant to Iowa Code section 125.75. The

affiant attested that when J.S. used certain substances, he “worked himself up into

such anger and rage that he threaten[ed] lethal harm to those he [was] upset with.”

       Physicians’ reports in both cases found J.S. “capable of making responsible

decisions with respect to his . . . hospitalization or treatment.”

       A hearing on the applications was held on June 29, 2018, two days before

a change in the law governing commitments under chapters 125 and 229.

Following the hearing, a magistrate acknowledged the physician’s testimony that
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J.S. possessed judgmental capacity but concluded based on the totality of the

record that J.S. had a serious mental impairment and a substance-related disorder.

The magistrate committed J.S. to inpatient treatment for his serious mental

impairment and ordered outpatient treatment for his substance-related disorder.

The magistrate also ordered J.S. not to “ship, possess, receive, transport, or cause

the transport of any firearms or ammunition.” See 18 U.S.C. 922(g)(4). The order

was filed on June 29, 2018.

       On July 6, 2018, pursuant to a periodic review, a second magistrate

discharged and terminated the involuntary proceedings based on the physicians’

reports that J.S. possessed judgmental capacity. The magistrate retained the

firearms prohibition.

       J.S. appealed the orders.     Following a de novo trial, the district court

dismissed the chapter 229 application based on the physician’s opinion that J.S.

had sufficient judgment to make responsible decisions with respect to his

hospitalization or treatment. The court retained the firearms prohibition. With

respect to the chapter 125 application, the court found J.S. to be a person with a

substance-related disorder and ordered outpatient treatment. Again, the court

retained the firearms prohibition. J.S. appealed.

II.    Failure to Dismiss Applications

       J.S. argues the magistrate who initially considered the applications “erred

in failing to terminate the proceedings and dismiss the application[s] upon receiving

the physician’s report filed prior to the initial commitment hearing.” The State

responds that “[n]o transcript of the initial hearing before the magistrate was
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ordered or prepared so it is unknown whether this issue was promptly raised.”

Accordingly, the State asserts, “Error was not preserved.”

        Iowa Rule of Appellate Procedure 6.803(1) states:

        Within seven days after filing the notice of appeal, the appellant must
        use the combined certificate to order in writing from the court reporter
        a transcript of such parts of the proceedings not already on file as
        the appellant deems necessary for inclusion in the record. If the
        appellant intends to urge on appeal that a finding or conclusion is
        unsupported by the evidence or is contrary to the evidence, the
        appellant must include in the record a transcript of all evidence
        relevant to such finding or conclusion.

J.S. did not order the transcript of the initial commitment hearing within seven days

after filing his notice of appeal or at any time thereafter. Approximately ten months

after his appeal was logged, he asked the clerk of the district court to transmit the

entire record, “including the physical media (audio recording from initial

commitment hearing on June 29, 2019).” J.S.’s request for the record came too

late.

        “Without the benefit of a full record of the lower courts’ proceedings, it is

improvident for us to exercise appellate review.” In re F.W.S., 698 N.W.2d 134,

135–36 (Iowa 2005); see also Mumm v. Jennie Edmundson Mem’l Hosp., 924

N.W.2d 512, 520 (Iowa 2019) (“It is the appellant’s duty to provide a record on

appeal affirmatively disclosing the alleged error relied upon.” (quoting F.W.S., 698

N.W.2d at 135)); In re C.T., No. 18-0320, 2018 WL 6706242, at *1 (Iowa Ct. App.

Dec. 19, 2018) (finding F.W.S. controlling). We conclude J.S. failed to preserve

error on his assertion that the first magistrate was obligated to dismiss the

proceedings.
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       J.S. alternatively asks us to review the issue under an ineffective-

assistance-of-counsel rubric. We assume without deciding that an ineffective-

assistance-of-counsel claim is available in these types of proceedings, where a

respondent possesses a statutory right to counsel. See Iowa Code §§ 125.76,

125.78(1), 229.8(1), 814.10 (requiring appointment of counsel in specified

proceedings); In re C.C., No. 17-0884, 2018 WL 2084851, at *4 n.1 (Iowa Ct. App.

May 2, 2018); In re J.H., No. 12-1133, 2013 WL 1760183, at *3 (Iowa Ct. App. Apr.

24, 2013). We also assume without deciding that the Strickland standard1 for

evaluating ineffective-assistance-of-counsel claims applies in this context. See

C.C., 2018 WL 2084851, at *4. Despite the absence of an evidentiary record, we

conclude the claim may be resolved based on the law at the time the first

magistrate ordered hospitalization.

       Before July 1, 2018, Iowa Code section 229.10(3) stated: “If the report of

one or more of the court-designated physicians or mental health professionals is

to the effect that the individual is not seriously mentally impaired, the court may

without taking further action terminate the proceeding and dismiss the application

on its own motion and without notice.” (Emphasis added.) Similarly, Iowa Code

section 125.80(3) stated: “If the report of a court-designated licensed physician or

mental health professional is to the effect that the respondent is not a person with

a substance-related disorder, the court, without taking further action, may

terminate the proceeding and dismiss the application on its own motion and without




1
 That standard requires a respondent to prove a breach of an essential duty and resulting
prejudice. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
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notice.” (Emphasis added.) Effective July 1, 2018, the legislature amended the

provisions to change “may” to “shall.” See 2018 Iowa Acts, ch. 1056, §§ 1, 8.

       Ordinarily, the term “may” confers discretion. See State ex rel. Wright v.

Iowa State Bd. of Health, 10 N.W.2d 561, 563 (Iowa 1943). Although there are

exceptions, we believe the legislature’s use of “may” in the cited sentences was

intended to leave termination of the proceedings to the discretion of the magistrate.

Our conclusion rests on a reading of the entirety of sections 229.10 and 125.80.

Both use “shall” to denote a mandatory function and “may” to denote an optional

function. For example, the provisions state a physician’s examination “shall be

conducted” and also state the physician “may consult with or request the

participation in the examination of any consulting mental health professional.”

Iowa Code §§ 229.10(1)(a)–(b), 125.80(1)(a)–(b). Because termination of the

proceedings was discretionary before July 1, 2018, J.S.’s attorney had no duty to

move for dismissal of the June 29, 2018 hearing or order. Accordingly, J.S.’s

ineffective-assistance-of-counsel claim fails.

III.   Firearms Prohibition

       J.S. next contends the district court erred in including the firearms

prohibition. The State counters that the issue was not preserved for review. We

disagree. During the de novo trial before the district court, the court questioned

the physician about J.S.’s access to firearms. Additionally, J.S. testified he turned

his guns over to his brother before the incident. Finally, the assistant county

attorney questioned J.S. about the prohibition. Although J.S. did not specifically

request removal of the firearms prohibition, we believe all concerned were aware

of the issue and the issue was before the court. See UE Local 893/IUP v. State,
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928 N.W.2d 51, 60 (Iowa 2019) (stating “the record must at least reveal the court

was aware of the claim or issue and litigated it” (quoting Meier v. Senecaut, 641

N.W.2d 532, 540 (Iowa 2002)). We conclude error was preserved.

       The State alternatively argues the issue is moot because the proceedings

were dismissed. Again, we disagree. In In re B.B., 826 N.W.2d 425, 432 (Iowa

2013), the supreme court rejected a mootness challenge to the appeal of a

dismissed involuntary commitment proceeding.         The court reasoned that the

proceeding carried with it a presumption of collateral consequences. Id. The same

rationale applies here. We conclude the issue of the firearms prohibition is not

moot and we proceed to the merits.

       18 U.S.C. section 922(g)(4) states:

              It shall be unlawful for any person . . . who has been
       adjudicated as a mental defective or who has been committed to a
       mental institution . . . to ship or transport in interstate or foreign
       commerce, or possess in or affecting commerce, any firearm or
       ammunition; or to receive any firearm or ammunition which has been
       shipped or transported in interstate or foreign commerce.

The provision also lists eight other predicates for imposing the prohibition, none of

which apply to the facts of this case.

       As noted, the district court dismissed the chapter 229 application alleging

J.S. was seriously mentally impaired. Having dismissed the application, the court

could not rely on a serious mental impairment to support the firearms prohibition.

       We turn to the court’s inclusion of the same prohibition in the chapter 125

outpatient-treatment order. The court based the prohibition on findings that J.S.

was “mentally ill” and “dangerous.” As noted, the “mentally ill” finding fell by the

wayside with the dismissal of the chapter 229 application.           The finding of
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“dangerousness” did have grounding in chapter 125, which requires the applicant

to attest to a belief that the person presents “a danger to self or others.” Iowa Code

§ 125.75(2)(a); In re D.K., No. 14-1403, 2015 WL 3624391, at *2 (Iowa Ct. App.

June 10, 2015) (observing the legislature added a dangerousness component to

the statute). But there must also be grounding in the federal statute, and none of

the nine federal predicates for imposition of the firearms prohibition are premised

on a substance-related disorder. See 18 U.S.C. 922(g)(1)-(9).           Because the

firearms prohibition contained in the chapter 125 outpatient order finds no support

in federal law, we reverse the prohibition clause of the order.

IV.    Disposition

       We affirm the district court’s dismissal of the chapter 229 proceeding and

the district court’s order referring J.S. to outpatient treatment for his chapter 125

substance-related disorder.     We reverse the district court’s imposition of the

firearms prohibition in both orders and remand for entry of an order striking those

prohibitions.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
