In The Matter Of S.p., Alleged To Be A Chronic Substance Abuser, S.p. , 2006 Iowa Sup. LEXIS 81 ( 2006 )

IN THE SUPREME COURT OF IOWA
No. 49 / 05-0980
Filed June 9, 2006
IN THE MATTER OF S.P.,
Alleged to Be a Chronic
Substance Abuser,
S.P.,
Appellant.
________________________________________________________________________
Appeal from the Iowa District Court for Dubuque County,
Lawrence Fautsch, Judge.
Person subject to commitment order appeals, claiming her
procedural due process rights were violated. REVERSED.
Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for
appellant.
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STREIT, Justice.
Even though the court interceded with an effort at finding the
truth, it improperly adopted an adversarial role in the proceedings. S.P.
appeals from the district court order finding she was a chronic substance
abuser and placing her in a residential treatment facility. She contends
her due process rights were violated because the referee and district
court judge took adversarial roles in the proceedings, and because the
district court ordered her attorney to subpoena witnesses adverse to her
interests. She also claims the court erred in finding she met the
statutory definition of a chronic substance abuser. Because we find the
district court assumed an adversarial role in the proceeding, we reverse
the decision of the district court and do not address S.P.’s other
arguments.
I. Background Facts and Proceedings
S.P. is a forty-five year old female with serious health problems.
She has had one heart attack and suffers from coronary artery disease,
hypertension, diabetes, and obesity. She also suffers from severe
respiratory problems that make her dependent on oxygen. On March 15,
2005, her brother and sister-in-law (hereinafter “applicants”) filed an
application under Iowa Code section 125.75 (2005) alleging S.P. was a
chronic substance abuser who needed to be taken into immediate
custody for her cocaine addiction. A substance abuse commitment
hearing was held before a hospitalization referee on March 18, 2005.
The applicants were not represented by counsel at the hearing, and no
member of the Dubuque County Attorney’s office attended the hearing.
The referee questioned the two applicants and the examining physician.
S.P.’s attorney cross-examined each witness. S.P. also testified, but was
not cross-examined by the referee. At the end of testimony, the
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hospitalization referee found that S.P. met the criteria for chronic
substance abuse with a crack cocaine addiction. The referee ordered
that she reside at the Julien Care Facility for complete evaluation and
appropriate treatment.
S.P. appealed the referee’s decision to the district court. At the
district court hearing, S.P. demanded a “trial de novo” pursuant to Iowa
Code section 229.21(3)(c), instead of a review based upon the transcripts
of the referee’s hearing. 1 The district court judge ordered that a new
hearing be scheduled so that the witnesses could be re-examined.
At the start of the second hearing, S.P.’s attorney objected and
made a motion to dismiss based on the fact that there was no one to
“prosecute” the case. The judge denied this motion. The district court
judge proceeded to question the two applicants and, via telephone, the
examining physician who had testified at the hearing before the
hospitalization referee. S.P.’s attorney cross-examined each witness.
S.P. also testified, but was not cross-examined by the judge. On May 10,
2005, the court issued an order affirming the ruling of the hospitalization
referee.
1An order of a magistrate or judicial hospitalization referee finding that a person
is a chronic substance abuser may be appealed to the district court. Iowa Code
§ 229.21. “When appealed, the matter shall stand for trial de novo,” and the court shall
schedule the hearing before a district judge at the earliest practicable time. Id.
§ 229.21(3)(c).
There are significant differences between a “trial de novo” and a “de novo
review.” See In re Huston, 263 N.W.2d 697, 699 (Iowa 1978). Generally, in a “de novo
review” proceeding, the reviewing court is restricted to the record made in the lower
tribunal. Sieg v. Civil Serv. Comm’n, 342 N.W.2d 824, 828 (Iowa 1983); Mason v. World
War II Serv. Comp. Bd., 243 Iowa 341, 344, 51 N.W.2d 432, 434 (1952). On the other
hand, “in a trial de novo, the court hearing the case anew is permitted to receive
evidence additional to that presented” in the earlier hearing. Dolan v. Civil Serv.
Comm’n, 634 N.W.2d 657, 662 (Iowa 2001); Mason, 243 Iowa at 344-45, 51 N.W.2d at
434. Therefore, a statute providing for a “trial de novo” in the district court
contemplates a trial in the general meaning of the term, not merely a review of the
agency proceeding. Dolan, 634 N.W.2d at 662.
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S.P. appeals, contending her right to due process was violated
because the referee and district court judge became the applicants’
attorneys and presented evidence in their stead. No person or party has
filed a brief opposing this appeal.
In June of 2005, S.P.’s commitment was changed from inpatient to
outpatient status. S.P. soon suffered a relapse, and a new hearing was
held before a hospitalization referee on July 11, 2005. Once again, a
referee concluded S.P. was a chronic substance abuser and ordered her
back to inpatient status. This appeal concerns only the May 10, 2005
initial commitment order.
II. Mootness
An appeal “ ‘is moot if it no longer presents a justiciable
controversy because [the contested issue] has become academic or
nonexistent.’ ” In re D.C.V., 569 N.W.2d 489, 494 (Iowa 1997) (quoting In
re Meek, 236 N.W.2d 284, 288 (Iowa 1975)). We do not decide cases
when there is no longer any actual controversy, unless we exercise our
discretion and decide the case under an exception to the mootness
doctrine. Rhiner v. State, 703 N.W.2d 174, 176-77 (Iowa 2005). The
factors we consider to determine whether we will review a moot action
are:
(1) the private or public nature of the issue; (2) the
desirability of an authoritative adjudication to guide public
officials in their future conduct; (3) the likelihood of the
recurrence of the issue; and (4) the likelihood the issue will
recur yet evade appellate review.
In re T.S., 705 N.W.2d 498, 502 (Iowa 2005) (citing State v. Hernandez-
Lopez, 639 N.W.2d 226, 234 (Iowa 2002)).
The conduct of the court in an involuntary civil commitment
hearing is of public importance. Because such hearings are a daily
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occurrence, questions about the proper procedures to be followed
when the applicant is not represented by counsel are likely to reoccur.
Also, given the time elements involved in processing an appeal, and the
strong probability that the commitment will not continue for the length of
the appeal process, such appeals will often be moot before the appeal can
be decided. In re M.T., 625 N.W.2d 702, 705 (Iowa 2001); see also Tyars
v. Finner, 709 F.2d 1274, 1280 (9th Cir. 1983) (holding court would
review case despite appellant’s discharge from hospital because
involuntary civil commitments “ ‘do not last long enough for complete
judicial review of the controversies they engender’ ” (quoting Super Tire
Eng’g Co. v. McCorkle, 416 U.S. 115, 126, 94 S. Ct. 1694, 1700, 40
L. Ed. 2d 1, 10 (1974))). Therefore, we exercise our discretion to reach
the merits of one issue raised in this appeal.
III. Merits
A. Standard of Review
A civil commitment requires due process because it constitutes a
significant deprivation of personal liberty. In re M.T., 625 N.W.2d at 706
(citing Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60
L. Ed. 2d 323, 330-31 (1979)). We review constitutional claims de novo.
In re Cubbage, 671 N.W.2d 442, 444 (Iowa 2003).
B. Procedural Process in a Civil Commitment Hearing
Chapter 125 of the Iowa Code addresses the issue of chemical
substance abuse. Under our statutory scheme, any interested person
may commence commitment proceedings by filing an application for the
involuntary commitment or treatment of an alleged chronic substance
abuser. Iowa Code § 125.75. Upon the filing of the application, the clerk
of court dockets the case and immediately notifies a district court judge,
a district associate judge, or magistrate who is admitted to the practice of
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law. Id. § 125.77. The court then schedules a hearing not less than
forty-eight hours after notice of the application is served upon the
respondent. Id. § 125.78(3)(a). If the applicant requests a court-
appointed attorney, the court is required to appoint one at the county’s
expense so long as it determines the applicant is financially unable to
employ an attorney and a court-appointed attorney “is necessary to
assist the applicant in a meaningful presentation of the evidence.” Id.
§ 125.78(2).
Section 125.82(4) sets forth the procedures for the commitment
hearing:
The respondent’s welfare is paramount, and the
hearing shall be tried as a civil matter and conducted in as
informal a manner as is consistent with orderly procedure.
Discovery as permitted under the Iowa rules of civil
procedure is available to the respondent. The court shall
receive all relevant and material evidence, but the court is
not bound by the rules of evidence. A presumption in favor of
the respondent exists, and the burden of evidence and
support of the contentions made in the application shall be
upon the person who filed the application. If upon completion
of the hearing the court finds that the contention that the
respondent is a chronic substance abuser has not been
sustained by clear and convincing evidence, the court shall
deny the application and terminate the proceeding.
(Emphasis added.)
In order to commit someone as a chronic substance abuser, the
referee or district court has to find by clear and convincing evidence that
the person:
a. Habitually lacks self control as to the use of chemical
substances to the extent that the person is likely to seriously
endanger the person’s health, or to physically injure the
person’s self or others, if allowed to remain at liberty without
treatment.
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b. Lacks sufficient judgment to make responsible decisions
with respect to the person’s hospitalization or treatment.
Id. § 125.2(4).
In the present case, the applicants completed a fill-in-the-blank
application form alleging chronic substance abuse. The applicants
signed the application and attached statements and affidavits
corroborating their allegations.
Upon reviewing the application, the district court judge issued an
order that S.P. be taken into immediate custody. The judge also
appointed counsel for S.P., ordered a physician to examine her, and set
the date and time for a commitment hearing before a hospitalization
referee.
The applicants did not hire an attorney to assist them at the
hearing. 2 Likewise, the Dubuque County Attorney’s office did not
participate in either hearing and did not present evidence on behalf of
the applicants. Not surprisingly, the co-applicants did not take an active
role at the hearing. They simply stood silent as the referee took charge of
the proceeding.
C. Were S.P.’s Procedural Due Process Rights Violated?
S.P. contends her right to due process was violated because the
district court judge took on an adversarial role when questioning the
witnesses, in effect becoming the applicants’ attorney and presenting
evidence in their stead. She argues her due process rights were violated
2The application form filled out by the applicants did not contain a box
requesting that the court appoint an attorney for the applicants. See Iowa Code
§ 125.78(2) (outlining procedures whereby an applicant can request the court to appoint
an attorney, at the county’s expense, for the applicant).
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because the nature and extent of the court’s questions rose to the
level of advocacy. 3
The issue of a referee taking on an adversarial role during an
involuntary commitment hearing was brought before this court in In re
R.P., 606 N.W.2d 15 (Iowa 2000). In R.P., the applicant was not
represented by counsel and the trier of fact examined the witnesses on
the applicant’s behalf. 606 N.W.2d at 15-16. Similar to the case at
hand, the respondent appealed the referee’s civil commitment finding to
this court, claiming he was denied due process because the referee took
on an adversarial role by questioning the witnesses. Id. at 16. We
disagreed, finding the respondent was not denied due process because
“the referee did not display any evidence of becoming an advocate by
such actions as extensive questioning, leading of the witness, or cross-
examination of the respondent.” Id. at 17.
The record in the present case simply does not display what
Edmund Burke described as “the cold neutrality of an impartial judge.”
See State v. Glanton, 231 N.W.2d 31, 35 (Iowa 1975). Instead, we have a
district court judge trying to elicit testimony that will support the
applicants’ burden of proof. While we empathize with the court’s strong
desire to aid the unrepresented applicants and do what is best for S.P., it
is, as we stated in State v. Glanton, “ordinarily a dangerous practice for a
presiding judge to contribute his efforts in an attempt to equalize what
he perceives to be disparity in the trial ability of opposing counsel.” Id.
Even though the court did not become a cheerleader or partisan for the
applicants, the court assumed an adversarial role in the process by
3Because the district court held a trial de novo in this case, we focus our
attention solely on the district court proceeding.
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picking and choosing which evidence would come in on behalf of
the applicants. 4 In the process of searching for such evidence, the court
marshaled the evidence towards the definition of a chronic substance
abuser. This focused questioning changed the court’s role from an
impartial decision-maker to an advocate.
We hold today that an analysis based solely upon the nature of the
questions asked by the referee or district court judge is not wholly
determinative of the issue of advocacy. We cannot provide the trial court
a cookbook of right or wrong questions, but merely observe that any
effective questioning will inevitably lead to the heart of the case. When
the court itself directs the case in this way it is marshaling or assembling
the evidence. Artfully crafted questions will not hide the court’s role in
the proceedings at that point—the role of deciding what evidence is
needed to prove the case and steering the case down that road.
R.P. exemplified the rare situation where witnesses, answering a
few open-ended questions with narrative testimony, were able to
articulate enough clear and convincing evidence to convince the court
that a civil commitment was necessary. But in many cases the
applicant’s narrative testimony, along with the unguided narrative
testimony of the examining physician, will be insufficient for a civil
commitment. In those situations the court is prohibited from assuming
the role of an advocate. As noted above, when the court takes an active
role by examining witnesses on the applicant’s behalf, it begins to take
on the attributes of an advocate. Therefore, when faced with pro se
4The authority of a judge to question witnesses is well established. See, e.g.,
Fed. R. Evid. 614(b); Iowa R. Evid. 5.614(b). “The authority is, of course, abused when
the judge abandons his proper role and assumes that of advocate.” Fed. R. Evid. 614
advisory committee’s note to subdivision b.
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applicants in a civil commitment proceeding, the referee or district
court is advised to either appoint an attorney at the county’s expense
under the guidelines of Iowa Code section 125.78(2) or warn the
applicant at the outset that the applicant will have to prove his or her
case without assistance from the court. 5
IV. Disposition
The trial court tried to do what was best for the health and well-
being of S.P. However, S.P. was denied due process when the court
became an advocate for the applicants. Although we reverse, we do not
remand for a new hearing since S.P. is no longer subject to the May 10,
2005 inpatient order. Any subsequent substance abuse commitment
orders pertaining to S.P. remain unchanged by this decision.
REVERSED.
5Of course, a third option would be for the county attorney to join in the
application as a co-applicant. See In re T.S., 705 N.W.2d at 504. Also, as of July 1,
2006, Iowa Code section 125.82 has been modified to provide “evidence in support of
the application may be presented by the applicant, or by an attorney for the applicant,
or by the county attorney.” 2006 Iowa Legis. Serv. S.F. 2362 (West) (emphasis added).