State Of Iowa Vs. Timothy Allen Willard ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 84 / 07–0315
Filed September 19, 2008
STATE OF IOWA,
Appellee,
vs.
TIMOTHY ALLEN WILLARD,
Appellant.
Appeal from the Iowa District Court for Linn County, Russell G.
Keast (trial and sentencing) and Fae Hoover-Grinde (motion to dismiss),
Judges.
Defendant contends the district court erred by not granting his
motion to dismiss. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Dennis D.
Hendrickson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant
Attorney General, Harold L. Denton, County Attorney, and Jason A.
Burns, Assistant County Attorney, for appellee.
2
STREIT, Justice.
Timothy Willard is a sex offender subject to the residency
restrictions found in Iowa Code section 692A.2A (2005). He bought a
house within two thousand feet of a school. The sheriff told Willard he
could not live in the house. After Willard did not move out of the house,
he was charged with violating section 692A.2A. He filed a motion to
dismiss, claiming the two-thousand-foot rule was unconstitutional. The
district court denied his motion, and Willard was convicted. We hold
section 692A.2A is not a bill of attainder and does not violate equal
protection or procedural due process. Willard failed to preserve for
appeal his claim alleging interference with the right to interstate travel.
We affirm.
I. Facts and Prior Proceedings.
In April 1997, Willard pled guilty to two counts of indecent contact
with his then twelve-year-old stepdaughter. The girl told her school
counselor Willard touched her genitals and was pressuring her to have
sex with him. As a result of his conviction, Willard is subject to the
residency restrictions found in Iowa Code chapter 692A. A person who
has committed a sexual offense against a minor may not live within two
thousand feet of a school or child-care facility. Iowa Code § 692A.2A(2).
In February 2004, the federal district court for southern Iowa held
the two-thousand-foot rule unconstitutional on several grounds and
enjoined the State from enforcing the law. See Doe v. Miller, 298
F. Supp. 2d 844 (S.D. Iowa 2004). However, the Eighth Circuit Court of
Appeals reversed the district court on April 29, 2005. Doe v. Miller, 405
F.3d 700 (8th Cir. 2005), cert. denied, 546 U.S. 1034, 126 S. Ct. 757,
163 L. Ed. 2d 574 (2005). A few days later—May 7, 2005—Willard signed
a contract to purchase a house located at 120 First Street in Alburnett,
3
Iowa. He notified the Linn County Sheriff of his new address. See Iowa
Code § 692A.2, .3 (requiring a person convicted of a sexual offense to
register with the sheriff of the county of the person’s residence).
In October 2005, the sheriff notified Willard his new house was
within two thousand feet of a school. The sheriff gave Willard thirty days
to establish a residence in compliance with section 692A.2A. After
Willard did not move, the State charged him with violating the residency
restrictions under section 692A.2A, an aggravated misdemeanor.
Willard filed a motion to dismiss, alleging section 692A.2A violated
his right to procedural due process, constituted a bill of attainder, was
vague and overbroad, violated his right to equal protection,
unconstitutionally affected his family relationships, and violated his right
to travel. The court held a hearing on the motion. Thereafter, the parties
filed briefs with the district court. Willard briefed only three
constitutional claims: bill of attainder, equal protection, and procedural
due process. The district court denied Willard’s motion to dismiss,
concluding section 692A.2A did not violate Willard’s “constitutional
rights of equal protection nor procedural due process, and it is not a bill
of attainder.”
Willard waived his right to a jury trial and stipulated to the
minutes of evidence. The district court found he violated the residency
restrictions and imposed a $500 fine.
On appeal, Willard challenges the district court’s denial of his
motion to dismiss and contends the two-thousand-foot rule is a bill of
attainder, violates his constitutional right to equal protection and
procedural due process, and interferes with his constitutional right to
travel. We affirm for the reasons that follow.
4
II. Scope of Review.
Constitutional claims are reviewed de novo. State v. Naujoks, 637
N.W.2d 101, 106 (Iowa 2001).
III. Merits.
Iowa’s two-thousand-foot rule has withstood constitutional
challenge on several occasions. See Miller, 405 F.3d at 704–05; Wright v.
Iowa Dep’t of Corr., 747 N.W.2d 213 (Iowa 2008); State v. Groves, 742
N.W.2d 90, 93 (Iowa 2007); State v. Seering, 701 N.W.2d 655, 668 (Iowa
2005). Willard attempts to distinguish those cases by claiming he
“contracted for his home during a time when he could legally reside
there” and then was subsequently “banished.” At the outset, we find this
statement to be untrue. Willard purchased his house several days after
the Eighth Circuit reversed the district court decision finding the law
unconstitutional. Willard places much emphasis on the fact the federal
district court’s injunction was still in effect at the time he purchased his
house. On remand, the federal district court recognized an agreement of
the parties to resume enforcement of the statute on September 1, 2005.
We conclude Willard was not legally entitled to reside in his house when
he purchased it. Rather, the State simply agreed to postpone
enforcement of the statute. Willard should not have been under any
illusion that he was entitled to live in the house when he purchased it.
We turn now to his specific claims.
A. Bill of Attainder. A bill of attainder is a legislative act that
inflicts punishment on a particular individual or readily identifiable
group without a judicial trial. Atwood v. Vilsack, 725 N.W.2d 641, 651
(Iowa 2006). A bill of attainder is prohibited under the United States and
Iowa Constitutions. See U.S. Const. art. I, § 10 (“No State shall . . . pass
any Bill of Attainder . . . .”); Iowa Const. art I, § 21 (“No bill of attainder
5
. . . shall ever be passed.”). Willard claims section 692A.2A is a bill of
attainder because it (1) identifies a class of individuals, (2) inflicts
punishment on the individual member of the class, “solely and
specifically because of their status as members of a class,” and (3) fails to
provide a judicial trial. We recently rejected this argument in Wright, 747
N.W.2d at 217–18.
Certainly, section 692A.2A identifies a class of individuals—sex
offenders whose victims were minors. However, merely being subject to
the residency restrictions is not punishment. See Seering, 701 N.W.2d at
668 (stating “we cannot conclude that the statute imposes criminal
punishment under this record”). Willard was not punished solely for
being a member of this group. Instead, he was punished for violating the
residency restrictions that were enacted for the legitimate purpose of
protecting children. Id. Moreover, he was afforded all of the protections
of the judicial process when he was charged with violating section
692A.2A. His bill-of-attainder argument is therefore without merit.
B. Equal Protection. Willard claims section 692A.2A denies
him equal protection under the law. The Fourteenth Amendment
provides a state may not “deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1. Similarly,
the Iowa Constitution states “the general assembly shall not grant to any
citizen, or class of citizens, privileges or immunities, which upon the
same terms shall not equally belong to all citizens.” Iowa Const. art. I,
§ 6.
The first step of an equal protection claim is to identify the classes
of similarly situated persons singled out for differential treatment. Ames
Rental Prop. Ass'n v. City of Ames, 736 N.W.2d 255, 259 (Iowa 2007).
6
If the statute treats similarly situated persons differently, the
court must then determine what level of review is required—
strict scrutiny or rational basis. A statute is subject to
strict-scrutiny analysis—the state must show the
classification is narrowly tailored to a compelling state
interest—when it classifies individuals “in terms of their
ability to exercise a fundamental right or when it classifies or
distinguishes persons by race or national origin.” All other
statutory classifications are subject to rational-basis review
in which case the defendant must show the classification
bears no rational relationship to a legitimate government
interest.
Wright, 747 N.W.2d at 216 (citing In re Det. of Williams, 628 N.W.2d 447,
452 (Iowa 2001)).
Willard fails to identify the classes of similarly situated persons
singled out for differential treatment by the statute. See State v. Philpott,
702 N.W.2d 500, 503 (Iowa 2005) (stating “[d]efendant’s equal-protection
argument must fail because she has identified no similar class of persons
that is treated more favorably under the act than she was”). In Wright,
the defendant argued section 692A.2A violated his right to equal
protection because he claimed the law was more likely to be enforced
against sex offenders on probation as opposed to sex offenders not
currently on probation. Wright, 747 N.W.2d at 216–17. We held the two
groups were not similarly situated because one group is subject to state
monitoring while the other is not. Id. at 217. We also noted Wright
failed to show section 692A.2A treated the classes differently. Id. While
we acknowledged there may be some truth to Wright’s enforcement
argument, we noted Wright had failed to show sex offenders not on
probation escaped prosecution for violating section 692A.2A. Id.Willard takes a different tack. He attempts to trigger strict
scrutiny by claiming section 692A.2A “severely impairs his ability to
make a home with his family,” which he deems a fundamental right. See
Moore v. City of E. Cleveland, 431 U.S. 494, 499, 97 S. Ct. 1932, 1935,
7
52 L.Ed.2d 531, 537 (1977) (striking down a zoning ordinance because it
unconstitutionally interfered with “freedom of personal choice in matters
of marriage and family life” by “select[ing] certain categories of relatives
who may live together and declar[ing] that others may not”). We
disagree.
“[A]n alleged infringement of a familial right is unconstitutional
only when an infringement has a direct and substantial impact on the
familial relationship.” Seering, 701 N.W.2d at 663. The two-thousand-
foot rule does not prevent sex offenders from living with their families.
Willard’s real complaint is the rule prevents him from living in the house
of his choosing. However, in Seering, we held “freedom of choice in
residence is . . . not a fundamental interest entitled to the highest
constitutional protection.” Id. at 664. Thus, “an interest in choice of
residency is entitled to only rational basis review.” Id.Under the rational-basis test, we must determine whether the two-
thousand-foot rule is rationally related to a legitimate governmental
interest. Ames Rental Prop. Ass'n, 736 N.W.2d at 259. Under this
deferential standard, the law is valid unless the relationship between the
classification and the purpose behind it is so weak the classification
must be viewed as arbitrary or capricious. Id. A statute is presumed
constitutional and the challenging party has the burden to “negat[e]
every reasonable basis that might support the disparate treatment.” Id.In Seering, we found a reasonable fit between the government
interest (public safety) and the means utilized by the State to advance
that interest (the two-thousand-foot restriction). Seering, 701 N.W.2d at
665. Although the two-thousand-foot rule is not necessarily the perfect
protection against the danger posed by sex offenders, “perfection is not
necessary to meet the rational basis standard.” Id. We have previously
8
acknowledged “when applying a rational basis test under the Iowa
Constitution, changes in the underlying circumstances can allow us to
find a statute no longer rationally relates to a legitimate government
purpose.” Groves, 742 N.W.2d at 93. However, Willard has not
articulated any reason why our conclusion in Seering was incorrect and
has not developed an evidentiary basis for this court to conclude the
statute fails to promote a legitimate government interest. Instead, he
argues he should have an unfettered right to choose his house.1
Because we rejected that argument in Seering, this claim must fail.
C. Procedural Due Process. Willard claims section 692A.2A
denies him procedural due process under the Fourteenth Amendment
and article I, section 9 of the Iowa Constitution. “ ‘A person is entitled to
procedural due process when state action threatens to deprive the
person of a protected liberty or property interest.’ ” Seering, 701 N.W.2d
at 665 (quoting Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d
682, 690 (Iowa 2002)). Accordingly, the first step in any procedural due
process inquiry is to determine whether a protected liberty or property
interest is involved. Id. Such liberty interests have their source in the
Federal Constitution and “include such things as freedom from bodily
restraint, the right to contract, the right to marry and raise children, and
the right to worship according to the dictates of a person’s conscience.”
Id. Protected property interests “ ‘are created and their dimensions are
defined’ not by the Constitution but by an independent source such as
state law.” Id. (citation omitted).
1Willard does claim he will “face a huge financial loss if forced to sell his
property and buy another to replace it.” Even if that were true, he bought his house a
few days after the Eighth Circuit found the two-thousand-foot rule to be constitutional.
If he was hoping the court’s panel decision would be reversed en banc, that was a risk
he chose to accept when purchasing the house.
9
Once it is determined a protected interest is at issue, we weigh
three factors to determine what process is due:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including
the function involved and the fiscal and administrative
burdens that the additional or substitute procedural
requirement[s] would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d
18, 33 (1976). At the very least, procedural due process requires “notice
and opportunity to be heard in a proceeding that is ‘adequate to
safeguard the right for which the constitutional protection is invoked.’ ”
Seering, 701 N.W.2d at 665–66 (quoting Bowers, 638 N.W.2d at 691).
However, “ ‘[n]o particular procedure violates [due process] merely
because another method may seem fairer or wiser.’ ” Id. (quoting
Bowers, 638 N.W.2d at 691).
Willard contends that, because section 692A.2A interferes with his
right to contract, he is entitled to a predeprivation hearing. See Bowers,
638 N.W.2d at 691 (recognizing the right to contract is a protected liberty
interest). However, his right to contract is not directly affected by the
two-thousand-foot rule. Nothing prevents him from purchasing the
house, only from living there.
Assuming arguendo a protected liberty or property interest is at
stake, Willard has failed to prove the procedures in place are
constitutionally inadequate. Willard contends he is entitled to an
individualized hearing to determine whether he is dangerous before being
subjected to the residency restrictions. This argument was rejected in
Miller. There, the Eighth Circuit said “ ‘due process does not entitle [a
person] to a hearing to establish a fact that is not material under the
10
[state] statute.’ ” Miller, 405 F.3d at 709 (quoting Conn. Dep't of Pub.
Safety v. Doe, 538 U.S. 1, 7, 123 S. Ct. 1160, 1164, 155 L. Ed. 2d 98,
104 (2003)).
The [residency] restriction applies to all offenders who have
been convicted of certain crimes against minors, regardless
of what estimates of future dangerousness might be proved
in individualized hearings. Once such a legislative
classification has been drawn, additional procedures are
unnecessary, because the statute does not provide a
potential exemption for individuals who seek to prove that
they are not individually dangerous or likely to offend
against neighboring schoolchildren.
Id. The court concluded,
[u]nless the [sex offenders] can establish that the substantive rule
established by the legislative classification conflicts with some
provision of the Constitution, there is no requirement that the
State provide a process to establish an exemption from the
legislative classification.
Id.In Seering, we rejected a similar argument for a hearing to request
“an exemption based on difficulty of finding a suitable place to live
outside the two-thousand-foot restriction.” Seering, 701 N.W.2d at 666.
We said “[b]ecause there are no exemptions in the statute, Seering was
not entitled to a hearing before he was charged under the statute to
attempt to persuade the court that the statute should not be applied to
him.” Id. Moreover, we found “the minimum protections necessary
under due process would be met by the notice under the statute and the
trial.” Id. We see no reason to revisit our conclusion in Seering. Section
692A.2A does not violate procedural due process.
D. Right to Travel. Finally, Willard claims section 692A.2A
violates the right to interstate travel by limiting the ability of sex
offenders to establish residences in towns or cities. He states section
692A.2A deters sex offenders from immigrating to Iowa from other states.
11
The fundamental right to interstate travel recognized by the Supreme
Court protects interstate travelers against two sets of burdens: “the
erection of actual barriers to interstate movement” and “being treated
differently” from intrastate travelers. Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 276–77, 113 S. Ct. 753, 763, 122 L. Ed. 2d 34, 51
(1993).
There are at least three problems with this claim. First, Willard
did not preserve error on his right to travel claim. He failed to brief that
ground to the district court and failed to obtain a ruling on that basis.
See Kimm v. Kimm, 464 N.W.2d 468, 475 (Iowa Ct. App. 1990) (holding
“the trial court may not be put in error unless the issue was presented
for ruling, and the failure to obtain a ruling is inexcusable unless the
court refuses or fails to rule after a ruling is requested”).
Second, he has failed to mention how his right to interstate travel
has somehow been impinged. A “litigant cannot ‘borrow the claim of
unconstitutionality of another.’ ” State v. Hepburn, 270 N.W.2d 629, 631
(Iowa 1978).
Finally, Willard fails to recognize the Eighth Circuit considered and
rejected this claim in Miller. There, the court said section 692A.2A
imposes no obstacle to a sex offender’s entry into Iowa, and
it does not erect an “actual barrier to interstate movement.”
There is “free ingress and regress to and from” Iowa for sex
offenders, and the statute thus does not “directly impair the
exercise of the right to free interstate movement.” Nor does
the Iowa statute violate principles of equality by treating
nonresidents who visit Iowa any differently than current
residents, or by discriminating against citizens of other
States who wish to establish residence in Iowa.
Miller, 405 F.3d at 712 (citations omitted). For these reasons, Willard’s
right to travel claim must also fail.
12
IV. Conclusion.
We conclude Iowa Code section 692A.2A is not a bill of attainder
and does not violate equal protection or procedural due process. Willard
failed to preserve for appeal his right to travel claim.
AFFIRMED.