Wayne Atwood, Arthur Jennings, Daniel Bellman, And John Carmody, On Behalf Of Themselves And All Present And Future Iowa

IN THE SUPREME COURT OF IOWA
No. 125 / 05-0485
Filed December 29, 2006
WAYNE ATWOOD, ARTHUR JENNINGS,
DANIEL BELLMAN, and JOHN CARMODY,
on behalf of themselves and all present
and future Iowa Code Chapter 229A pretrial
detainees, and LOREN G. HUSS, JR., JOHN
HENRY NACHTIGALL, TIMOTHY GUSMAN
and LANNY TAUTE, on behalf of themselves
and those similarly situated,
Plaintiffs,
vs.
THE HONORABLE THOMAS J. VILSACK, et al.,
Defendants.
Certified questions of law from the United States District Court for the
Southern District of Iowa, Robert W. Pratt, Judge.
Pre-trial detainees awaiting trial on sexually violent predator petitions
brought a class action in the United States District Court for the Southern
District of Iowa against the Iowa Department of Corrections and others.
The federal court certified a legal question to this court. CERTIFIED
QUESTION ANSWERED.
Randall C. Wilson of the Iowa Civil Liberties Union Foundation, Des
Moines, and Jon M. Kinnamon of Kinnamon, Kinnamon, Russo, Meyer &
Keegan, Cedar Rapids, for plaintiffs.
Thomas J. Miller, Attorney General, Gordon E. Allen, Deputy Attorney
General, and Mark Hunacek, Assistant Attorney General, for defendants.
2
HECHT, Justice.
The United States District Court for the Southern District of Iowa has
certified to us the following question: Are pre-trial detainees being held
pursuant to Iowa Code chapter 229A (2005) entitled to bail under either the
common law or the Iowa Constitution?
I. Background Facts and Proceedings.
The petitioners are a certified class consisting of “ ‘[a]ll present and
future pretrial detainees held by the Iowa Department of Corrections,
awaiting hearing on their Iowa Code [c]hapter 229A petition, or who were
committed pursuant to Iowa Code [c]hapter 229A.’ ” Atwood v. Vilsack, 338
F. Supp. 2d 985, 990 (S.D. Iowa 2004). They filed suit in the United States
District Court for the Southern District of Iowa against the State of Iowa’s
departments and officials responsible for implementing the pre-trial
detention provisions of Iowa Code chapter 229A, the Sexually Violent
Predator (SVP) Act. Id. at 990-91. The petitioners claimed: (1) the State’s
failure to initiate SVP proceedings until immediately prior to the discharge
of criminal sentences violated their federal right to a speedy trial and right
to be free from imposition of double jeopardy, (2) pre-trial detention was in
contravention of chapter 229A, (3) pre-trial detention violated their federal
and state due process rights to bail, (4) pre-trial detention violated their
rights under the Americans with Disabilities Act (ADA), and (5) the
conditions of their detention violated their federal due process rights. Id. at
993-1008. The court certified the question of state law to us. Id. at 1008.
Petitioners urge us to hold the common law entitles detainees to bail
during the pre-trial stage of proceedings brought under chapter 229A. They
also assert numerous provisions of the Iowa Constitution entitle them to
bail during that stage: article 1, section 12 (bail guarantee clause); article
3
1, section 17 (proscribing excessive bail); article 1, section 9 (due process of
law); article 1, section 10 (rights of persons accused); article 1, section 21
(banning bills of attainder); article 1, section 8 (protecting personal
security); article 1, section 1 (inalienable rights clause); and article 1,
section 25 (unenumerated rights clause). For the reasons that follow, we
conclude persons detained before trial pursuant to Iowa Code chapter 229A
are not entitled to bail under either the common law or under these
provisions of the Iowa Constitution.
II. Discussion.
A. Common Law Bail Claim.
We have previously acknowledged that although not expressly
declared by our statutes or constitution to be part of Iowa law, “the common
law has always been . . . in force in Iowa.” Iowa Civil Liberties Union v.
Critelli, 244 N.W.2d 564, 568 (Iowa 1976). The petitioners claim a common
law right to bail in the interim between the Iowa district court’s finding of
probable cause to believe they are sexually violent predators 1 and the
subsequent trials to determine whether they are, in fact, sexually violent
predators. They cite Blackstone for the proposition that at common law all
defendants in civil cases were bailable. See William Blackstone, 4
Commentaries 294 (1769). Because we are not persuaded, however, that
the common law authorized civil commitment of sexually violent predators
for long-term care and treatment, any reference in Blackstone’s
1 Iowa Code section 229A.5(1) requires the district court, upon the filing of a petition
alleging a person is a SVP, to make a preliminary determination of whether the State has
shown probable cause to believe the person is a SVP. If the court preliminarily finds
probable cause to believe the person is a SVP, the person shall be taken into custody. Id.
The detainee is thereafter entitled to a probable cause hearing. Iowa Code § 229A.5(2). If
the court finds probable cause to believe the detainee is a SVP, the detainee is entitled to a
trial to determine whether the detainee is, in fact, a SVP. See id. § 229A.7(2).
 4
Commentaries to the availability of bail in all civil cases does not suggest a
right to bail in the type of case now before us.
Furthermore, any common law claim of entitlement to pre-trial bail in
a civil case of this type could not have survived our legislature’s enactment
of chapter 229A. The common law may be repealed by implication in a
statute that plainly expresses the legislature’s intent to do so. Critelli, 244
N.W.2d at 568; Wilson v. Iowa City, 165 N.W.2d 813, 822 (Iowa 1969). Our
consideration of whether the legislature intended to prohibit bail at the pre-
trial stage in SVP cases begins with the words of the statute.
The subject of bail is expressly addressed in only one section of the
statute. Section 229A.5C(1) provides that persons who commit a public
offense while detained pursuant to section 229A.5 or while subject to an
order of civil commitment shall not be eligible for bail pursuant to section
811.1. 2 The petitioners urge us to interpret section 229A.5C(1) as an
expression of the legislature’s intent that detainees who have not committed
a subsequent offense while detained or committed should be entitled to bail.
We must reject the petitioners’ suggested interpretation of the statute,
however, because we conclude section 229A.5C(1) has no application to this
case. That section is intended to preclude access to bail in the criminal case
filed as a consequence of a new offense committed by a person detained or
subject to a civil commitment order. The petitioners in this case claim
entitlement to bail in their civil SVP proceedings. See In re Bradford, 712
N.W.2d 144, 146-47 (Iowa 2006) (holding that the proceedings under the
SVP Act are civil); In re Det. of Garren, 620 N.W.2d 275, 283-86 (Iowa 2000)
(same).
2 Section 811.1 provides that “[a]ll defendants are bailable both before and after
conviction, by sufficient surety, or subject to release upon condition or on their own
recognizance,” except for defendants in certain criminal cases.
5
Although chapter 229A does not expressly prohibit bail at the pre-
trial stage in SVP cases, neither does it expressly authorize bail in such
cases. Nonetheless, we discern from the way in which chapter 229A
narrowly circumscribes release of detainees the legislature’s clear intention
to deny bail at the pre-trial stage in SVP proceedings. The only instance in
which the release of a detainee is authorized before commitment to a secure
facility is when, after a hearing, the district court does not find probable
cause to believe the detainee is a SVP. 3 In that event, the detainee is not
held over for trial and has no need for bail.
The only other detainees who may be released in SVP cases are those
who qualify for discharge pursuant to section 229A.5B(1), which in turn
authorizes the discharge of detainees under sections 229A.8 or 229A.10.
See Iowa Code § 229A.5B(1). Section 229A.5B(1) provides:
A person who is detained pursuant to section 229A.5 or is
subject to an order of civil commitment under this chapter
shall remain in custody unless released by court order or
discharged under section 229A.8 or 229A.10. A person who
has been placed in a transitional release program or who is
under release with or without supervision is considered to be in
custody.
(Emphasis added.) Petitioners suggest that this section signals an intent
that bail is available to detainees at the pre-trial stage. We disagree.
Discharge under sections 229A.8 or 229A.10 may be achieved only after a
trial has occurred, the detainee has been found beyond a reasonable doubt
to be a SVP, and commitment to the department of human services for
control, care and treatment has been ordered.
See Iowa Code § 229A.5(5) (requiring transfer of the detainee to an appropriate
3
secure facility for an evaluation only “[i]f the court determines that probable cause does
exist”). Although the statute does not expressly direct discharge of the detainee in the
event probable cause is not established, this is clearly implied.
6
Once committed, “a rebuttable presumption exists that the
commitment should continue.” Id. § 229A.8(1). Discharge of a detainee
committed to a secure facility may be ordered under section 229A.8 if the
detainee’s condition is subsequently shown to be suitable for discharge. 4
Similarly, a detainee committed to a secure facility may be discharged
pursuant to section 229A.10 if it is shown that the person no longer suffers
from a mental abnormality making it likely that the person will engage in
predatory acts constituting sexually violent offenses. 5 Discharge under
sections 229A.8 or 229A.10 is a remedy available to a detainee only after (1)
commitment has been ordered, and (2) the detainee’s mental condition has
improved so that transfer to a transitional program, release with or without
conditions, or discharge is appropriate. In summary, it is clear that the
petitioners have no access to bail under chapter 229A because (1) the
district court found probable cause to believe they are sexually violent
predators, and (2) the remedies of release and discharge are not available at
the pre-trial stage in the interim between a finding of probable cause and
trial of the claim that petitioners are SVPs.
Yet another feature of chapter 229A compels us to conclude the
legislature intended to preclude bail at the pre-trial stage. Section
229A.7(7) provides in relevant part: “Upon a mistrial, the court shall direct
4 After commitment to a secure facility, a person may petition the court for
placement in a transitional release program. See Iowa Code §§ 229A.8(4), 229A.8A.
Release may be ordered with or without supervision. Id. § 229A.9A(1).
5 Section 229A.7(5) provides:
If [at trial] the court or jury determines that the respondent is a sexually
violent predator, the respondent shall be committed to the custody of the
director of the department of human services for control, care, and
treatment until such time as the person’s mental abnormality has so
changed that the person is safe to be placed in a transitional release
program or discharged.
7
that the respondent be held at an appropriate secure facility until another
trial is conducted.” This provision unmistakably discloses by implication
the legislature’s intent that detention shall continue after the district court
has made a finding of probable cause until the question of whether the
detainee is in fact a SVP has been adjudicated. Accordingly, we conclude
the legislature clearly intended chapter 229A to preclude bail for detainees
at the pre-trial stage. Consequently, any claim to bail based upon common
law that antedated the adoption of chapter 229A is without merit.
Finally, our conclusion that the legislature intended to deny bail to
detainees at the pre-trial stage of SVP cases is strongly influenced by the
legislative findings set out in section 229A.1. The statute was adopted “to
protect the public, to respect the needs of the victims of sexually violent
offenses, and to encourage full, meaningful participation of sexually violent
predators in treatment programs.” Id. Admitting an individual to bail
before trial when there is probable cause to believe he or she is a sexually
violent predator would not further the legislature’s purposes. See Martin v.
Reinstein, 987 P.2d 779, 795 (Ariz. 1999) (noting that Arizona’s SVP statute
does not require access to bail because of legislators’ concerns about public
safety); Commonwealth v. Knapp, 804 N.E.2d 885, 890 (Mass. 2004)
(interpreting the Massachusetts SVP statute to require confinement without
bail after a finding of probable cause, in part because of the legislative
purpose of protecting the public).
B. Entitlement to Bail Under the Iowa Constitution.
i. Iowa Constitution Article 1, Section 9 (Due Process). 6
6 “The right of trial by jury shall remain inviolate; but the General Assembly may
authorize trial by a jury of a less number than twelve men in inferior courts; but no person
shall be deprived of life, liberty, or property, without due process of law.” Iowa Const. art. I,
§ 9.
8
The certifying court in this case has concluded the denial of bail at
the pre-trial stage did not violate the petitioners’ substantive due process
rights under the federal constitution. Atwood, 338 F. Supp. 2d at 998. We
are asked to decide the separate question whether petitioners are entitled to
bail under the Due Process Clause in the Iowa Constitution. See Iowa
Const. art. I, § 9 (stating “no person shall be deprived of life, liberty, or
property, without due process of law”). “This court has traditionally
considered the federal and state due process provisions to be equal in
scope, import, and purpose.” In re Det. of Garren, 620 N.W.2d at 284 (citing
In re Interest of C.P., 569 N.W.2d 810, 812 (Iowa 1997); Exira Cmty. Sch.
Dist. v. State, 512 N.W.2d 787, 792 (Iowa 1994)). Although “[w]e have an
interest in harmonizing our constitutional decisions with those of the
Supreme Court when reasonably possible, . . . we recognize and will
jealously guard our right and duty to differ in appropriate cases.” State v.
Olsen, 293 N.W.2d 216, 219-20 (Iowa 1980).
Substantive due process principles preclude the government “from
engaging in conduct that ‘shocks the conscience,’ or interferes with rights
‘implicit in the concept of ordered liberty.’ ” United States v. Salerno, 481
U.S. 739, 746, 107 S. Ct. 2095, 2101, 95 L. Ed. 2d 697, 708 (1987)
(citations omitted). To assess the petitioners’ substantive due process
claim, we first define the nature of the involved right. In re Det. of Cubbage,
671 N.W.2d 442, 446 (Iowa 2003). “[F]reedom from physical restraint ‘has
always been at the core of the liberty protected by the Due Process Clause
from arbitrary governmental action.’ ” Kansas v. Hendricks, 521 U.S. 346,
356, 117 S. Ct. 2072, 2079, 138 L. Ed. 2d 501, 511-12 (1997) (quoting
Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 1785, 118 L. Ed. 2d
437, 448 (1992)). Although the liberty interest of an individual to be free
9
from physical restraint has been described as “a paradigmatic fundamental
right,” Knapp, 804 N.E.2d at 891, the Supreme Court has noted that the
interest is not absolute. Hendricks, 521 U.S. at 356, 117 S. Ct. at 2079,
138 L. Ed. 2d at 512. States, including Iowa, have “in certain narrow
circumstances provided for the forcible civil detainment of people who are
unable to control their behavior and who thereby pose a danger to the
public health and safety.” Id. at 357, 117 S. Ct. at 2079, 138 L. Ed. 2d at
512. Involuntary civil commitment statutes have withstood due process
challenges if they authorize detention pursuant to proper procedures and
evidentiary standards. Id. at 357, 117 S. Ct. at 2080, 138 L. Ed. 2d at 512.
Petitioners do not advance here the broad notion that they have a due
process right not to be involuntarily detained prior to the adjudication of
their status under chapter 229A. They instead make the narrower claim
that once detained, they have a due process right to bail at the pre-trial
stage under the Iowa Constitution. The question whether the claimed right
is fundamental is one of first impression for this court. In In re Detention of
Garren, 620 N.W.2d 275 (Iowa 2000), we did not decide whether a detainee’s
liberty interest is fundamental because we concluded chapter 229A passed
muster even when judged under a strict scrutiny standard. Id. at 286.7 We
also rejected Garren’s claim that substantive due process required
placement of SVPs in the “least restrictive placement.” Id. at 285 (noting
that “even if such a right did exist, it is not a ‘fundamental right’ ” (citation
omitted)).
7 Unlike the petitioners, Garren presented an equal protection challenge. In an
earlier SVP case, we applied a rational basis analysis to an equal protection claim because
the appellant failed to preserve a claim that the reasonableness of the classification should
be subjected to strict scrutiny. In re Det. of Morrow, 616 N.W.2d 544, 548 n.1 (Iowa 2000).
10
As in Garren, we conclude it is unnecessary for us to resolve the
question whether the petitioners’ claimed interest is fundamental. Even
under strict scrutiny analysis, chapter 229A comports with substantive due
process standards. The state’s interest in detaining persons during the
interim between the district court’s finding of probable cause and the trial of
the SVP claim is compelling. It is an interest in protecting the public from
“a small but extremely dangerous group” of persons who are highly likely to
engage in “repeat acts of predatory sexual violence” if not detained. See
Iowa Code § 229A.1; In re Det. of Williams, 628 N.W.2d 447, 458 (Iowa 2001)
(finding a compelling state interest in “protecting society from a person
prone to sexually assaulting children”); In re Det. of Garren, 620 N.W.2d at
286 (finding the confinement of sexually violent predators in a secure
facility served the compelling State interest in “protection of the public”).
The restriction of liberty resulting from the denial of bail at the pre-
trial stage in these cases is narrowly tailored. See City of Panora v.
Simmons, 445 N.W.2d 363, 367 (Iowa 1989) (noting that a statute will
survive strict scrutiny analysis only if it is narrowly drawn to serve a
compelling state interest). Pre-trial detention without access to bail is
limited to a specific category of dangerous persons who have been convicted
of or charged with a sexually violent offense and who suffer from a mental
abnormality that makes them likely to engage in predatory acts constituting
sexually violent offenses, if not confined in a secure facility. See Iowa Code
§ 229A.2(11).
The significant procedural protections afforded detainees during the
pre-trial stage in SVP cases strongly influence our determination that the
statute is narrowly tailored. A person may not be detained under chapter
229A until after (1) the attorney general files a petition alleging that the
11
person is a SVP and stating sufficient facts to support such an allegation
(section 229A.4(1)), and (2) a district court has made a preliminary
determination that the person named in the petition is a SVP (section
229A.5(1)). Once detained, the person is entitled to a hearing in the district
court within seventy-two hours8 to determine whether probable cause exists
to believe the detained person is a SVP. See id. § 229A.5(2). At the
probable cause hearing, the detainee has the right to appear in person with
counsel, challenge the preliminary finding of probable cause by presenting
evidence, cross-examine the state’s witnesses, and access all petitions and
reports in the possession of the court. See id. § 229A.5(2)(a)-(g). If, after
the hearing, the district court finds probable cause to believe the detainee is
a SVP, the detainee is entitled to a timely trial to determine whether he is,
in fact, a SVP. 9
Our decision today is consistent with a series of prior decisions
upholding chapter 229A against substantive due process claims under the
Iowa Constitution. We have repeatedly held that civil commitment of a SVP
does not violate substantive due process. In re Det. of Darling, 712 N.W.2d
98, 101 (Iowa 2006) (holding that civil commitment of a person with an
untreatable condition was consistent with substantive due process under
the Iowa Constitution); In re Det. of Betsworth, 711 N.W.2d 280, 289 (Iowa
2006) (same); In re Det. of Hodges, 689 N.W.2d 467, 470 (Iowa 2004)
8 The hearing may be waived by the detainee or may be continued “upon the request
of either party and a showing of good cause, or by the court on its own motion in the due
administration of justice, . . . if the [detained person] is not substantially prejudiced.” Iowa
Code § 229A.5(2).
9 The trial shall be held within ninety days after “either the entry of an order waiving
the probable cause hearing or completion of the probable cause hearing,” unless the trial is
“continued upon the request of either party and a showing of good cause, or by the court
on its own motion in the due administration of justice . . . when the [detainee] will not be
substantially prejudiced.” See Iowa Code § 229A.7(3).
12
(holding that civil commitment on the basis of an antisocial personality
disorder was consistent with substantive due process under the Iowa
Constitution); In re Det. of Cubbage, 671 N.W.2d at 445-48 (finding no
fundamental right to be competent during SVP statute proceedings and,
thus, that commitment of incompetent people is consistent with substantive
due process under the Iowa Constitution).
ii. Iowa Constitution Article I, Section 12 (Bail Guarantee). 10
Iowa’s bail guarantee clause only applies to criminal cases. See Allen
v. Wild, 249 Iowa 255, 259, 86 N.W.2d 839, 842 (1957) (finding that the bail
guarantee clause does not guarantee bail in civil extradition proceedings
because the clause only has “reference to persons charged with offenses
against the laws of the State of Iowa”); Orr v. Jackson, 149 Iowa 641, 643-
44, 128 N.W. 958, 960 (1910) (holding that the bail guarantee clause is not
applicable in a habeas corpus proceeding because such proceedings are
civil); cf. Martin v. Reinstein, 987 P.2d 779, 788 (Ariz. 1999) (finding that the
Arizona Constitution’s bail guarantee only applies in the “criminal context”).
Because petitioners are pre-trial detainees in civil commitment proceedings,
not criminal proceedings, the bail guarantee clause does not entitle them to
bail. 11
iii. Iowa Constitution Article I, Section 17 (Excessive Bail). 12
Due to the similarity between the Federal and Iowa Excessive Bail
Clauses, the Iowa Supreme Court “ ‘look[s] to the interpretations by the
United States Supreme Court for guidance in interpreting [Iowa’s] clause.’ ”
10 “All
persons shall, before conviction, be bailable, by sufficient sureties, except for
capital offences where the proof is evident, or the presumption great.” Iowa Const. art. I,
§ 12.
11 Proceedings
under chapter 229A are civil. See In re Bradford, 712 N.W.2d at 146-
47; In re Det. of Garren, 620 N.W.2d at 283-86.
12 “Excessive bail shall not be required . . . .” Iowa Const. art. I, § 17.
13
State v. Briggs, 666 N.W.2d 573, 584 (Iowa 2003) (citing State v. Izzolena,
609 N.W.2d 541, 547 (Iowa 2000)). The Federal Constitution’s Excessive
Bail Clause only prohibits excessive bail in cases “where it is proper to grant
bail”; it does not impliedly create a right to bail. Carlson v. Landon, 342
U.S. 524, 545, 72 S. Ct. 525, 537, 96 L. Ed. 547, 563 (1952). Because
petitioners offer no reason for us to interpret the Iowa Constitution’s
Excessive Bail Clause differently, we conclude that it does not create a right
to bail, but instead only ensures that properly granted bail is not excessive.
Accordingly, petitioners’ claim that the Iowa Excessive Bail Clause entitles
them to bail must fail.
iv. Iowa Constitution Article I, Section 8 (Personal Security). 13
Iowa law is unclear regarding whether article I, section 8 applies in a
civil context, such as commitment proceedings under chapter 229A. The
Iowa Supreme Court generally interprets article I, section 8 of the Iowa
Constitution to track federal interpretations of the Fourth Amendment. See
State v. Jones, 666 N.W.2d 142, 144 (Iowa 2003). The United States
Supreme Court has applied the Fourth Amendment in both civil and
criminal contexts. See United States v. James Daniel Good Real Prop., 510
U.S. 43, 49, 114 S. Ct. 492, 499, 126 L. Ed. 2d 490, 500 (1993) (noting that
the Fourth Amendment “place[s] restrictions on seizures conducted for
purposes of civil forfeiture”); United States v. Verdugo-Urquidez, 494 U.S.
259, 264, 110 S. Ct. 1056, 1060, 108 L. Ed. 2d 222, 232 (1990) (observing
that the “Fourth Amendment . . . prohibits ‘unreasonable searches and
13 Iowa Constitution article I, section 8, states:
The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable seizures and searches shall not be violated;
and no warrant shall issue but on probable cause, supported by oath or
affirmation, particularly describing the place to be searched, and the
persons and things to be seized.
14
seizures’ whether or not the evidence is sought to be used in a criminal
trial”).
We recognize that we may interpret the Iowa Constitution differently,
but the parties suggest no reason for us to do so. We accordingly hold that
article I, section 8 applies in a civil context. Petitioners thus fall within the
ambit of protection afforded by the personal security guarantee of article I,
section 8.
We now turn to whether the seizure 14 of petitioners was “reasonable”
under article I, section 8. To determine whether governmental action is
“reasonable” under this constitutional provision, the Iowa Supreme Court
balances an individual’s interests with the State’s interests. State v.
Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). We find that the State’s pre-
trial seizure of petitioners is reasonable because the State’s weighty interest
in protecting the public from an “extremely dangerous” class of people
outweighs an individual’s interest in being free on bail for ninety days
between a probable cause hearing and trial. See Iowa Code § 229A.1.
v. Iowa Constitution Article I, Section 10 (Rights of the Accused). 15
Article I, section 10 does not entitle petitioners to bail because this
provision only applies to criminal proceedings. It protects only the rights of
14 Pre-trial detention is undisputedly a “seizure.” It constitutes a “show of
authority” that restrains the individual. See State v. Reindeers, 690 N.W.2d 78, 82 (Iowa
2004) (“ ‘A seizure occurs when an officer by means of physical force or show of authority in
some way restrains the liberty of a citizen.’ ” (quoting State v. Pickett, 573 N.W.2d 245, 247
(Iowa 1997))).
15 Iowa Constitution article I, section 10, states:
In all criminal prosecutions, and in cases involving the life, or liberty of an
individual the accused shall have a right to a speedy and public trial by an
impartial jury; to be informed of the accusation against him, to have a copy
of the same when demanded; to be confronted with the witnesses against
him; to have compulsory process for his witnesses; and, to have the
assistance of counsel.
15
an “accused,” not the rights of an individual facing potential civil
commitment pursuant to Iowa’s SVP statute.
In addition, even if this were a criminal proceeding, petitioners could
not rely on article I, section 10. This provision does not include among its
express protections a right to bail.
vi. Iowa Constitution Article I, Section 21 (Bills of Attainder). 16
A bill of attainder “is a legislative determination that metes out
punishment to a particular individual or a designated group of persons
without a judicial trial.” State v. Phillips, 610 N.W.2d 840, 843 (Iowa 2000).
Three elements comprise a bill of attainder: a specific legislative target,
imposition of punishment, and absence of a judicial trial. Id.
The determinative element in this case is imposition of punishment.
To assess whether a law imposes punishment, we look to the intentions of
the legislature. See State v. Swartz, 601 N.W.2d 348, 351 (Iowa 1999)
(noting that if a law is “designed to accomplish some other legitimate
governmental purpose [besides imposition of punishment] it should stand”);
Doe v. Poritz, 662 A.2d 367, 396 (N.J. 1995) (“What counts . . . is the
purpose and design of the statutory provision, its remedial goal and
purposes, and not the resulting consequential impact, the ‘sting of
punishment,’ that may inevitably, but incidentally, flow from it.”). By
enacting Iowa’s SVP statute, the legislature did not intend to punish
sexually violent predators. Rather, the stated purposes of the statute are to
protect society and facilitate treatment of sexually violent predators. Iowa
Code § 229A.1. Therefore, the SVP statute is not a bill of attainder that
impermissibly denies petitioners the right to bail.
16 “No bill of attainder, ex post facto law, or law impairing the obligation of
contracts, shall ever be passed.” Iowa Const. art. I, § 21.
16
vii. Iowa Constitution Article I, Section 25 (Unenumerated Rights) 17
and Article I, Section 1 (Inalienable Rights). 18
Petitioners’ claims that Iowa Constitution article I, section 25, the
unenumerated rights clause, and Iowa Constitution article I, section 1, the
inalienable rights clause, entitle them to bail fail for essentially the same
reason. Both the inalienable rights clause and the unenumerated rights
clause secure to the people of Iowa common law rights that pre-existed
Iowa’s Constitution. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 176
(Iowa 2004) (citing May’s Drug Stores v. State Tax Comm’n, 242 Iowa 319,
329, 45 N.W.2d 245, 250 (1950)) (“We have held [the inalienable rights
clause] was intended to secure citizens’ pre-existing common law rights
(sometimes known as ‘natural rights’) from unwarranted government
restrictions.”); State ex rel. Burlington & Mo. River R.R. v. County of Wapello,
13 Iowa 388, 412 (1862) (concluding that the purpose of the unenumerated
rights clause is to “bring . . . unenumerated rights retained by the people,
founded equally . . . upon natural justice and common reason . . . within
the censorship of courts of justice . . . when . . . [the rights are] assailed”).
To resolve this case, however, we need not determine whether a common
law right to bail in civil commitment proceedings pre-existed the
Constitution, as the petitioners urge us to do. Even if the right to bail in
civil commitment proceedings pre-existed the Constitution and
consequently falls within the ambit of the protections afforded by the
unenumerated rights and inalienable rights clauses, the SVP statute is
reasonable and, thus, constitutional.
17 “This enumeration of rights shall not be construed to impair or deny others,
retained by the people.” Iowa Const. art. I, § 25.
Iowa Constitution article I, section 1, states, “All men are, by nature, free and
18
equal, and have certain inalienable rights—among which are those of enjoying and
defending life and liberty, acquiring, possessing and protecting property, and pursuing and
17
It is well-established that the protections of Iowa’s inalienable rights
clause are not absolute. See Gacke, 684 N.W.2d at 176. The clause does
not prevent all legislative action taken pursuant to the police power that
benefits the community and impacts an inalienable right (i.e. a common law
or natural right). See id. Instead, it prevents only arbitrary, unreasonable
legislative action that impacts an inalienable right. See id. (citing Gibb v.
Hansen, 286 N.W.2d 180, 186 (Iowa 1979); May’s Drug Stores, 242 Iowa at
329, 45 N.W.2d at 250; Benschoter v. Hakes, 232 Iowa 1354, 1361, 8
N.W.2d 481, 485 (1943); State v. Osborne, 171 Iowa 678, 693, 154 N.W.
294, 300 (1915)).
We find that the unenumerated rights clause similarly prohibits not
all legislative action, but instead only unreasonable action. The petitioners
root their argument that the unenumerated rights clause entitles them to
bail in the assumption that unenumerated rights are absolute and may not
be the subject of legislative action, even if reasonable. This interpretation of
the unenumerated rights clause would effectively disallow all legislative
action as to all unenumerated rights. Such an interpretation of the
unenumerated rights clause would substantially limit the power of the
legislature to enact laws, such as the SVP statute, that protect the public.
Moreover, we have previously recognized that the unenumerated
rights clause limits, not eliminates, the State’s power to legislatively impact
unenumerated rights. In State ex rel. Burlington & Mo. River R.R. v. County
of Wapello, we noted the theoretical inconsistency between two prevalent
legal doctrines: “the doctrine that the Constitution allows the legislature
the use of every power which it does not positively prohibit,” and the
doctrine that the Constitution reserves to the people all rights “secured
obtaining safety and happiness.”
18
under our plan of government.” 13 Iowa at 413. An inconsistency arises in
that a legislature with “full and uncontrolled sway” to act in all ways not
specifically prohibited in the Constitution would inevitably infringe upon
rights reserved to the people. Id. In Wapello, we concluded that while the
legislature may take actions to benefit the community, the Iowa
Constitution’s reservation of unenumerated rights to the people limits “an
abuse” of legislative power. Id. at 412-15.
Having concluded that the legislature may take reasonable action that
impacts rights protected by the inalienable rights and unenumerated rights
clause, we turn to whether the SVP statute is reasonable. Because of the
State’s interests in rehabilitating sexually violent predators and protecting
the public, we find that pre-trial detention under the SVP statute is a
reasonable, and thus constitutional, exercise of legislative power.
III. Conclusion.
We conclude that pre-trial detainees being held pursuant to Iowa
Code chapter 229A are not entitled to bail under either the common law or
the Iowa Constitution. The clerk of the supreme court is directed to send a
copy of this opinion under the seal of the court to the certifying court and
the parties. Iowa Code § 684A.7. The clerk shall also prepare and transmit
a bill of costs to the clerk of the certifying court. Iowa R. App. P. 6.459. The
clerk of the certifying court shall be responsible for apportioning and
collecting costs. Id.
CERTIFIED QUESTION ANSWERED.
All justices concur except Appel, J., who takes no part.