                 IN THE SUPREME COURT OF IOWA
                              No. 13–0505

                          Filed April 18, 2014


IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP
OF STUART KENNEDY (INVOLUNTARY)

STUART KENNEDY,

      Appellant,

vs.

MARIA KENNEDY,

      Appellee.




      Appeal from the Iowa District Court for Polk County, Peter A.

Keller, Judge.



      A ward appeals from probate court orders refusing to terminate his

guardianship and establishing a conservatorship. AFFIRMED.



      William L. Bushell of Bushell Law Firm, Des Moines, for appellant.



      John H. Judisch of Stuyvesant & Benton, Carlisle, for appellee.



      Rita Bettis and Randall C. Wilson, Des Moines, for amicus curiae

ACLU of Iowa, and Cynthia A. Miller, Des Moines, for amicus curiae

Disability Rights Iowa.
                                    2

MANSFIELD, Justice.

      This case presents the question whether a mother who serves as

her intellectually disabled adult son’s guardian must obtain court

approval before arranging a vasectomy for him. We conclude the relevant

statute requires court approval. However, we do not disturb the orders

entered by the probate court that declined to terminate the mother’s

guardianship and also appointed her conservator.

      I. Factual and Procedural Background.

      Stuart Kennedy is a twenty-one-year-old man with significant

intellectual disabilities who lives in a group home. The home is staffed

around the clock. The staff help Stuart with various daily tasks, such as

time management, finances, and transportation.         Stuart has made

progress at the group home and, for example, is able to prepare simple

meals for himself. Stuart receives SSI benefits as well as $700 to $800 a

month from a job at Sam’s Club.

      In late 2009, after Stuart turned eighteen, his mother Maria

Kennedy was appointed as his guardian. The guardianship continued.

In late 2012 or early 2013, Maria became concerned that Stuart was

involved in a relationship with Annamarie Jalali, a coworker at Sam’s

Club. Stuart admits he told his mother that he and Jalali were having

sex, although at the subsequent court hearing, both Stuart and Jalali

denied they were anything more than friends.        Stuart also provided

money to Jalali to cover certain of her expenses. In addition, Jalali took

Stuart to a credit union to open a bank account.

      In January 2013, Stuart filed a handwritten petition to terminate

the guardianship, alleging among other things that his mother was “too

control[l]ing of my life and my money.” Maria in turn filed a petition for

appointment of an involuntary conservator for Stuart and a petition for
                                      3

an injunction against Jalali, seeking a court order that she not have

further contact with Stuart.

      Before these matters could be heard, on February 18, 2013, Maria

took Stuart to a doctor’s office to get a vasectomy. Maria contends that

Stuart was in favor of the procedure and that it had been discussed and

agreed to. Stuart, however, disputed that he had wanted the vasectomy.

On February 21, 2013, Stuart’s attorney filed a further petition to

terminate or modify the guardianship reciting that “the Guardian forced

the Ward to undergo forced sterilization.”

      A combined hearing on the petitions was held on February 27,

2013. Maria, Stuart, and Jalali all appeared through counsel and each

of them testified.    The court also received letters from Stuart’s regular

physician (not the individual who performed the vasectomy) and from

Stuart’s case manager. One subject of the hearing was whether Maria

had violated Iowa Code section 633.635(2)(b) by arranging for Stuart’s

vasectomy without court approval.         Iowa Code § 633.635(2)(b) (2013).

Evidence was also presented at the hearing that when law enforcement

recently went to Jalali’s home to look for Stuart, Jalali had refused to

answer her door or inform them of Stuart’s whereabouts. Additionally,

Jalali and Stuart had discussed Stuart renting out her basement in

exchange for Stuart paying half the rent.

      At the conclusion of the hearing, the probate court declined to

terminate Stuart’s guardianship. It reasoned that Stuart continued to be

in need of a guardian and that Maria was a qualified and suitable person

to continue to serve as his guardian. The court further found that Maria

had not violated section 633.635(2)(b) because the vasectomy was not

“major   elective    surgery.”    Even    if   Maria   had   violated   section

633.635(2)(b), the court added,
                                     4
      [Maria] did not make such arrangement or provide
      assistance out of malice or some other evil intent or purpose,
      but did so as a result of her desire to care for her son and do
      what is in his best interest and as such, this Court would
      still find that Stuart remains in need of a Guardian and
      Maria Kennedy should not be removed as Guardian for
      Stuart Kennedy.

The court also ordered Maria’s appointment as Stuart’s conservator.
Finally, the court entered an injunction against Jalali having contact

with Stuart until March 2014, finding she had

      taken advantage of Stuart Kennedy as a result of his
      significant intellectual disabilities and inability to make,
      communicate, or carry out important decisions concerning
      his own financial affairs and has done so to her pecuniary
      gain and to the financial detriment of Stuart.

      Stuart appealed the orders appointing his mother as conservator

and refusing to terminate the guardianship.        He did not appeal the

injunction   against   Jalali.   Throughout    this   appeal,   Stuart    has

maintained the probate court erred in finding the vasectomy was not

major elective surgery or a nonemergency major medical procedure

requiring prior court approval.     However, at oral argument Stuart’s

attorney indicated that Stuart was no longer seeking to alter the

guardianship or the conservatorship. At this point, he simply wants a

ruling that prior court approval should be required for the sterilization of

a male ward.

      II. Standard of Review.

      Actions to terminate guardianships are equitable in nature, and

thus our review is de novo. Iowa Code § 633.33; In re Guardianship of

B.J.P., 613 N.W.2d 670, 672 (Iowa 2000). We give weight to the factual

findings of the probate court, but we are not bound by them.             In re

Guardianship of Stewart, 369 N.W.2d 820, 822 (Iowa 1985). Actions to

appoint conservators, however, are tried at law.      Iowa Code § 633.33.
                                          5

Therefore, the review is for errors at law.             In re Conservatorship of

Deremiah, 477 N.W.2d 691, 692 (Iowa Ct. App. 1991).

       III. Legal Analysis.

       A. Motion to Dismiss Appeal. As a threshold matter, we must

address Maria’s motion to dismiss Stuart’s appeal. Maria points out that

the probate court appointed Stuart’s counsel “to represent the interests

of the proposed ward throughout the conservatorship proceedings and

until such time as an Order Appointing Conservator is filed.” Thus, she

contends Stuart’s counsel no longer has authority to represent him, such

authority having terminated on March 4, when the court entered the

order appointing her as conservator.           She then maintains we should

dismiss the appeal because the attorney of record lacks authority to

pursue it.

       We decline to dismiss the appeal.           Maria does not dispute that

Stuart is entitled to representation in the conservatorship proceeding,

including any appeal from the order appointing her as conservator. See

Iowa Code § 633.575(1)(a). 1 She does not argue that Stuart should be

represented on appeal by somebody else. She also does not dispute that

Stuart’s counsel filed and served a timely notice of appeal, is actually
pursuing the appeal, and has otherwise complied with our procedural

requirements. Her only argument is that Stuart’s counsel should have

obtained     an    order   from    the   probate     court    renewing     counsel’s

appointment for purposes of appeal.




       1Although  Stuart’s counsel was not specifically appointed to represent him in
the termination of guardianship proceeding, the proceedings were heard together, and
the court and the parties have treated the appointment as extending to the termination
of guardianship proceeding.
                                         6

       We think this argument confuses two things—counsel’s ability to

represent Stuart and his ability to get paid for doing so. The expiration

of the appointment order could affect compensation, since the attorney

would no longer be “court appointed.” See id. § 633.575(6) (stating that

“if the ward is indigent the cost of the court appointed attorney shall be

assessed against the county in which the proceedings are pending”

(emphasis added)). 2 Yet, in our view, it does not impair the attorney’s

ability to keep representing Stuart if Stuart wants the attorney to stay on

and no other counsel has been appointed. See Iowa Ct. Rule 6.109(4)

(“The attorneys and guardians ad litem of record in the district court

shall be deemed the attorneys and guardians ad litem in the appellate

court unless others are retained or appointed and notice is given to the

parties and the clerk of the supreme court.”).

       Further, even if we found a violation, this is not a situation where

we would lack jurisdiction or authority over the case. Thus, we would

typically grant dismissal “only if the alleged infractions are repeated or

significant and have resulted in prejudice to another party or the

administration of justice.”       Iowa Ct. R. 6.1006(1)(a); see Hanson v.

Harveys Casino Hotel, 652 N.W.2d 841, 843 (Iowa Ct. App. 2002)
(dismissing an appeal because of substantial violations of the appellate

rules). We do not find such circumstances here. Accordingly, we deny

the mother’s motion to dismiss the appeal based on the alleged lack of

authority of Stuart’s attorney to pursue it.

       B. Mootness.      The next question we must entertain is whether

this appeal is moot. The vasectomy has already occurred, and Stuart no


       2This assumes that the original order does not cover appellate proceedings, a
point we do not decide.
                                      7

longer asks that Maria be removed as a guardian (or that the

conservatorship    be   overturned)       because   she   arranged   for   an

unauthorized vasectomy.      He does, however, continue to challenge the

legality of the vasectomy.

            An appeal is moot if it no longer presents a justiciable
      controversy because [the contested issue] has become
      academic or nonexistent. The test is whether the court’s
      opinion would be of force or effect in the underlying
      controversy. As a general rule, we will dismiss an appeal
      when judgment, if rendered, will have no practical legal effect
      upon the existing controversy.

In re M.T., 625 N.W.2d 702, 704 (Iowa 2001) (citations and internal

quotation marks omitted).     “We do not decide cases when there is no

longer any actual controversy, unless we exercise our discretion and

decide the case under an exception to the mootness doctrine.” In re S.P.,

719 N.W.2d 535, 537 (Iowa 2006).

      An exception to the general rule exists “ ‘where matters of public

importance are presented and the problem is likely to recur.’ ” In re M.T.,

625 N.W.2d at 704 (quoting Iowa Freedom of Info. Council v. Wifvat, 328

N.W.2d 920, 922 (Iowa 1983)); see also In re B.B., 826 N.W.2d 425, 428–

29 (Iowa 2013); Reilly v. Iowa Dist. Ct., 783 N.W.2d 490, 493 n.1 (Iowa

2010); In re S.P., 719 N.W.2d at 537. An important factor thereunder is

“whether the challenged action is such that often the matter will be moot

before it can reach an appellate court.” In re M.T., 625 N.W.2d at 704–05

(citations and internal quotation marks omitted).         We have applied a

four-part test that considers the following:

      (1) the private or public nature of the issue; (2) the
      desirability of an authoritative adjudication to guide public
      officials in their future conduct; (3) the likelihood of the
      recurrence of the issue; and (4) the likelihood the issue will
      recur yet evade appellate review.
                                        8

State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002); accord State

v. Kramer, 760 N.W.2d 190, 195 (Iowa 2009); In re A.W., 741 N.W.2d

793, 804 (Iowa 2007); In re S.P., 719 N.W.2d at 537; In re T.S., 705

N.W.2d 498, 502 (Iowa 2005).

      Both parties urge that we retain the appeal to decide whether a

guardian must obtain advance court approval before arranging for the

sterilization of a male ward.     They contend this issue is of public

importance and likely to recur. We agree with them.

      As we discuss below, sterilization of a ward is an important subject

with constitutional overtones.     True, it is possible for the question

whether sterilization may occur without prior court approval to come

before an appellate court in a nonmoot case. However, either of the two

potential scenarios in which this might occur would be less than ideal.

In one scenario there would be prolonged uncertainty whether or not a

medical procedure will occur while an appeal winds its way through our

courts. In the other scenario (as was originally the case here) a ward

would be seeking to impose some collateral consequence on the guardian

after the procedure had already occurred. We therefore find the public

importance exception applies and turn to the meaning of Iowa Code

section 633.635(2).

      C. Construction of Iowa Code Section 633.635(2).              Stuart

argues on appeal that court approval should have been required for his

vasectomy. Stuart urges, contrary to the probate court’s ruling, that it is

a “major elective surgery” or a “nonemergency medical procedure.” The

relevant statute provides as follows:

           2. A guardian may be granted the following powers
      which may only be exercised upon court approval:

            ....
                                     9
            b. Arranging the provision of major elective surgery or
      any other nonemergency major medical procedure. For the
      purposes of this paragraph, “major elective surgery” and
      “nonemergency major medical procedure” do not include the
      provision to the ward of professional care, counseling,
      treatment, or services limited to the provision of routine
      physical and dental examinations and procedures under
      anesthesia, if the use of anesthesia is necessitated by the
      physical or mental disability of the ward, and if the
      anesthesia is provided within the scope of the health care
      practitioner’s scope of practice.

            ....

            3. For the purposes of this section:

            a. “Routine dental examinations and procedures”
      includes preventive services, diagnostic services, restorative
      services, periodontal services, endodontic services, oral
      surgery, prosthetic services, and orthodontic procedures.

            b. “Routine physical examinations and procedures”
      includes examinations and procedures performed for the
      purpose of general treatment or diagnosis or for the purpose
      of treatment or diagnosis related to a specific illness,
      symptom, complaint, or injury.

Iowa Code § 633.635(2)–(3).

      The legislature’s delineation of the guardian’s role in a ward’s care,

including medical treatment, has evolved and become more detailed over

the past thirty years.      Prior to 1984, no language about medical

procedures was contained in the Code. See Iowa Code § 633.635 (1983).

The law simply said that “[u]nless otherwise directed by a court order,” a

guardian “shall have custody of a minor ward and general supervisory

responsibility for the care of a ward who has attained the age of

majority.” Id.

      In 1984, the legislature removed that language and added two

sections, one outlining powers and duties a guardian could exercise

without   prior   court   approval—including   ensuring    the   receipt   of

emergency medical services, “professional care, counseling, treatment,

and services as needed”—and another outlining those which could be
                                    10

exercised only with court approval—“major elective surgery” and “other

nonemergency major medical procedures.” These became subsections (1)

and (2) of section 633.635. See 1984 Iowa Acts ch. 1299, § 16 (codified

at Iowa Code § 633.635 (1985)).

      An additional amendment in 2000 gave us the provisions excluding

routine dental and physical examinations and procedures from the scope

of “major” elective surgery or “major” nonemergency medical procedures,

and the provisions discussing anesthesia. See 2000 Iowa Acts ch. 1063,

§§ 2–3 (codified at Iowa Code § 633.635(2)–(3) (2001)).

      We have not previously construed the terms “major elective

surgery” and “nonemergency major medical procedure” as used in

section 633.635(2). However, we have indirectly touched on the present

dispute.     In In re Guardianship of Matejski, the legal guardians of an

intellectually disabled daughter filed a court application under section

633.635 to have her sterilized. 419 N.W.2d 576, 576, 578 (Iowa 1988).

We held that the district court had subject matter jurisdiction to hear the

application. Id. at 579–80. We rejected the notion, embraced by some

other states’ courts, that courts lack jurisdiction over this issue. Id. As

we put it,

      Stated another way, we do not believe our courts lack
      jurisdiction over a case merely because the case is important
      or unavoidably includes a constitutional dimension.
      Appellee, in effect, would have us remove the present issue
      from the decisional process provided by our law and judicial
      system. We know of no area of law where this has been
      done.

Id. at 579.

      We added,

              We also disagree with appellee’s contention that the
      1977 legislative repeal of the theretofore-existing mandatory
      sterilization law, see Iowa Code ch. 145 (1977), coupled with
                                         11
      the legislature’s failure to enact new provisions concerning
      the topic, manifest a legislative intent that the district court
      not be vested with the power to authorize sterilizations.

Id. at 580.       Lastly, we declined to “outline a series of procedural

protections and substantive criteria to guide the lower courts in

adjudicating these applications,” explaining that we were “not persuaded

that such action is appropriate given the posture of the present case.”

Id.

      While Matejski doesn’t say the district court has to authorize a

sterilization, it would be fair to say we considered the decision to

authorize it “important” and we anticipated the district courts would be

“adjudicating these applications.” Id. at 579–80. Also, while Matejski of

course involved a tubal ligation rather than a vasectomy, the opinion

used only the term “sterilization” and did not distinguish female or male

sterilizations.    Id.   It thus arguably offers some support to Stuart’s

position that court approval is required for a vasectomy. 3
      In holding that a vasectomy is not a “major elective surgery,” the

probate court here focused on two points: (1) it “is approximately a 20

minute procedure which is performed in a doctor’s office as opposed to a

surgical center or operating room and it does not require the use of
anesthesia,” and (2) it “is reversible, albeit by a more intrusive procedure

which could be deemed to be major elective surgery.” The first finding is

supported by testimony in the record, but the second is not.                 Amici

curiae ACLU of Iowa and Disability Rights Iowa contend that a significant

percentage of the time, a vasectomy is not reversible. We should not be




      3Note   that Majetski was decided after the 1984 amendment but before the 2000
amendment.
                                    12

trying to resolve a medical debate. Our decision therefore does not turn

on the rate at which a vasectomy can be reversed.

      As the foregoing quotation from section 633.635 indicates, the

statute does not define “major elective surgery” or “nonemergency major

medical procedure” except to make it clear that the terms do not include

      professional care, counseling, treatment, or services limited
      to the provision of routine physical and dental examinations
      and procedures under anesthesia, if the use of anesthesia is
      necessitated by the physical or mental disability of the ward,
      and if the anesthesia is provided within the scope of the
      health care practitioner’s scope of practice.

Iowa Code § 633.635(2)(b). The statute goes on to explain that “[r]outine

physical examinations and procedures” include “examinations and

procedures performed for the purpose of general treatment or diagnosis

or for the purpose of treatment or diagnosis related to a specific illness,

symptom, complaint, or injury.” Id. § 633.635(3)(b) (emphasis omitted).

Thus, the term “routine” appears to modify both “examinations” and

“procedures.”

      We are not persuaded that a vasectomy is a routine procedure

within the meaning of section 633.635(3)(b). It is not designed to treat a

specific illness, symptom, complaint, or injury. See Fuller v. CBT Corp.,

905 F.2d 1055, 1057 (7th Cir. 1990) (indicating that a vasectomy

produces a “condition”). If a vasectomy is not routine, it follows that it

could be “major.”

      Hence, after considering the statute as a whole, we believe the

terms “major elective surgery” and “nonemergency major medical

procedure” are ambiguous as applied to a vasectomy. See Samuel v. Bd.

of Chiropractic Exam’rs, 712 P.2d 132, 135 (Or. Ct. App. 1985) (holding

that a vasectomy is “major surgery” under Oregon law that cannot be

performed by chiropractors).    If the focus is on the medical risk and
                                      13

inconvenience associated with the vasectomy procedure, it may not be

considered “major.” On the other hand, the immediate consequence of

the procedure, i.e., loss of the ability to procreate, is certainly important.

“Major” is not a word that cries out with precision.

      We have interpreted ambiguous statutes in the past to avoid

constitutional problems. See State v. Iowa Dist. Ct., 843 N.W.2d 76, 85

(Iowa 2014) (discussing the doctrine of constitutional avoidance and

observing that “the proper course in the construction of a statute may be

to steer clear of ‘constitutional shoals’ when possible”). “If fairly possible,

a statute will be construed to avoid doubt as to constitutionality.”

Simmons v. State Pub. Defender, 791 N.W.2d 69, 74 (Iowa 2010); see also

Iowa Code 4.4(1) (setting forth the presumption that in enacting a

statute, “[c]ompliance with the Constitutions of the state and of the

United States is intended”); L.F. Noll Inc. v. Eviglo, 816 N.W.2d 391, 398

(Iowa 2012); In re Prop. Seizure for Forfeiture from Young, 780 N.W.2d

726, 729 (Iowa 2010) (noting “our mandate to construe statutes in a

fashion to avoid a constitutional infirmity where possible” but adding

that this principle does not apply when “[t]he language is not

ambiguous”).

      A statutory scheme that empowered a court-appointed actor (i.e., a

guardian) to have an intellectually disabled person sterilized without

some form of judicial review would raise serious due process concerns, in

our view.   Some time ago, in Skinner v. Oklahoma, the United States

Supreme Court reversed a judgment directing that a vasectomy be

performed on an Oklahoma man who was deemed a “habitual criminal.”

316 U.S. 535, 537–38, 62 S. Ct. 1110, 1111–12, 86 L. Ed. 1655, 1658

(1942).     The   Court   emphasized       that   the   right   to   procreate   is

“fundamental” and found that the law did not meet the requirements of
                                    14

the Equal Protection Clause. Id. at 541, 62 S. Ct. at 1113, 86 L. Ed. at

1660.

        The rationale of Skinner has been followed in cases involving the

sterilization of a ward. In In re Estate of K.E.J., the court—recognizing

the constitutional rights of the ward—set forth a detailed protocol that

had to be followed before a court could approve sterilization of either a

male or a female mentally disabled adult ward. 887 N.E.2d 704, 720–21

(Ill. App. Ct. 2008); see also In re C.D.M., 627 P.2d 607, 612 (Alaska

1981) (noting sterilization results in the permanent termination of “the

intensely personal right to procreate,” and therefore requires the court to

“jealously guard” the rights of the ward by requiring full judicial hearing

where the advocates of the operation “bear the heavy burden of proving

by clear and convincing evidence that sterilization is in the best

interests” of the individual); In re Terwilliger, 450 A.2d 1376, 1382–84 &

n.1 (Pa. Super. 1982) (noting the existence of a fundamental right under

Skinner and requiring court approval for sterilization of either a male or a

female adult ward); In re Guardianship of Hayes, 608 P.2d 635, 639, 641

(Wash. 1980) (noting “[s]terilization touches upon the individual’s right of

privacy and the fundamental right to procreate” and establishing

requirements that must be met before a court can order the sterilization

of an intellectually disabled person, including representation by a

guardian ad litem and medical, social, and psychological evaluations of

the individual); Eric M. Jaegers, Modern Judicial Treatment of Procreative

Rights of Developmentally Disabled Persons: Equal Rights to Procreation

and Sterilization, 31 U. Louisville J. Fam. L. 947, 979 (1992) (discussing

the evolution of sterilization laws in America and noting sterilization is

“the permanent physical deprivation of a fundamental constitutional

right” and “[m]odern American courts have given substantial judicial
                                     15

respect to the rights of developmentally disabled persons, allowing

sterilization only when necessary, or not at all”).

      In light of the foregoing, as noted, we would have serious doubts

about the constitutionality of a statute that allowed a guardian to

arrange for a ward to undergo a vasectomy without any court

involvement.     Accordingly, applying the principle of constitutional

avoidance, we hold that a vasectomy is a “major elective surgery” and a

“nonemergency major medical procedure” for which prior court approval

is required.

      For the reasons previously stated, we decline to disturb the

probate    court’s   orders     regarding    Maria’s   guardianship   and

conservatorship of Stuart. Nonetheless, we hold that section 633.635(2)

required Maria to get prior court approval for Stuart’s vasectomy.

      IV. Conclusion.

      We affirm the guardianship and conservatorship orders entered by

the probate court.

      AFFIRMED.
