                   IN THE SUPREME COURT OF IOWA
                               No. 07–1336

                          Filed January 30, 2009


ROBERT E. SWANSON,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR BLACK HAWK COUNTY,

      Defendant.



      Certiorari to the Iowa District Court for Black Hawk County,

Bruce B. Zager, Judge.



      Plaintiff challenges the district court’s denial of his request for a

final hearing at his annual review.       WRIT SUSTAINED AND CASE

REMANDED.



      Mark C. Smith, State Appellate Defender, and Amy L. Kepes,

Assistant State Appellate Defender, for plaintiff.



      Thomas J. Miller, Attorney General, and Linda J. Hines and

Becky S. Goettsch, Assistant Attorneys General, for defendant.
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PER CURIAM.

      The plaintiff, Robert Swanson, a civilly committed sexual predator,

challenges a district court judgment denying his request for a final

hearing to determine whether he is eligible for release. In his petition for

writ of certiorari, Swanson claims the district court exceeded its

jurisdiction and acted illegally when it weighed conflicting expert

opinions at his annual review to determine he was not entitled to a final

hearing.

      Iowa Code chapter 229A was enacted for the long-term treatment

of sexually violent predators as well as for the protection of the public.

See Iowa Code § 229A.1 (2007). Swanson was civilly committed under

the statute in 2002.    In order to be committed as a sexually violent

predator, the State was required to prove beyond a reasonable doubt

Swanson “suffers from a mental abnormality which makes [him] likely to

engage in predatory acts constituting sexually violent offenses, if not

confined in a secure facility.”    Iowa Code §§ 229A.2(11), .7(5).     Due

process, however, requires that “[o]nce [Swanson] no longer suffers from

the mental abnormality or is no longer dangerous, the civil commitment

must end.” Johnson v. Iowa Dist. Ct., 756 N.W.2d 845, 847 (Iowa 2008)

(citing Foucha v. Louisiana, 504 U.S. 71, 77, 112 S. Ct. 1780, 1784, 118

L. Ed. 2d 437, 446 (1992)).

      Iowa Code section 229A.8 allows for an annual review in which the

committed person may ask for a final hearing to determine whether or

not he is eligible for release or transitional release. In order to obtain a

final hearing, the burden is on the committed person to show by a

“preponderance of the evidence” there is “competent evidence which

would lead a reasonable person to believe a final hearing should be held”

to determine either “[t]he mental abnormality of the committed person
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has so changed that the person is not likely to engage in predatory acts

constituting sexually violent offenses if discharged” or “[t]he committed

person is suitable for placement in a transitional release program

pursuant to section 229A.8A.” Iowa Code § 229A.8(5)(e). In Johnson, we

interpreted Iowa Code section 229A.8 to require the committed person to

“present[] admissible evidence that could lead a fact finder to find

reasonable doubt on the issue of whether his mental abnormality has

changed such that he is unlikely to engage in sexually violent offenses.”1

Johnson, 756 N.W.2d at 851. The statute does not, however, permit the

district court to weigh conflicting evidence on the issue of whether the

committed person still suffers from a mental abnormality in determining

whether the committed person is entitled to a final hearing. Id.

      At Swanson’s annual review, the State presented evidence that

Swanson was not ready for release and remained more likely than not to

commit sexually violent offenses if not confined in a secure facility.

Swanson submitted a report by Dr. Richard Wollert that concluded

Swanson’s mental abnormality had changed such that he is not likely to

commit sexually violent offenses if released. The district court weighed

the evidence and concluded Swanson had not met his burden of proof

“either that his mental abnormality has so changed that he is not likely

to engage in predatory acts constituting sexually-violent offenses if

discharged, or that he is ready or suitable for placement in the

Transitional Release Program.” Based upon our opinion in Johnson, we

conclude Swanson met his burden of presenting admissible evidence

that, if believed, could lead a fact finder to find reasonable doubt on the

issue of Swanson’s mental abnormality.           Therefore, the district court


      1Competent evidence    means admissible evidence, not credible evidence.
Johnson, 756 N.W.2d at 850 n.4 (citing Black’s Law Dictionary 596 (8th ed. 2004)).
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erred in failing to grant Swanson a final hearing. The writ of certiorari to

this court is sustained, and the case is remanded to the district court for

a final hearing.

      WRIT SUSTAINED AND CASE REMANDED.

      This opinion is not to be published.
