Amended July 25, 2017 In RE the Detention of Jeffrey Anderson, Jeffrey Anderson ( 2017 )


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  •                IN THE SUPREME COURT OF IOWA
    No. 15–2122
    Filed May 12, 2017
    Amended July 25, 2017
    IN RE THE DETENTION OF JEFFREY ANDERSON,
    JEFFREY ANDERSON,
    Appellant.
    Appeal from the Iowa District Court for Polk County, Arthur E.
    Gamble, Judge.
    The district court revoked the release-with-supervision status of a
    person committed under the Sexually Violent Predators Act.           The
    committed person now argues the revocation of his release-with-
    supervision status and his placement in the transitional release program
    violates due process. AFFIRMED.
    Michael H. Adams, Local Public Defender, and Amy Kepes,
    Assistant Public Defender, for appellant.
    Thomas J. Miller, Attorney General, and Gretchen Kraemer,
    Assistant Attorney General, for appellee.
    2
    ZAGER, Justice.
    Jeffrey Anderson was civilly committed to the Civil Commitment
    Unit for Sexual Offenders (CCUSO) under the Sexually Violent Predators
    Act (SVPA). He was later granted release with supervision to the Fort Des
    Moines Residential Facility. After he violated the terms of his release-
    with-supervision plan, the district court revoked his release-with-
    supervision status and ordered him placed at the transitional release
    program housed at CCUSO. Anderson now challenges the district court
    order placing him in the transitional release program at CCUSO as a
    violation of his rights under the Due Process Clauses of the United States
    Constitution and the Iowa Constitution. For the reasons stated below,
    we hold that the district court order placing Anderson in the transitional
    release program at CCUSO did not violate due process.
    I. Background Facts and Proceedings.
    On June 23, 2011, a jury determined that Jeffrey Anderson is a
    sexually violent predator (SVP) under Iowa Code chapter 229A. See Iowa
    Code § 229A.7(5) (2011).   Between 1977 and 1994, Anderson sexually
    assaulted or attempted to sexually assault six different girls and women.
    In 1977, at the age of fourteen, Anderson attempted to sexually assault a
    nine-year-old girl. He received probation. In March 1982, at the age of
    nineteen, he was charged with assault with intent to commit sexual
    abuse for choking and raping a college-aged woman.        In April 1982,
    Anderson was charged with sexual abuse in the second degree for the
    attempted rape of a female acquaintance. He pled guilty to one count of
    assault with intent to commit sexual abuse for the two 1982 charges and
    was given a sentence of two years’ incarceration.            During this
    incarceration, he completed the Iowa Sex Offender Treatment Program
    (SOTP).   In 1983, at the age of twenty, Anderson raped a twenty-one-
    3
    year-old physically handicapped woman. He pled guilty to sexual abuse
    in the third degree and was sentenced to a ten-year term of
    incarceration.   He again completed the SOTP while incarcerated.         In
    1993, at the age of thirty, Anderson was charged with kidnapping and
    sexual abuse in the second degree for sexually assaulting a twenty-one-
    year-old female acquaintance. He was convicted of simple assault. In
    1994, at the age of thirty-one, he was charged with burglary in the first
    degree, assault with intent to commit sexual abuse, and sexual abuse in
    the third degree after he went to the home of a coworker and raped her in
    front of her son. He was found guilty of all three counts and sentenced
    to thirty-five years’ incarceration. Anderson participated in SOTP twice
    during this incarceration, but never completed the program.          He was
    removed from the program on his first attempt because his account of
    the sexual assaults differed from the official records. He was removed
    from the program on his second attempt for refusal to participate.
    Adjudicating Anderson as an SVP means the jury determined,
    beyond a reasonable doubt, that Anderson suffered from a mental
    abnormality which made him likely to engage in predatory acts
    constituting sexually violent offenses. See 
    id. § 229A.2(11)
    (now .2A(12)).
    Anderson was committed to the custody of the director of the Iowa
    Department of Human Services (DHS) for control, care, and treatment
    until such time as his mental abnormality has so changed that he is safe
    to be placed in a transitional release program or discharged.            
    Id. § 229A.7(5)(b).
    While he was under the control, care, and treatment of
    DHS, he was placed at its secure facility in CCUSO. During treatment,
    Anderson admitted to numerous other sexual assaults. Anderson has
    been diagnosed with personality disorder not otherwise specified (non-
    consent) and antisocial personality disorder.
    4
    After an annual review on November 13, 2014, Anderson
    submitted a report from Dr. Richard Wollert. In the report, Dr. Wollert
    opined that Anderson was no longer likely to engage in sexually
    predatory acts constituting sexually violent offenses if he were given the
    chance to be released from CCUSO.          Dr. Wollert further opined that
    Anderson was a suitable candidate for the transitional release program
    at CCUSO. Based upon this report, Anderson requested a final hearing.
    After considering all of the evidence presented, the district court set the
    matter for a final hearing.
    Trial   on   whether    Anderson’s   commitment     should   continue
    commenced on February 11, 2015. The jury returned a verdict two days
    later with the following answers:
    Question No. 1: Did the State prove by evidence
    beyond a reasonable doubt that Respondent’s mental
    abnormality remains such that he is likely to engage in
    predatory acts that constitute sexually violent offenses if
    discharged? ANSWER: . . . No.
    Question No. 2: Did the State prove by evidence
    beyond a reasonable doubt that Respondent is not suitable
    for placement in a transitional release program? ANSWER:
    . . . Yes.
    Because the parties considered the jury’s answers to be inconsistent, the
    district court ordered further briefing. The district court set a hearing for
    March 12 to determine the meaning of the verdicts and to answer the
    constitutional issues raised. The district court conducted the hearing on
    March 20 and issued its order on March 27. The district court held that
    it was in the best interest of the community for Anderson to be released
    with supervision before being discharged from CCUSO.            The district
    court further found that the State proved release with supervision would
    help Anderson safely reenter society.      The district court noted, “[T]he
    Respondent now agrees that he should be released with supervision
    5
    under a release plan coordinated by DHS and the Fifth Judicial District
    Department of Correctional Services.” The district court also ordered,
    Consistent with due process and the opinion of the Supreme
    Court in Matlock[1] and pursuant to Iowa Code Section
    229A.9A(2), within sixty (60) days of March 20, 2015, DHS
    shall prepare a release plan addressing Respondent’s needs
    for counseling, medication, community support services,
    residential services, vocational services, alcohol and other
    drug abuse treatment, sex offender treatment, or any other
    treatment or supervision necessary.
    DHS, in coordination with the Iowa Department of Correctional
    Services (DCS), filed the release-with-supervision plan on May 19, and
    the district court held a hearing on the plan on May 22.                   Without
    objection by Anderson, the district court approved the release-with-
    supervision plan as written and ordered the sheriff to transport Anderson
    to the Fort Des Moines Residential Facility. Anderson was placed under
    the supervision of the Fifth Judicial District DCS.                   Pursuant to
    Anderson’s release plan, he was not allowed to have sexual contact with
    another person without permission while he was living at the Fort Des
    Moines facility. The terms of his release-with-supervision plan required
    him to disclose “all pertinent and relevant information” about any
    potential romantic relationship to DCS for approval.               Additionally, the
    Fort Des Moines facility has its own rules and regulations that Anderson
    was required to comply with. One such rule prohibits residents of the
    facility from engaging in sexual contact with another resident.
    On October 16, another resident of the Fort Des Moines facility,
    T.B., reported that Anderson sexually assaulted him while Anderson was
    driving him to work. T.B. reported that Anderson asked him if he needed
    a ride and he accepted. While they were driving, the two made small talk
    1In   re Det. of Matlock, 
    860 N.W.2d 898
    , 901 (Iowa 2015).
    6
    and Anderson told T.B. that he is homosexual.       Anderson then pulled
    into a parking lot. T.B. asked Anderson why they were stopping, and
    Anderson did not respond. Anderson told T.B. he was pretty and then
    started to undo his pants. T.B. tried to push Anderson off, but Anderson
    pinned him down and began to perform oral sex. T.B. reported that he
    was initially too scared to move but was eventually able to push
    Anderson off of him. T.B. left the car and jogged across the street to get
    away from Anderson. After T.B. left, he approached an off-duty police
    officer who was working as a security guard at the DART Central Station.
    T.B. called his counselor at the Fort Des Moines facility to report the
    incident. T.B. then made a police report with the officer.
    When confronted, Anderson claimed the sexual activity was
    consensual and that T.B. initiated the contact. However, based on the
    police report filed regarding the incident and incident reports obtained
    from the Fort Des Moines facility, the State filed a motion for ex parte
    revocation alleging that Anderson had violated the terms of his release-
    with-supervision plan.
    T.B. later recanted and said the sexual contact was consensual.
    On October 19, the State filed an amended motion to include the
    information that T.B. had recanted his claim that the sexual contact was
    nonconsensual. However, the conduct was still in violation of Anderson’s
    release-with-supervision plan and the rules and regulations of the Fort
    Des Moines facility.     On October 22, the district court filed an order
    commanding the sheriff to transport Anderson to the secure custody of
    CCUSO pending a hearing.
    On November 16, the district court held a hearing on the motion to
    revoke Anderson’s release-with-supervision status. Anderson stipulated
    that he had sex with an eighteen-year-old resident of the Fort Des
    7
    Moines facility without permission, which was against the rules of the
    facility and in violation of his release-with-supervision plan.
    Anderson testified as to his version of the incident.           Anderson
    testified that the sexual encounter occurred while he was on his way to
    work. Anderson picked T.B. up away from the facility. While driving,
    Anderson and T.B. started discussing their age difference. At the time,
    Anderson was fifty-two and T.B. was eighteen. Anderson testified that
    T.B. began “hitting on” him, and he was surprised because of their age
    difference. He further testified that T.B. was the initiator of the sexual
    contact. According to Anderson, T.B. suggested Anderson pull the car
    over. According to Anderson, he then entered the backseat and engaged
    in sexual activity with T.B. at T.B.’s request. The district court found
    Anderson’s version of the encounter not credible.          It likewise found
    Dr. Wollert’s   testimony   less   credible   because   Dr. Wollert    believed
    Anderson’s version of events.
    Dr. Tony Tatman also testified at the hearing. Dr. Tatman testified
    about the sexual contact and how it related to Anderson’s cycle of
    offending.   Dr. Tatman testified that Anderson’s placement of all the
    responsibility of the sexual encounter on the eighteen-year-old T.B. was
    consistent with Anderson’s manipulative behavior.           Dr. Tatman also
    testified that the encounter, which took place outside the facility,
    demonstrated advance planning.            Dr. Tatman further testified that
    Anderson’s choice in a sexual partner was consistent with his offending
    cycle. Dr. Tatman opined that the sexual encounter seemed at odds with
    a mutually consensual act, even though T.B. later recanted. Dr. Tatman
    testified that following the sexual encounter, T.B. immediately left the
    vehicle, obtained access to a phone, and reported the assault both to his
    facility counselor and directly to the police.
    8
    On November 18, the district court issued its order revoking
    Anderson’s release-with-supervision status.    It found that Anderson
    violated a provision of his release-with-supervision plan by having sex
    without prior approval from his counselor at the Fort Des Moines facility
    and by having sex with an inappropriate partner.      The district court
    made credibility findings and found credible Dr. Tatman’s testimony that
    Anderson was at a higher risk after the violation than at the time of the
    jury proceeding. However, the district court also noted that Dr. Tatman
    could not say whether Anderson was more likely than not to reoffend.
    The district court revoked Anderson’s release-with-supervision status
    and ordered him to be placed in the transitional release program, which
    is located at CCUSO. Anderson timely appealed the district court order.
    We retained the appeal.
    II. Standard of Review.
    Our review of constitutional claims is de novo.      In re Det. of
    Matlock, 
    860 N.W.2d 898
    , 901 (Iowa 2015).      To the extent Anderson’s
    claims require us to interpret provisions of our SVPA, we review the
    district court’s construction and interpretation of the statute for
    correction of errors at law. In re Det. of Cubbage, 
    671 N.W.2d 442
    , 444
    (Iowa 2003).
    III. Analysis.
    A. Error Preservation.       The State argues Anderson did not
    preserve error on his claim that revoking his release-with-supervision
    status and placing him in the transitional release program at CCUSO
    violates due process.     The State claims that error was not preserved
    because the district court did not rule on the constitutional issue from
    the bench, and Anderson did not provide authority for the argument
    beyond citation to the constitutions. Anderson responds that error was
    9
    preserved because the argument was raised to the district court during
    the hearing, and the district court’s ruling overruled the argument even
    though it did not expressly address the constitutional claim.
    Our general rule of error preservation is that we will not decide an
    issue presented before us on appeal that was not presented to the
    district court.   See, e.g., City of Postville v. Upper Explorerland Reg’l
    Planning Comm’n, 
    834 N.W.2d 1
    , 8 (Iowa 2013). In order for error to be
    preserved, the issue must be both raised and decided by the district
    court. Bank of Am., N.A. v. Schulte, 
    843 N.W.2d 876
    , 883 (Iowa 2014).
    The reason for this principle relates to the essential
    symmetry required of our legal system. It is not a sensible
    exercise of appellate review to analyze facts of an issue
    “without the benefit of a full record or lower court
    determination.”
    Meier v. Senecaut, 
    641 N.W.2d 532
    , 537 (Iowa 2002) (quoting Yee v. City
    of Escondido, 
    503 U.S. 519
    , 538, 
    112 S. Ct. 1522
    , 1534 (1992)).          The
    underlying requirement of error preservation is to give opposing counsel
    notice of the argument and opportunity to be heard on the issue. Lee v.
    State, 
    815 N.W.2d 731
    , 739 (Iowa 2012).               However, our error
    preservation rules were not designed to be hypertechnical. Griffin Pipe
    Prods. Co. v. Bd. of Review, 
    789 N.W.2d 769
    , 772 (Iowa 2010).
    Similarly, it is a fundamental principle of our appellate review that
    “we assume the district court rejected each defense to a claim on its
    merits, even though the district court did not address each defense in its
    ruling.” 
    Meier, 641 N.W.2d at 539
    . When we review a district court’s
    ruling,
    [w]e first examine the basis upon which the trial court
    rendered its decision, affirming on that ground if possible. If
    we disagree with the basis for the court’s ruling, we may still
    affirm if there is an alternative ground, raised in the district
    10
    court and urged on appeal, that can support the court’s
    decision.
    Hawkeye Food Distrib., Inc. v. Iowa Educators Corp., 
    812 N.W.2d 600
    ,
    609 (Iowa 2012) (quoting Fencl v. City of Harpers Ferry, 
    620 N.W.2d 808
    ,
    811–12 (Iowa 2000) (citation omitted)). We have applied this rule to both
    affirm and reverse a district court’s ruling. 
    Id. at 609–10.
    During the hearing to determine whether revocation of Anderson’s
    release-with-supervision status was appropriate, Anderson’s attorney
    argued that not allowing him to continue with release with supervision
    “would be a violation of Mr. Anderson’s liberty interest and due process
    under both the U.S. Constitution, the Fourteenth Amendment, and the
    Iowa Constitution, Article 1, Section 9.”    While counsel conceded that
    release with supervision was appropriate, she noted that the district
    court’s ruling on Anderson’s status needed to comport with the
    Constitution.   Counsel further argued the State had not demonstrated
    that Anderson was more likely than not to reoffend and that this was the
    standard necessary to order him back to CCUSO.
    The district   court’s order revoking      Anderson’s release-with-
    supervision status did not address any of the constitutional arguments.
    Anderson never filed a motion requesting the district court rule on the
    constitutional issues. However, the issue of constitutionality was raised
    throughout the proceedings. Opposing counsel had sufficient notice that
    the constitutionality of Anderson’s revocation of release-with-supervision
    status would be an issue on appeal. Error was preserved.
    B. Substantive Due Process. Anderson argues that the district
    court’s decision to revoke his release-with-supervision status and place
    him in the transitional release program at CCUSO violates his right to
    due process under both the United States Constitution and the Iowa
    Constitution.    He argues that the revocation of his release-with-
    11
    supervision status and placement in the transitional release program
    violates substantive due process for two reasons: (1) there was no finding
    that he was more likely to sexually reoffend, and (2) the conditions
    imposed do not balance the interest of the community against his liberty
    interest. The State responds that the statute does not require the district
    court to find Anderson is more likely to reoffend in order to transfer him
    to the transitional release program after he had been released with
    supervision. The State further argues that substantive due process has
    been satisfied by the statute because there is a reasonable relationship
    between the State’s objective of protecting society and the district court’s
    discretion to determine where an individual who has violated the terms of
    release with supervision should be placed pending the next annual
    review.
    The Due Process Clause of the United States Constitution provides
    that a state may not “deprive any person of life, liberty, or property
    without due process of law.” U.S. Const. amend. XIV, § 1. Similarly, the
    Iowa Constitution provides that “no person shall be deprived of life,
    liberty, or property, without due process of law.” Iowa Const. art. I, § 9.
    Traditionally, we have “considered the federal and state due
    process provisions to be equal in scope, import, and purpose.” 
    Matlock, 860 N.W.2d at 903
    (quoting In re Det. of Garren, 
    620 N.W.2d 275
    , 284
    (Iowa 2000)).   We reserve the right to construe our state constitution
    differently from the United States Constitution.     
    Id. This is
    true even
    when the two provisions “contain nearly identical language and appear to
    have the same scope, import, and purpose.”           Id.; see also State v.
    Kooima, 
    833 N.W.2d 202
    , 206 (Iowa 2013).          When a party does not
    suggest a framework for analyzing the Iowa Constitution that is different
    from the framework utilized under the United States Constitution, we
    12
    apply the general federal framework.       
    Matlock, 860 N.W.2d at 903
    .
    However, we reserve the right to apply the federal framework in a
    different manner. 
    Id. When a
    substantive due process violation is alleged, we follow a
    two-step analysis. King v. State, 
    818 N.W.2d 1
    , 31 (Iowa 2012). The first
    step is to determine the nature of the right involved and the second is to
    determine the appropriate level of scrutiny to apply. 
    Id. If the
    right is a
    fundamental right, we apply strict scrutiny.    
    Id. For other
    rights, we
    apply a rational basis test. 
    Id. The core
    of the Due Process Clause is an
    individual’s right to be free from bodily restraint caused by arbitrary
    actions by the government. 
    Matlock, 860 N.W.2d at 903
    ; see Foucha v.
    Louisiana, 
    504 U.S. 71
    , 80, 
    112 S. Ct. 1780
    , 1785, (1992). This liberty
    interest is not absolute. 
    Garren, 620 N.W.2d at 284
    .
    We have previously addressed a number of substantive due
    process questions in the context of our SVPA. In Garren, a committed
    person challenged the SVPA, arguing that the committal process violated
    his substantive due process rights because it did not allow the court to
    consider a less restrictive alternative to placing him at CCUSO. 
    Id. at 284–85.
    We addressed the United States Supreme Court’s decision in
    Kansas v. Hendricks, 
    521 U.S. 346
    , 
    117 S. Ct. 2072
    (1997). 
    Id. at 279.
    In Hendricks, the Court held that Kansas’s civil commitment statutes
    were civil in nature and therefore did not trigger the same constitutional
    protections afforded criminal 
    defendants. 521 U.S. at 361
    , 117 S. Ct. at
    2082. The Court also held that a finding of dangerousness, coupled with
    proof of an additional factor such as mental illness or abnormality, was
    sufficient for the Kansas SVPA to withstand a substantive due process
    challenge. 
    Id. at 361–62,
    117 S. Ct. at 2082.
    13
    As a threshold matter, we held that our SVPA, which is similar to
    the Kansas statute, is civil in nature. 
    Garren, 620 N.W.2d at 283
    . We
    also noted that our SVPA is similar in nature and scope to the Kansas
    SVPA and other civil commitment statues that have survived substantive
    due process challenges.    
    Id. at 284–85.
       We found that Garren’s least
    restrictive alternative argument also did not survive a substantive due
    process challenge.    
    Id. at 285.
       Even if a right exists to the least
    restrictive alternative placement, the right is not a fundamental right. 
    Id. Therefore, the
    most substantive due process required for Garren’s
    challenge to the SVPA was a “reasonable fit between the governmental
    purpose and the means chosen to advance that purpose.” 
    Id. (quoting In
    re B.B., 
    516 N.W.2d 874
    , 879 (Iowa 1994)).
    In Cubbage, the petitioner argued he had a substantive due
    process right to be competent during the course of his SVPA 
    proceedings. 671 N.W.2d at 445
    .        We were first required to determine whether
    Cubbage’s right to competency was a fundamental right, triggering a
    strict scrutiny analysis, or whether a rational basis analysis was
    appropriate.   
    Id. at 446–48.
      Again, the fact that our SVPA is civil in
    nature was the key. 
    Id. at 447–48.
    We noted that both the Supreme
    Court and our own precedents have held that a “criminal trial of an
    incompetent defendant violates due process.” 
    Id. at 447
    (quoting State v.
    Rieflin, 
    558 N.W.2d 149
    , 152 (Iowa 1996), overruled in part on other
    grounds by State v. Lyman, 
    776 N.W.2d 865
    , 873 (Iowa 2010)). However,
    Cubbage’s challenge arose in a civil context, and the Supreme Court has
    not yet recognized the same fundamental right to competency for civil
    commitment proceedings. 
    Id. at 447
    . We agreed and held that Cubbage
    did not have a fundamental right to competency during his SVPA
    proceedings.   
    Id. Because Cubbage’s
    right to competency was not
    14
    fundamental, we applied a rational basis test to determine whether
    substantive due process was violated. 
    Id. at 448.
    We weighed whether
    there was “a reasonable fit between the governmental purpose and the
    means chosen to advance that purpose” and found that there was. 
    Id. at 448
    (quoting 
    Garren, 620 N.W.2d at 285
    ).
    Although we applied a rational basis test in both Garren and
    Cubbage, we applied a more stringent test to determine what process
    was due in 
    Matlock, 860 N.W.2d at 904
    , 907–08. Matlock challenged the
    district court’s order imposing release with supervision. 
    Id. at 903.
    The
    district court found that the State proved beyond a reasonable doubt
    that he suffered from a mental abnormality, but that the State failed to
    prove beyond a reasonable doubt that he was likely to engage in future
    sexually violent offenses if discharged. 
    Id. at 904.
    Relying on Hendricks,
    we noted that we would weigh Matlock’s liberty interest against the
    State’s reason for restraining his liberty interest in order to determine
    whether a substantive right was violated. 
    Id. at 904.
    We held that, under the SVPA, “if a person still suffers from a
    mental abnormality, but the State cannot prove he or she is likely to
    engage in acts of sexual violence upon release, the courts must release
    that person.” 
    Id. at 905.
    If the State is unable to demonstrate both, then
    continued confinement violates the committed person’s due process
    rights. 
    Id. However, if
    the court finds that the State proved release with
    supervision would help the committed person safely reenter society, the
    court may impose certain conditions. 
    Id. Matlock also
    challenged the conditions of his release under due
    process. 
    Id. We noted
    that conditions of release plans implicate a liberty
    interest for the committed person. 
    Id. Because of
    that liberty interest,
    15
    [d]ue process requires the court to properly balance the
    interest of the community against the liberty interest of a
    person suffering from a mental abnormality who is not likely
    to engage in acts of sexual violence upon release. To do this,
    the district court must strike the proper balance between the
    treatment needs of a person released with supervision and
    the protection of the public.
    
    Id. at 907
    (citation omitted). We remanded the case so the court could
    determine whether Matlock’s release-with-supervision plan properly
    balanced his interests against those of the community. 
    Id. at 908.
    Anderson’s case presents us with an issue of first impression, as
    we have never engaged in a substantive due process analysis of the
    statute granting the court discretion in determining the appropriate
    placement after a committed person violates the terms of release with or
    without supervision.    Here, the court’s placement options have the
    potential to restrict Anderson’s liberty, which is a fundamental right.
    Because of the liberty interest implicated in Anderson’s revocation
    hearing, a heightened standard of review is appropriate.         
    King, 818 N.W.2d at 31
    (noting that strict scrutiny applies if a right is
    fundamental).    As in Matlock, the appropriate test is to weigh the
    individual’s liberty interest against the State’s reason for restraining the
    individual’s 
    liberty. 860 N.W.2d at 904
    .
    1. Iowa statute. Iowa Code section 229A.8 is the statute that sets
    forth the procedures for determining whether the individual is entitled to
    a final hearing. Iowa Code § 229A.8 (2016). This Code section provides
    that there is a rebuttable presumption that commitment should continue
    for individuals civilly committed under the SVPA. 
    Id. § 229A.8(1).
    At the
    annual review hearing, the committed person has the burden to
    demonstrate by a preponderance of the evidence that “relevant and
    reliable evidence” exists to rebut this presumption. 
    Id. § 229A.8(5)(e)(1).
    If the committed person is able to provide this relevant and reliable
    16
    evidence,   the      district   court   shall   hold   a   final   hearing.   
    Id. § 229A.8(5)(e)(2).
        At the final hearing, the State has the burden to
    demonstrate beyond a reasonable doubt either of the following: (1) “[t]he
    committed person’s mental abnormality remains such that the person is
    likely to engage in predatory acts that constitute sexually violent offenses
    if discharged,” or (2) “[t]he committed person is not suitable for
    placement in a transitional release program pursuant to section
    229A.8A.” 
    Id. § 229A.8(6)(d).
    In Matlock, we noted that the State must
    demonstrate that a person committed under the SVPA still suffers a
    mental abnormality and is likely to engage in sexually violent acts if
    released in order to justify continued 
    confinement. 860 N.W.2d at 905
    .
    However, we did not decide in Matlock whether continued
    confinement was still justified if the jury decided, as it did here, that the
    State had met its burden of proof that Anderson was not suitable for
    placement in a conditional release program. Nor do we need to decide
    the issue in this case. After several hearings conducted by the district
    court regarding how to interpret the jury’s answers, the State and
    Anderson stipulated that he would be released under the terms of
    supervision accepted by the district court.
    It is important to understand the interplay between the multiple
    statutory provisions that apply to Anderson’s situation. As a result of
    the final hearing, there were a range of placement options that
    potentially applied to Anderson. First, since the State proved beyond a
    reasonable doubt that Anderson was not suitable for conditional release,
    he arguably could have been returned to the appropriate secure facility
    at CCUSO. Iowa Code § 229A.8. Because of some confusion regarding
    the effect of the jury’s verdicts, this was not considered.            As will be
    discussed later in greater detail, the State and the committed individual
    17
    may stipulate to a transfer to a transitional release program.          See 
    id. § 229A.8(7).
    That is what occurred here.
    “Transitional release” is defined as a “conditional release from a
    secure facility operated by the department of human services with the
    conditions of such release set by the court or the department of human
    services.”   
    Id. § 229A.2(13)
      (emphasis   added).    This    differs   from
    “discharge,” which is defined as “an unconditional discharge from the
    sexually violent predator program.”         
    Id. § 229A.2(4).
        Therefore, the
    transitional release program located at CCUSO was a second placement
    option for the district court, even though it was not recommended by the
    State or the jury, or stipulated to by Anderson.         It would have been,
    however, a conditional release from a secure facility.
    These were not the only placement options available to the district
    court under the facts here. The statute provides that in any proceeding
    under section 229A.8, the court may order the committed person
    released with or without supervision. See 
    id. § 229A.9A.
    Both of these
    placement options are likewise conditional release from a secure facility.
    
    Id. Release with
    supervision was the placement option stipulated to by
    the State and Anderson, which constituted a conditional release from a
    secured facility.
    Anderson was released from CCUSO under the terms and
    conditions set forth in a release plan prepared by DHS and the Fifth
    Judicial District DCS, and approved by the district court. Once an SVP
    is released with supervision, the provisions of section 229A.9B provide
    the procedure for determining violations of the terms of release.           The
    procedures provided are quite different from the procedures required for
    a committed person’s annual review and final hearing.              Compare 
    id. § 229A.8,
    with 
    id. § 229A.9B.
    Once a final hearing is held under section
    18
    229A.8, and the district court determines that the individual release with
    or without supervision plan is appropriate, the court thereafter retains
    jurisdiction over the committed person until he or she is discharged from
    the program. 
    Id. § 229A.9A(8).
    During the time a committed person is released with supervision
    but not yet discharged, he or she may violate the terms of supervision.
    The Code provides detailed procedures to be utilized in the case of an
    alleged violation.   
    Id. § 229A.9B.
      Notably, section 229A.9B makes no
    mention of a requirement to demonstrate either mental abnormality or
    likelihood of engaging in future sexually violent offenses.     
    Id. If the
    agency with jurisdiction determines a committed person has violated the
    terms of a release plan, the agency may request that the district court
    enter an emergency ex parte order directing law enforcement to return
    the committed person to a secure facility pending a hearing.             
    Id. § 229A.9B(1).
       Once the committed person is returned to a secure
    facility, the district court must set a date for a hearing to determine
    whether a violation of the release plan occurred. 
    Id. § 229A.9B(3).
    At the
    hearing, the attorney general has the burden to demonstrate by a
    preponderance of the evidence that the committed person violated the
    terms of the release plan.       
    Id. § 229A.9B(4).
      If the district court
    determines a violation has occurred, it then has the discretion to return
    the committed person to release with or without supervision, place the
    committed person in a transitional release program, or confine the
    committed person to a secure facility. 
    Id. § 229A.9B(5).
    These placement options have varying degrees of restrictions, with
    the final option available to the court being secure confinement. Release
    with or without supervision is the least restrictive option available to the
    court. See 
    id. § 229A.9A.
    Although the transitional release program is
    19
    housed at the same facility as CCUSO, it is not the same as confinement
    in a secure facility.   Compare 
    id. § 229A.2(13),
    with 
    id. § 229A.2(2).
    “Transitional release” is defined by the statute as “a conditional release
    from a secure facility operated by the department of human services with
    the conditions of such release set by the court or the department of
    human services.”     
    Id. § 229A.2(13)
    .   In contrast, “secure facility” is
    defined as “a state facility that is designed to confine but not necessarily
    to treat a sexually violent predator.” 
    Id. § 229A.2(2).
    This distinction is
    acknowledged in other places in the SVPA. Section 229A.7 notes that
    SVPs are housed at appropriate secure facilities “[a]t all times prior to
    placement in a transitional release program or release with or without
    supervision.” 
    Id. § 229A.7(7).
    2. Other state statutes. A number of states have statutes similar
    to Iowa Code section 229A.9B regarding revocation that have not faced a
    due process challenge in court.
    In Kansas, the state carries the burden of demonstrating by
    probable cause that a person in a transitional release program violated
    the terms and conditions of the release. Kan. Stat. Ann. § 59-29a08(f),
    (g) (West, Westlaw current through 2017 Reg. Sess.). If the state meets
    this burden, the court has the discretion to return the individual to
    secure confinement or back to the transitional release program with or
    without additional conditions. 
    Id. § 59-29a08(g).
    In Missouri, a committed person must be placed on conditional
    release if the court finds the person’s “mental abnormality has so
    changed that the person is not likely to commit acts of sexual violence if
    released.”   Mo. Ann. Stat. § 632.505(1) (West, Westlaw current with
    emergency legis. through Mar. 30, 2017). However, if the court finds by
    a preponderance of the evidence that the individual has violated the
    20
    terms of conditional release, the court has a number of options.            
    Id. § 632.505(7)(7).
    The court may revoke the conditional release and return
    the committed person to a secure facility. 
    Id. The court
    may also modify
    or increase the conditions of release. 
    Id. If an
    individual’s conditional
    release is revoked, he or she may not petition the court for subsequent
    conditional release for a minimum of six months. 
    Id. § 632.505(7)(8).
    In Virginia, if a petition is filed alleging an individual on conditional
    release has violated the terms of release, the court that originally
    conditionally released the individual must hold a hearing to determine
    the individual’s status.    Va. Code Ann. § 37.2-913(C) (West, Westlaw
    current through 2016 Reg. Sess.). “If upon hearing evidence,” the court
    determines that the individual violated the terms of release, the court
    has the option to return him or her to secure custody. 
    Id. § 37.2-913(D).
    The secured individual then must wait at least six months before
    petitioning for re-release. 
    Id. In Wisconsin,
    the state bears the burden of demonstrating by clear
    and convincing evidence that either a term of conditional release has
    been violated or the individual poses a danger to the community. Wis.
    Stat. Ann. § 980.08(8) (West, Westlaw current through 2017 Act 6). If
    the state meets its burden, the court has the discretion to revoke the
    conditional release. 
    Id. While the
    court has the discretion to consider
    alternatives to revocation, the court may choose to place the individual in
    institutional confinement for the violation. 
    Id. In Washington,
    the state bears the burden of proving by a
    preponderance of the evidence that an individual on conditional release
    has either violated the terms of the conditional release order or that the
    individual is in need of additional treatment.       Wash. Rev. Code Ann.
    § 71.09.098(5)(c) (West, Westlaw current through 2016 Reg. & Spec.
    21
    Sess.). If the state meets this burden, the court weighs five factors to
    determine whether to revoke the conditional release or to modify the
    terms.   
    Id. § 71.09.098(6)(a),
    (7), (8).   The court has the discretion to
    order an individual back to total confinement. 
    Id. § 71.09.098(8).
    3. Approach of other courts.     Other courts have considered the
    difference in standards required for continued secure confinement and
    the standards required to revoke a release status after a violation has
    been found.
    In Arizona, a jury found John Sanchez to be a sexually violent
    person as defined by the Arizona Sexually Violent Persons Act (SVPA),
    and he was committed for placement at a treatment center. In re Pima
    Cty. Mental Health Cause No. A20020026, 
    352 P.3d 921
    , 923 (Ariz. Ct.
    App. 2015).    Sanchez later petitioned for release to a less restrictive
    environment. 
    Id. The court
    found that the state was unable to meet its
    statutory burden of demonstrating by proof beyond a reasonable doubt
    that Sanchez’s “disorder has not changed and that he is likely to engage
    in acts of sexual violence if discharged.”         
    Id. The court
    ordered
    conditional release. 
    Id. Sanchez later
    admitted to touching a young girl
    on her back, and the district court revoked his conditional release status.
    
    Id. After a
    hearing, the district court revoked Sanchez’s conditional
    release and committed him to secure confinement.             
    Id. Sanchez appealed,
    arguing that the revocation of his conditional release and
    return to confinement was improper. 
    Id. at 923–24.
    Similar to the Iowa SVPA, Arizona requires different burdens of
    proof and different showings for a hearing following an annual review
    and for a hearing to determine whether release status should be revoked.
    See 
    id. at 924;
    see also Ariz. Rev. Stat. Ann. §§ 36–3709, 36–3713
    (Westlaw current through May 3, 2017). When the district court holds a
    22
    hearing regarding the change of status after an annual review, the state
    is required to prove beyond a reasonable doubt that an SVP’s mental
    disorder has not changed or that he or she remains a danger. Pima 
    Cty., 352 P.3d at 924
    ; see also Ariz. Rev. Stat. Ann. § 36–3709. However, in
    the revocation context, the state need only prove by a preponderance of
    the evidence that the conditionally released person should be committed
    to “total confinement.” Pima 
    Cty., 352 P.3d at 924
    ; see also Ariz. Rev.
    Stat. Ann. § 36–3713(C). The State can do this by demonstrating that
    the terms of release were violated, additional treatment is necessary, or
    the community is no longer safe with the person in conditional release.
    Ariz. Rev. Stat. Ann. § 36–3713(C).
    The court noted
    when the issue is revocation of a conditional release, the
    burden of proof is lower, and the liberty interests Sanchez
    cites are not implicated because the state has already met
    the greater burden in establishing his continuing status as
    an SVP.
    Pima 
    Cty., 352 P.3d at 924
    . The court ultimately found that Sanchez did
    not meet his burden of demonstrating that the lower standard of
    evidence in the revocation statute was unconstitutional. 
    Id. In Washington,
    Wrathall was civilly committed as an SVP and
    placed in total confinement at a facility on McNeil Island. In re Det. of
    Wrathall, 
    232 P.3d 569
    , 570 (Wash. Ct. App. 2010).       The court later
    placed Wrathall into a less restrictive alternative (LRA) at the secure
    treatment facility on the island. 
    Id. Following his
    noncompliance with
    treatment and behavioral requirements at the facility, Wrathall’s LRA
    was revoked.   
    Id. The next
    year, he was again granted an LRA and
    returned to the treatment facility. 
    Id. After a
    number of years at the
    facility, the director was concerned that Wrathall was not making
    23
    treatment progress, so the state moved to modify the conditional release
    order to substitute a different sex offender treatment provider. 
    Id. The district
    court granted the order and Wrathall began seeing a new
    treatment provider at the facility. 
    Id. During his
    treatment sessions with
    the new provider, Wrathall informed her that he disliked being told what
    to do and if he were unconditionally released to the community, he would
    “maybe” molest a minor because the rules of his release would tell him
    not to. 
    Id. He also
    told his treatment provider that the way he would
    control his mood would be to consume beer, hard alcohol, or drugs, but
    if those substances did not work, he would “look for a kid.”       
    Id. His treatment
    provider reported that Wrathall’s behavior indicated he was
    not willing to participate in treatment and that he was not ready to
    transition into the community.        
    Id. She recommended
    that his LRA
    status be removed and that the district court transfer him back to the
    secure confinement facility.    
    Id. The state
    filed a petition to revoke
    Wrathall’s LRA, which the district court granted. 
    Id. at 571.
    Wrathall
    appealed and argued that the revocation of his conditional release
    violated his due process rights because the court did not make a finding
    that his violations were willful before sending him back to secure
    confinement. 
    Id. Like Iowa
    and Arizona, Washington’s revocation statute requires a
    different standard of proof when the district court makes a determination
    of whether a violation of conditional release occurred. Wash. Rev. Code
    Ann. § 71.09.098(5)(c) (West, Westlaw current through 2016 Reg. & First
    Spec. Sess.). The state need only demonstrate by a preponderance of the
    evidence that the committed person violated the terms of conditional
    release or that the committed person needs additional care, monitoring,
    supervision, or treatment.     
    Id. The state
    alleged both prongs in its
    24
    petition to revoke Wrathall’s LRA. 
    Wrathall, 232 P.3d at 571
    . If the court
    determines the state has met its burden, it may then modify the terms of
    the conditional release or send the committed person back to the total
    confinement facility. Wash. Rev. Code Ann. § 71.09.098(7), (8).
    The Washington court held that the due process clause does not
    require the district court to find that a violation is willful before sending a
    committed person to total confinement under the Washington statute.
    
    Wrathall, 232 P.3d at 572
    . The court held
    the State’s interest in “protecting society, particularly
    minors, from a person convicted of raping a child” was
    rationally served by imposing stringent conditions and
    greatly outweighed the offender’s interest in being punished
    only for willful conduct, especially given that the offender’s
    rights are already diminished because of his conviction for a
    sex offense.
    
    Id. (quoting State
    v. McCormick, 
    213 P.3d 32
    , 38 (Wash. 2009) (en banc)).
    Although the McCormick case dealt with the revocation of a suspended
    sentence   under    the   Washington       special   sex   offender   sentencing
    alternative, the court of appeals extended the rationale to the sexually
    violent predator statutes. 
    Id. The court
    held that due process did not
    require the court to find the violation was willful under the statute when
    the violation itself created a threat to society. 
    Id. However, some
    courts do require the state to demonstrate the
    likelihood of reoffending in order to recommit an individual who has
    violated the terms of conditional release or conditional discharge. See,
    e.g., In re Civil Commitment of E.D., 
    874 A.2d 1075
    , 1076–77 (N.J. 2005).
    The New Jersey Supreme Court held that due process requires the state
    to demonstrate by clear and convincing evidence that an individual
    continues to be an SVP and that they are likely to reoffend if not
    25
    recommitted. 
    Id. at 1083.
    This is the same standard required to civilly
    commit an individual as a sex offender in the state. 
    Id. The Supreme
    Judicial Court of Massachusetts found that the
    legislature intended the district courts to have the power to recommit
    individuals for breaching the terms of conditional release.              See
    Commonwealth v. Travis, 
    361 N.E.2d 394
    , 399 (Mass. 1977). However,
    the court also held that the court would need to find that the person was
    sexually dangerous to order recommitment.         
    Id. (“[T]he recommitment
    intended by the Legislature appears to be recommitment under the terms
    of the original commitment, which would necessarily entail a vacation of
    the prior finding that the individual was no longer sexually dangerous
    . . . .”).
    C. Substantive Due Process as Applied to Anderson. After the
    district court determined Anderson violated the terms of his release plan,
    the district court ordered his confinement at CCUSO’s transitional
    release program.      Anderson argues that confining him to CCUSO’s
    transitional release program violated his substantive due process rights
    because it is not narrowly tailored to his treatment needs and does not
    bear a substantial relationship to either his liberty interests or the public
    safety interests of the community. He also argues that it was a general
    or blanket restriction, and the district court did not properly balance the
    community interests of having him confined with his liberty interests.
    When we determine whether the State has violated substantive due
    process, we weigh the individual’s liberty interest against the State’s
    reason for the restraint on that individual’s liberty. 
    Matlock, 860 N.W.2d at 904
    . In Matlock, we noted that
    [d]ue process requires the court to properly balance the
    interest of the community against the liberty interest of a
    person suffering from a mental abnormality who is not likely
    26
    to engage in acts of sexual violence upon release. To do this,
    the district court must strike the proper balance between the
    treatment needs of a person released with supervision and
    the protection of the public.
    
    Id. at 907
    (citation omitted).
    In the district court’s order revoking Anderson’s release with
    supervision plan, the district court found, and Anderson acknowledged,
    that he had violated the terms of his release plan by having sex without
    prior approval and by having sex with an inappropriate partner.        The
    district court further found Anderson’s testimony that the eighteen-year-
    old sexual partner was the instigator not credible. It found credible the
    testimony of Dr. Tatman that Anderson was manipulative, that his choice
    in a partner was of an underlying sexual nature, and that his behavior
    was part of a cycle of his past sexual offenses. The district court also
    gave credit to Dr. Tatman’s testimony that Anderson was at a higher risk
    at the time of the violation and hearing than he was at the time of the
    jury trial.   The district court also noted that confinement in secure
    custody was not appropriate because Dr. Tatman was unable to say
    whether Anderson was more likely than not to reoffend. Ultimately, the
    district court determined the transitional release program was most
    appropriate because Anderson needed the skills and treatment available
    to him in the program.
    While the district court did not expressly balance the community
    interests with Anderson’s liberty interest, it did engage in a balancing
    analysis. The district court weighed Anderson’s liberty interest when it
    considered whether secure custody or the transitional release program
    was appropriate based on his prior behavior and current violation. The
    district court had three options of placement before it—return to release
    with supervision, place in the transitional release program, or order to
    27
    secure confinement—and it chose to send Anderson to the transitional
    release program based on the obvious need for additional treatment and
    the supervision available at the facility. The district court had the option
    of returning Anderson to the release-with-supervision status at the Fort
    Des Moines facility instead of the transitional release program. However,
    because of his choice of an inappropriate partner, the sexual nature of
    the violation, Anderson’s lack of credibility, and the credible testimony of
    Dr. Tatman, the district court determined the programming available at
    the transitional release program was better suited to Anderson’s needs
    and the protection of the public.
    In its order, the district court expressly considered Anderson’s
    treatment needs. It noted that the jury’s verdict resulted in Anderson
    “skipping over the transitional release program, and intermediate level of
    custody between secure confinement and community placement.”            The
    district court found that Anderson needs the treatment available at the
    transitional release program that is not available on release with
    supervision at the Fort Des Moines facility. At least part of the reason
    the district court ordered Anderson to the transitional release program
    was because it believed Anderson needed treatment focused on positive
    relationship skills, which directly relates to the conduct that Anderson
    engaged in when violating the terms of his release with supervision.
    The district court also considered whether modifying Anderson’s
    release-with-supervision plan or sending him back to secure custody
    were appropriate before concluding that the transitional release program
    was most suited to his needs. The district court noted that two of the
    therapists who offered opinions believed Anderson should remain in
    release with supervision.     However, the district court found more
    persuasive the concern that his violation was sexual in nature and
    28
    indicated the need for building positive relationship skills. The district
    court also noted that secure confinement was not appropriate in
    Anderson’s case because none of the therapists opined that he was more
    likely than not to reoffend.
    Likewise, the court considered Anderson’s liberty interest in its
    order. There is nothing in the statute that requires the State, as part of
    the revocation of the release with supervision status, to again prove that
    a person is more likely to sexually reoffend before they can be subject to
    greater supervision or placed in the transitional release program.      See
    Iowa Code § 229A.9B. The district court order transferring Anderson to
    the transitional release program expressly provides that his progress
    shall be reviewed one year following the order and be made in accordance
    with the provisions of Iowa Code section 229A.8. Anderson has retained
    all the due process rights afforded all civilly committed persons to annual
    evaluations and annual reviews. See 
    id. § 229A.8.
    The district court also considered the risk to the public of
    returning Anderson to release with supervision at the Fort Des Moines
    facility. Anderson engaged in sexual conduct without permission. When
    a committed person violates the terms of a release plan, it can result in a
    heightened danger to the public. This is why when there is an allegation
    that a violation has occurred, the agency with jurisdiction has the
    immediate ability to request an emergency ex parte order transferring the
    committed person to a secure facility. 
    Id. § 229A.9B(1).
    The committed
    individual is then brought before the district court to determine whether
    the violation occurred.        
    Id. § 229A.9B(3)–(4).
      If the district court
    determines that a violation has occurred, then the district court has the
    discretion to determine what level of release, transitional programming,
    or commitment is necessary based on the type and severity of the
    29
    violation. 
    Id. § 229A.9B(3),
    (5). Additionally, when a committed person
    violates the terms of a release plan, this indicates that they may no
    longer be participating in the ongoing treatment anticipated by the
    release plan that is intended to reintegrate them into society. This is of
    particular concern when the violation is a sexual offense, as in
    Anderson’s case.   Further, Anderson’s sexual partner was one that he
    would not have been granted permission to engage in sexual activity with
    because his choice of a young and vulnerable partner was part of his
    sexual offense cycle.    Additionally, the Fort Des Moines facility never
    grants permission for sexual relationships between two participants in
    the release-with-supervision program.
    The district court properly weighed the State’s reasons for
    additional restraint with Anderson’s liberty interests. We find the
    reasoning utilized by the courts in Arizona and Washington persuasive.
    We conclude that, in the revocation context, the State needs to prove by
    a preponderance of the evidence that the conditionally released person
    violated the terms of release, that additional treatment is necessary, and
    the community is no longer safe with the person in release with
    supervision.   The district court in this case properly balanced each of
    these competing factors and reached an appropriate decision regarding
    the level of supervision and control.      After this balancing, the district
    court decided on a statutorily allowed option.
    It is important to emphasize the two primary factors that inform
    our decision in this case. First, the district court only substituted one
    form of conditional release—the transitional release program located at
    CCUSO—for      another    form   of    conditional   release—release    with
    supervision. This was based on what the district court found to be the
    obvious need for greater treatment and supervision that could be
    30
    provided at the transitional release program at CCUSO.                    Most
    importantly, the district court did not order Anderson back to a secure
    facility.   If that had occurred, it might be necessary to revisit the
    substantive due process argument as applied to Anderson. But that will
    have to wait for another case.        Under the facts here, we find that the
    district court order did not violate Anderson’s substantive due process
    rights.
    D. Procedural Due Process. We must also determine whether the
    statute violated Anderson’s right to procedural due process.          We have
    adopted the three-part test set forth by the Supreme Court in Mathews v.
    Eldridge, 
    424 U.S. 319
    , 335, 
    96 S. Ct. 893
    , 903, (1976), to determine the
    process due to an individual deprived of a protected liberty interest. See
    State ex rel. Hamilton v. Snodgrass, 
    325 N.W.2d 740
    , 742 (Iowa 1982)
    (adopting and implementing the Mathews balancing test).              The three
    factors from the Mathews test that a court must consider in a procedural
    due process analysis are
    (1) “the private interest that will be affected by the official
    action;” (2) “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 (3) “the Government’s interest, including
    the function involved and the fiscal and administrative
    burdens that the additional or substitute procedural
    requirement would entail.”
    Swanson v. Civil Commitment Unit for Sex Offenders, 
    737 N.W.2d 300
    ,
    308 (Iowa 2007) (quoting 
    Mathews, 424 U.S. at 335
    , 96 S. Ct. at 903).
    We have previously found that there is “no constitutional bar to the
    civil   confinement   of   sexually    violent   predators   with   untreatable
    conditions when confinement is necessary to protect the public.”            
    Id. (quoting In
    re Det. of Darling, 
    712 N.W.2d 98
    , 101 (Iowa 2006)). However,
    31
    those individuals do retain a liberty interest in the requirements and
    procedures contained in chapter 229A. 
    Id. We must
    analyze the three Mathews factors as applied to
    Anderson. The first factor is “the private interest that will be affected by
    the official action.”   
    Mathews, 424 U.S. at 335
    , 96 S. Ct. at 903.
    Anderson has a private interest in his own personal liberty. His transfer
    to the transitional release program at CCUSO curtails his freedom
    because he had the ability to leave the Fort Des Moines facility without a
    chaperone. While Anderson is allowed access to the community while he
    remains in the transitional release program, it is at the sole discretion of
    staff and with an escort.
    The second factor is “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.”      
    Id. The risk
    of an
    erroneous deprivation of due process with the safeguards contained in
    Iowa Code section 229A.9B is low. Section 229A.9B provides safeguards
    before the district court is allowed to modify the terms of a committed
    person’s release with supervision. See Iowa Code § 229A.9B. The court
    must hold a hearing and find that the State proved by a preponderance
    of evidence a violation has occurred. 
    Id. § 229A.9B(4).
    The court then
    has the ability to weigh different options and determine which is best
    based on the violation that occurred. 
    Id. § 229A.9B(5).
    The final factor that must be considered is “the Government’s
    interest, including the function involved and the fiscal and administrative
    burdens that the additional or substitute procedural requirement would
    entail.” 
    Mathews, 424 U.S. at 335
    , 96 S. Ct. at 903. The State’s interest
    in allowing the court to modify or heighten restrictions after a committed
    person violates the terms of their release with supervision is high. The
    32
    State has an interest in protecting the general public from sexually
    violent persons and that includes an interest in monitoring behavior and
    risk factors while those persons are on release with supervision. Here,
    Anderson’s violation was connected to his cycle of offending. It was a
    sexual     offense,   demonstrated       planning,   and   Anderson   took   no
    responsibility for the encounter.
    Anderson’s right to procedural due process was not violated when
    the district court found he violated the terms of his release with
    supervision and ordered him placed in the transitional release program
    at CCUSO.
    IV. Conclusion.
    The     district   court   order    revoking   Anderson’s   release-with-
    supervision status and placing him at the transitional release program at
    CCUSO did not violate his substantive or procedural due process rights
    under either the United States Constitution or the Iowa Constitution.
    Accordingly, we affirm the decision of the district court.
    AFFIRMED.
    All justices concur except Wiggins, Hecht and Appel, JJ., who
    dissent.
    33
    #15–2122, In re Det. of Anderson
    WIGGINS, Justice (dissenting).
    I disagree with the majority’s conclusion that under the findings
    made by the district court it had the statutory or constitutional authority
    to place Jeffrey Anderson in the transitional release program under Iowa
    Code chapter 229A (2016).
    I. Absence of Statutory Authority.
    Chapter 229A contains the Code provisions concerning civil
    commitment of sexually violent predators. The legislature included the
    transitional release program as part of its civil commitment of sexually
    violent predators. Iowa Code § 229A.8A. Transitional release is the last
    phase of treatment for persons committed to the civil commitment unit
    for sexual offenders (CCUSO). We have previously found the transitional
    release program is the fifth phase of treatment while committed at
    CCUSO. See Swanson v. Civil Commitment Unit for Sex Offenders, 
    737 N.W.2d 300
    , 303 (Iowa 2007); see also Iowa Code § 229A.8A (stating the
    requirements for a person to be moved to transitional release).
    Although section 229A.9B(5) authorizes a judge to place a person
    who violates the terms of his or her release with supervision in the
    transitional release program, a judge must make specific findings before
    doing so. The first finding a court must make to place a person in the
    transitional release program at CCUSO is that “[t]he committed person’s
    mental abnormality is no longer such that the person is a high risk to
    reoffend.” Iowa Code § 229A.8A(2)(a). Implicit in this finding is that the
    person is still likely to reoffend, but at a lower risk than at the time the
    person was originally committed to CCUSO.         The district court never
    made that finding in this case.
    34
    Once a court makes an initial finding under section 229A.8A(2)(a),
    the statute requires the court to make the following additional findings in
    order for a court to commit a person to the transitional release program:
    b. The committed person has achieved and
    demonstrated significant insights into the person’s sex
    offending cycle.
    c. The committed person has accepted responsibility
    for past behavior and understands the impact sexually
    violent crimes have upon a victim.
    d. A detailed relapse prevention plan has been
    developed and accepted by the treatment provider which is
    appropriate for the committed person’s mental abnormality
    and sex offending history.
    e. No major discipline reports have been issued for the
    committed person for a period of six months.
    f. The committed person is not likely to escape or
    attempt to escape custody pursuant to section 229A.5B.
    g. The committed person is not likely to engage in
    predatory acts constituting sexually violent offenses while in
    the program.
    h. The placement is in the best interest of the
    committed person.
    
    Id. § 229A.8A(2).
       In this case, the district court never made these
    findings before committing Anderson to the transitional release program.
    Without these findings for commitment to the transitional release
    program, the court could order Anderson returned to release with or
    without supervision.    In the alternative, the court could order him to
    confinement in a secure facility at CCUSO after making the necessary
    findings to do so. See 
    id. §§ 229A.2,
    .7, .9B(5).
    II. Absence of Constitutional Authority.
    In a previous decision, we outlined the requirements of substantive
    due process when a person’s liberty is at stake. There we said,
    35
    Substantive due process prohibits the State from engaging in
    arbitrary or wrongful acts “ ‘regardless of the fairness of the
    procedures used to implement them.’ ” At the core of the
    liberty protected by the Due Process Clause is a person’s
    interest to be free from bodily restraint by arbitrary
    government actions. However, this liberty interest is not
    absolute.
    In re Det. of Matlock, 
    860 N.W.2d 898
    , 903 (Iowa 2015) (citation omitted)
    (quoting Zinermon v. Burch, 
    494 U.S. 113
    , 125, 
    110 S. Ct. 975
    , 983
    (1990)). In order to determine whether the State has violated a person’s
    substantive due process, we must weigh the person’s liberty interest
    against the State’s asserted reason for restraining that person’s liberty.
    
    Id. at 904.
    In the case of a commitment of a sexually violent predator to a
    secure facility like CCUSO, the United States Supreme Court and our
    court have found the State can confine a sexually violent predator civilly
    for treatment as long as a person with a mental abnormality finds “it
    difficult, if not impossible, for the person to control his dangerous
    behavior.”    In re Det. of Garren, 
    620 N.W.2d 275
    , 284 (Iowa 2000)
    (quoting Kansas v. Hendricks, 
    521 U.S. 346
    , 358, 
    117 S. Ct. 2072
    , 2080
    (1997)). Our legislature has complied with this standard by defining a
    sexually violent predator as
    a person who has been convicted of or charged with a
    sexually violent offense and who suffers from a mental
    abnormality which makes the person likely to engage in
    predatory acts constituting sexually violent offenses, if not
    confined in a secure facility.
    Iowa Code § 229A.2(12).
    We have also discussed the substantive due process rights of a
    person who the court releases from a civil commitment with supervision.
    See 
    Matlock, 860 N.W.2d at 904
    –08. A person can be released from a
    civil commitment as a sexually violent predator if the State cannot show
    36
    that the committed “person’s mental abnormality remains such that the
    person is likely to engage in predatory acts that constitute sexually
    violent offenses if discharged.”   Iowa Code § 229A.8(6)(d)(1).   In this
    situation, the court can release a person with or without supervision. 
    Id. § 229A.9A.
         When released, the previously committed person is not
    under a civil commitment, but only subject to outpatient conditions that
    “bear a substantial relation to the interests of the individual and the
    community.” 
    Matlock, 860 N.W.2d at 908
    .
    In this case, the State released Anderson with supervision, and he
    violated the conditions the court placed on him while released with
    supervision.     We now must determine if the court violated his
    substantive due process rights when the court recommitted him to
    CCUSO’s transitional program under chapter 229A of the Code.
    The majority uses a Matlock due process analysis to find the
    district court order returning Anderson to CCUSO’s transitional release
    program did not violate his due process rights.    In Matlock, the court
    released Matlock with supervision from the transitional release program
    at CCUSO because the court found that although he still suffered from a
    mental abnormality, he was not likely to engage in acts of sexual violence
    upon release.    
    Id. at 900.
      The Matlock due process analysis is less
    stringent than the Hendricks–Garren due process analysis because
    Matlock was no longer committed to the transitional release program at
    CCUSO. Rather, the court released him from CCUSO with supervision.
    In situations where the person is no longer committed to CCUSO, due
    process only requires us “to properly balance the interest of the
    community against the liberty interest of a person suffering from a
    mental abnormality who is not likely to engage in acts of sexual violence
    upon release.” 
    Id. 37 On
    the other hand, due process for persons committed to CCUSO
    can only be satisfied if
    [t]he precommitment requirement of a “mental abnormality”
    or “personality disorder” is consistent with the requirements
    of these other statutes that we have upheld in that it
    narrows the class of persons eligible for confinement to those
    who are unable to control their dangerousness.
    
    Hendricks, 521 U.S. at 358
    , 117 S. Ct. at 2080.              The flaw in the
    majority’s reasoning is that it fails to acknowledge sending Anderson to
    the transitional release program at CCUSO is recommitting him to the
    CCUSO.      The majority is wrong and without any legal authority to
    support its conclusion that “the district court only substituted one form
    of conditional release—the transitional release program located at
    CCUSO—for       another    form   of    conditional    release—release    with
    supervision.”
    Other states faced with this same situation have agreed with my
    analysis.    In New Jersey, before a court can recommit a person for
    violating a conditional release, the court must find the person is
    dangerous because he or she is highly likely to reoffend.           In re Civil
    Commitment of E.D., 
    874 A.2d 1075
    , 1076–77 (N.J. 2005). The Supreme
    Judicial    Court   of   Massachusetts      reached   the   same   conclusion.
    Commonwealth v. Travis, 
    361 N.E.2d 394
    , 399 (Mass. 1977).
    The Arizona and Washington appellate court decisions cited by the
    majority do not support a conclusion that the court need not afford the
    Hendricks–Garren due process analysis when it recommits a person to
    CCUSO. The Arizona court of appeals required a finding that before a
    court could return a person on conditional release to confinement, the
    state had to prove that the person was dangerous. In re Pima Cty. Mental
    Health Cause No. A20020026, 
    352 P.3d 921
    , 924 (Ariz. Ct. App. 2015).
    38
    In Pima County, the court only held the state could prove dangerousness
    by a preponderance of evidence, rather than by the higher standard of
    beyond a reasonable doubt because a conditional release under Arizona
    law is not a release from the commitment. 
    Id. The Washington
    appellate court only dealt with whether the state
    had to prove a willful violation in order to remove a civilly committed sex
    offender from a less restrictive alternative to commitment. In re Det. of
    Wrathall, 
    232 P.3d 569
    , 569 (Wash. Ct. App. 2010). It held the state did
    not have to prove a willful violation. 
    Id. at 572.
    Notably, in affirming the
    offender’s recommitment, the court found the offender acknowledged he
    posed a danger to society. 
    Id. Thus, the
    Arizona and Washington appellate court decisions relied
    upon by the majority address the standard of proof required for
    recommitment, not the due process analysis required. The majority cites
    no authority allowing a court to recommit Anderson to CCUSO’s
    transitional release program without a Hendricks–Garren due process
    analysis. Because the district court did not make the proper Hendricks–
    Garren due process findings, I would remand the case to the district
    court to determine the proper placement of Anderson, requiring the court
    to give due consideration to the statutory and due process requirements
    that must be afforded to him.
    Hecht and Appel, JJ., join this dissent.