IN THE SUPREME COURT OF IOWA
No. 22–0952
Submitted September 13, 2023—Filed October 13, 2023
IN THE MATTER OF V.H., Alleged to be Seriously Mentally Impaired.
V.H.,
Appellant.
Appeal from the Iowa District Court for Johnson County, Lars Anderson,
Judge.
Respondent appeals the district court ruling denying his motion to
represent himself in an involuntary civil commitment proceeding under Iowa
Code chapter 229 and the ruling requiring his hospitalization. AFFIRMED.
Waterman, J., delivered the opinion of the court, in which all justices
joined.
Charles D. Paul of Nidey Erdahl Meier & Araguás, P.L.C., Cedar Rapids,
for appellant.
Brenna Bird, Attorney General, and Sarah A. Jennings and Eric H.
Wessan, Assistant Attorneys General, for appellee. 2
WATERMAN, Justice. This appeal presents the question of whether a person facing involuntary
civil commitment for mental illness under Iowa Code chapter 229 has a federal
constitutional right to self-representation. Iowa Code section 229.9 requires that
an attorney represent the respondent at all stages of the proceedings. The
respondent in this case, under court-ordered psychiatric treatment, had a
history of self-harm, suicide threats, and refusal to take his medications. While
represented by counsel, he appealed his commitment order and filed a motion
“under the 6th Amendment” to represent himself. The district court denied his
motion to proceed pro se and, after a hearing, ordered his continued
hospitalization, rejecting his argument that the State failed to show a qualifying
recent overt act of self-harm. The respondent appealed both rulings, and we
retained the case.
On our review, we hold that respondents in Chapter 229 proceedings do
not have a federal constitutional right to represent themselves and forego the
legal representation required by the statute. This respondent failed to preserve a
claim under the Iowa Constitution. The Sixth Amendment right to counsel and
right to self-representation in criminal cases do not apply to this Chapter 229 proceeding. And most courts reaching the issue have rejected a federal due
process right to self-representation in analogous mental health civil commitment
proceedings. These cases recognize a circularity problem: the court would have
to first determine whether the respondents in an involuntary mental health
commitment proceeding are competent to represent themselves and waive their
statutory right to counsel; yet the validity of that waiver, in turn, could be called
into question whenever the court finds the pro se respondent is so seriously
mentally impaired as to require involuntary treatment. 3
On the merits, we determine that the district court’s factual findings,
including a recent overt act showing dangerousness, are supported by
substantial evidence and binding on appeal. We affirm the rulings for the reasons
more fully explained below.
I. Background Facts and Proceedings.
V.H., now age 22, has struggled with mental health problems since
childhood, with multiple incidents of suicidal ideation. On May 30, 2019, V.H.
began serving consecutive prison sentences totaling up to eight years for
convictions on two counts of assault causing injury to peace officers and three
counts of first-degree harassment. He was incarcerated at the Iowa Medical and
Classification Center (IMCC) in Coralville. There, prison staff began documenting
instances of his aggressive and impulsive behavior—including banging his head,
damaging property, harassing female staff, and attempting to swallow metal
objects. V.H. was placed in restraints at times after physically resisting officers
and threatening self-harm.
In the spring of 2020, V.H.’s behavior worsened. He refused to take his
medications, claiming he had no need for the treatment. On May 1, V.H. became
combative with staff, broke off a sprinkler head, and threatened to swallow it. He also resisted efforts to subdue him, resulting in officers placing him in restraints
to administer his medication. Several days later, V.H. threatened to tie a sheet
around his neck and was placed in suicide prevention. On May 4, IMCC staff
applied for an order of involuntary hospitalization under Iowa Code chapter 229.
Dr. Gary Keller, an IMCC psychiatrist, examined V.H. and diagnosed him
with impulse control disorder, borderline intellectual functions, and an
unspecified mood disorder exhibiting symptoms of anxiety and depression. A
hearing was conducted on May 8 by a judicial hospitalization referee. The referee, relying on Dr. Keller, found V.H. to be seriously mentally impaired, a 4
danger to himself and others if untreated, and lacking “sufficient judgment to
make responsible decisions with respect to [his] hospitalization or treatment.”
The referee ordered V.H.’s involuntary commitment for mental health treatment
within the IMCC.
Over the next two years, a judicial hospitalization referee regularly
reviewed V.H.’s commitment, and a series of court orders left his commitment in
place. Dr. Keller filed periodic reports1 supporting V.H.’s continuing
hospitalization. We summarize highlights from these reports:
• August 2020: V.H. struggled with his behavior and safety— most notably, banging his head. On two occasions, he required physical restraint by staff to stop him from banging his head. V.H. refused his medications and failed to comprehend his need for treatment.
• November 2020: V.H. repeatedly banged his head and encouraged others to do so. He lacked awareness of his mental health and related actions.
• February 2021: V.H. was placed on suicide watch and injury prevention at least four times from December 2020 to February 2021. His placement stemmed from threatening suicidal actions, such as tying a sheet around his neck and swallowing bolts.
• May 2021: V.H. was again placed on suicide watch and injury prevention four times in a two-week span. He refused oral medications on “a few instances . . . in the past couple weeks.” He believed he did not suffer from a mental illness and denied needing any medications.
• August 2021: V.H. had several episodes of banging his head and resisting staff. He required “periodic de-escalation” roughly once a week. V.H. refused his medication at times.
1Iowa Code § 229.15(2) (2022) provides:
Not more than sixty days after the entry of a court order for treatment of a patient . . . the medical director of the facility or the psychiatrist or psychiatric advanced registered nurse practitioner treating the patient shall report to the court which entered the order. The report shall state whether the patient’s condition has improved, remains unchanged, or has deteriorated, and shall indicate if possible the further length of time the patient will require treatment by the facility. 5
• November 2021: V.H. physically resisted and spit on staff members. He continued to lack insight and displayed unpredictable behaviors.
• March 2022: V.H. believed he did not have a mental illness and denied needing any medication. He had “many incidents” of refusing to take his medications.
On March 17, 2022, the district court again confirmed V.H.’s continuing
commitment. A week later, V.H., by handwritten letter, moved to terminate his
commitment and asked to proceed pro se so he could personally cross-examine
Dr. Keller. On April 1, Dr. Keller submitted another periodic report diagnosing
V.H. with Bipolar Disorder Type 1, Impulse Control Disorder, and Antisocial
Personality Disorder. Dr. Keller noted that V.H. committed multiple instances of
self-harm—headbanging and fighting with the staff—requiring him to be placed
in restraints, had been placed on suicide watch eight times since early February,
and still refused his medications.
The judicial hospitalization referee conducted a hearing on April 4, where
V.H. was represented by court-appointed counsel Charles Paul. On April 6, the
hospitalization referee ordered V.H.’s continuing commitment for hospitalization
within the IMCC, relying on the report and testimony of Dr. Keller. The same
day, V.H. submitted a handwritten request to appeal to the district court and represent himself, with Paul as standby counsel. Paul, in turn, filed a notice of
appeal to the district court and a motion to allow V.H. to proceed pro se, relying
on the Sixth Amendment and caselaw. The district court set a hearing for
May 24.
Meanwhile, Dr. Keller’s next report, dated May 23, noted that V.H. became
“defiant” after his April 4 hearing with the referee and refused his oral
medications, necessitating “injectable medications” to calm him down. V.H. later
got in a fight with another inmate and was placed on security status. On May 17, a week before his scheduled court hearing, V.H. was again banging his head and 6
refusing his medication, requiring injections. V.H. continued denying he needed
medication or treatment, and Dr. Keller maintained his recommendation for his
civil commitment.
On May 24, the district court heard the appeal. V.H. appeared with
attorney Paul. The court first addressed V.H.’s motion to proceed pro se. The
district court denied the motion on the record, noting that Iowa Code
section 229.9 requires an attorney to represent the individual at all proceedings
relating to their commitment. The district court further stated that the Sixth
Amendment “was inapplicable” to a civil commitment proceeding, and “the
Fourteenth Amendment substantive due process rights were not offended by the
statute’s requirement that somebody be represented by counsel.” The district
court referred to state supreme court cases from Montana and Vermont as
persuasive authority denying the right to self-representation in a civil
commitment proceeding.2
Dr. Keller testified that V.H. still poses a danger to himself and others and
that the civil commitment within the prison remains necessary for his treatment.
V.H. had the opportunity, through his counsel, to cross-examine Dr. Keller. The
court allowed V.H. to make a statement. He argued that Dr. Keller was wrong to continue his civil commitment, and he stated he was not mentally ill and did not
need to take any medication, insisting he only has “a little bit of anger problems.”
Paul argued that the State had failed to establish the “dangerousness” element
necessary for civil commitment.
The district court entered its written ruling the next day. The court noted
that “[f]or the reasons stated on the record,” it denied V.H.’s “request to represent
himself” and cited the Montana and Vermont cases in an accompanying footnote.
2In re S.M., 403 P.3d 324 (Mont. 2017), and In re G.G., 165 A.3d 1075 (Vt. 2017). 7
Relying on the testimony and reports of Dr. Keller, the court affirmed the
referee’s decision to continue V.H.’s involuntary commitment. The district court
found:
[T]he State has met its burden. Dr. Keller’s testimony established the existence of a mental illness [and that V.H.] . . . lacks judgmental capacity. He refuses medications when he becomes upset, does not believe he has any mental illness, and has shown an inability to control his behaviors (despite his protestations otherwise). When consistently taking medications, [V.H.] has been able to have fairly lengthy stretches of doing well. When [V.H.] becomes upset, he bangs his head (most recently on May 17), which in turn establishes the requisite dangerousness. Absent a commitment order, it is likely that [V.H.] will stop taking his medications and there will be a corresponding deterioration in his behaviors.
V.H. appealed through counsel, arguing the district court erred in denying
his right to self-representation under the Sixth and Fourteenth Amendments and
erred in finding that a qualifying “recent overt act” supported the involuntary
hospitalization because the headbanging the week before the hearing caused no
injury. The State argued that the district court correctly denied V.H.’s motion to
proceed pro se because Iowa Code section 229.9 requires representation by
counsel “and is based on the reality that a person who is within a committal
proceeding is not able to provide themselves with representation.” The State noted that “even in the criminal process, the right to represent oneself is not
absolute and a Judge has the ability to determine if a defendant is capable of
conducting their own defense.” The State observed that a respondent allowed to
waive his right to counsel could later challenge his competency to do so. On the
merits, the State argued the headbanging incident a week before the district
court hearing met the recency requirement and was “not a onetime event,
because in the past there were injuries and bleeding” from his headbanging. In
his appellate reply brief, V.H., for the first time, raised the Iowa Constitution in a single sentence, stating without any further elaboration: “The Iowa 8
Constitution’s guaranty to [c]ounsel is broader than the U.S. Constitution
applying the right to counsel to any case involving life of [l]iberty of the . . .
individual. I[owa] Const. [a]rt. I. § 10.” We retained the case.
II. Standard of Review.
We conduct a de novo review of claims that a constitutional right to
self-representation was violated by the district court. State v. Johnson,
756 N.W.2d 682, 686 (Iowa 2008); see also In re Det. of Shaffer, 769 N.W.2d 169,
172 (Iowa 2009) (reviewing constitutional claims de novo in civil commitment
proceedings).
“We review challenges to the sufficiency of the evidence in involuntary
commitment proceedings for errors at law.” In re B.B., 826 N.W.2d 425, 428 (Iowa
2013). The elements required for an involuntary commitment must be
established by clear and convincing evidence. In re J.P., 574 N.W.2d 340, 342
(Iowa 1998). The district court’s findings of fact in a Chapter 229 proceeding “are
binding on us if supported by substantial evidence.” Id. “Evidence is substantial
if a reasonable trier of fact could conclude the findings were established by clear
and convincing evidence. We will not set aside the trial court’s findings unless,
as a matter of law, the findings are not supported by clear and convincing evidence.” Id.
III. Analysis.
We first address whether the district court correctly ruled V.H. could not
represent himself in this Chapter 229 proceeding. We determine V.H. failed to
preserve error on his claimed right to self-representation under article I,
section 10 of the Iowa Constitution, and the district court correctly denied his
claim under the Sixth and Fourteenth Amendments to the United States
Constitution. 9
On the merits, we affirm the district court’s ruling continuing V.H.’s
involuntary commitment for hospitalization within the IMCC. We agree with the
State that substantial evidence supports the district court’s findings, including
a recent overt act showing dangerousness.
A. The District Court Correctly Denied V.H.’s Motion to Represent
Himself. V.H.’s right to counsel is undisputed and indeed mandated under Iowa
Code section 229.9. This does not mean he has a constitutional right to refuse
counsel and represent himself in this civil proceeding for his involuntary
commitment. The legislature did not provide a right to waive counsel in
chapter 229, and V.H.’s claim under the federal constitution to represent himself
fails.
1. V.H. failed to preserve error on any right to self-representation under
article I, section 10 of the Iowa Constitution and forfeited any such claim on
appeal. “It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide
them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). In district
court, V.H. relied on the Sixth and Fourteenth Amendments to the United States
Constitution for his claimed right to self-representation without mentioning the Iowa Constitution.3 His failure to raise the state constitutional claim in the
district court means the claim is not preserved for appellate review.
In addition, V.H. forfeited any such claim on appeal. V.H. first cited
article I, section 10 of the Iowa Constitution in the single sentence in his
appellate reply brief that we quoted above. That is too late to raise the issue. See
3V.H.’s handwritten letter requesting a court date stated in part, “I would also like to represent myself and remove [prior counsel] from my case. It is part of my constitution to not have legal [counsel] if I do not want it. I would ask the courts to please let me represent myself.” Article I, section 10 of the Iowa Constitution was not cited to the hospital referee or district court, and the court made no ruling under the state constitution. 10
State v. Basquin, 970 N.W.2d 643, 659 n.5 (Iowa 2022) (“We have repeatedly held
we will not consider issues raised for the first time in a reply brief.” (quoting
State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009))). V.H. also failed to develop
his belated Iowa constitutional claim “in any meaningful way, and we decline to
develop these arguments on his behalf.” Hrbeck v. State, 958 N.W.2d 779, 788
(Iowa 2021); see also Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in
support of an issue may be deemed waiver of that issue.”); In re S.M., 403 P.3d
324, 327 n.1 (Mont. 2017) (“Because S.M. failed to provide separate legal analysis
regarding any possible greater protections the Montana constitution affords [for
self-representation in a civil commitment proceeding], the court declines to
decide those issues here.”). Accordingly, we confine our analysis to V.H.’s
claimed federal constitutional right to self-representation.
2. V.H. has no federal constitutional right to self-representation in this
Chapter 229 civil commitment proceeding. V.H. asks us to extend, for the first
time, the federal constitutional right to self-representation in criminal cases to
this proceeding for his involuntary civil commitment under Iowa Code
chapter 229. He, in effect, asks us to declare unconstitutional the legislature’s
requirement that attorneys represent respondents in these proceedings. We decline to do so.
Iowa’s involuntary civil commitment statute unequivocally requires
respondents to be represented by counsel, using the mandatory term “shall”:
“The respondent’s attorney shall represent the respondent at all stages of the
proceedings, and shall attend the hospitalization hearing.” Iowa Code § 229.9
(2022) (emphasis added). Before the proceedings commence, the court must
determine if the respondent has an attorney “who is able and willing to represent
the respondent in the hospitalization proceeding, and if not, whether the respondent is financially able to employ an attorney and capable of meaningfully 11
assisting in selecting one.” Id. § 229.8(1). And if the respondent’s attorney
withdraws, the court “shall appoint” another attorney. Id. § 229.14A(5)(c)
(emphasis added). Nowhere in chapter 229 is there any provision allowing the
respondent to waive the right to counsel. If the legislature had intended to allow
self-representation in Chapter 229 proceedings, it presumably would have said
so, as it has in other chapters.4 V.H. fails to meet his heavy burden to show
chapter 229’s requirements for representation by counsel violate the Federal
Constitution. See State v. Aschbrenner, 926 N.W.2d 240, 246 (Iowa 2019)
(describing the heavy burden to overcome the presumption of constitutionality).
a. The Sixth Amendment. V.H. relies on federal caselaw under the Sixth
Amendment that recognizes a right to self-representation in criminal cases:
Faretta v. California. 422 U.S. 806, 807 (1975) (holding that the Sixth
Amendment does not permit a state to “hale a person into its criminal courts
and there force a lawyer upon him”). In our view, the district court correctly
determined the Sixth Amendment is inapplicable to this Chapter 229 civil
commitment. The Sixth Amendment provides: “In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI (emphasis added). The text of this amendment applies only to criminal proceedings, and the Supreme Court has never extended
the right to self-representation to civil commitment proceedings. To the contrary,
the Supreme Court has recognized that “[i]n a civil commitment[,] state power is
not exercised in a punitive sense,” and therefore, “a civil commitment proceeding
4The legislature expressly permits other litigants to waive their right to court-appointed
counsel in civil proceedings and represent themselves. See, e.g., Iowa Code § 232.11(2) (governing waiver of right to counsel in juvenile delinquency hearings); id. § 600A.6A (allowing court-appointed counsel for an indigent party in a proceeding to terminate parental rights “if the person requests appointment of counsel” (emphasis added)); id. § 822.3A(2) (allowing an applicant for postconviction relief to “proceed[] without the assistance of counsel”). 12
can in no sense be equated to a criminal prosecution.” Addington v. Texas,
441 U.S. 418, 428 (1979) (footnote omitted). V.H. cites no federal cases holding
that the Sixth Amendment applies in civil mental health commitment
proceedings, and we found none.
The United States Court of Appeals for the Eighth Circuit has expressly
declined to recognize a Sixth Amendment right to self-representation in civil
commitment proceedings. See, e.g., United States v. Vazques, 81 F.4th 820, 822
(8th Cir. 2023); United States v. O’Laughlin, 934 F.3d 840, 841 (8th Cir. 2019).
The O’Laughlin court affirmed the denial of the respondent’s motion to proceed
pro se in challenging his civil commitment, stating:
Civil commitment involves a loss of liberty, to be sure. But rather than imposing a punitive sentence upon criminal conviction, the civil commitment process provides for release once the individual is no longer a danger to others. Following the logic of the Supreme Court in Addington, we hold a civil commitment proceeding under [18 U.S.C.] § 4246 is not a criminal prosecution for purposes of the Sixth Amendment.
934 F.3d at 841 (citations omitted).
We reach the same conclusion under chapter 229. See In re Det. of Crane,
704 N.W.2d 437, 438 n.3 (Iowa 2005) (noting that Chapter 229A proceedings
“are civil and not criminal in nature, and therefore the Sixth Amendment is not
directly implicated”). Other state courts are in accord. See Conservatorship of
Joel E., 33 Cal. Rptr. 3d 704, 708 (Ct. App. 2005) (“[T]he Sixth Amendment
applies exclusively to ‘criminal prosecutions’ and does not afford individuals a
right to self-representation in civil proceedings.” (citation omitted)); In re S.M.,
403 P.3d at 327 (“[T]he Sixth Amendment of the United States Constitution does
not apply to civil commitment proceedings. By its very language the Sixth
Amendment is limited to ‘criminal prosecutions.’ ” (quoting U.S. Const. amend. VI)); In re G.G., 165 A.3d 1075, 1084, 1086 (Vt. 2017) (declining to extend Sixth 13
Amendment right to self-representation to civil commitment proceedings). V.H.’s
Sixth Amendment claim fails.
b. The Fourteenth Amendment. V.H. fares no better under the due process
clause of the Fourteenth Amendment. He relies heavily on McNabb v.
Osmundson, where we held that persons facing incarceration in civil contempt
proceedings must be provided counsel under the Fourteenth Amendment.
315 N.W.2d 9, 13–14 (Iowa 1982) (en banc). But that case did not involve any
claimed right to self-representation. After briefs were filed in V.H.’s case, the
Eighth Circuit Court of Appeals enforced a statutory requirement for counsel to
handle motions to discharge a civil commitment and held that the person
involuntarily committed had no due process right to proceed pro se. Vazques, 81
F.4th at 822 (rejecting a Fifth Amendment due process claim in a federal court
proceeding). V.H. does not specify whether he is making a procedural or
substantive due process claim. The district court regarded his due process claim
as substantive but cited cases rejecting each theory: In re S.M., 403 P.3d at 327–
31 (rejecting substantive due process claim), and In re G.G., 165 A.3d at 1084–
91 (rejecting procedural due process claim). Like the district court, we find these
cases persuasive. We address each theory. (1) Substantive due process. V.H. relied on the Sixth Amendment to
support his due process claim. But as we have explained, the Sixth Amendment
is inapplicable to his civil commitment proceedings. The Montana Supreme
Court thoroughly reviewed caselaw, statutes nationwide, and the history of
mental health treatment in this country to conclude there is no fundamental
right to self-representation in civil commitment proceedings. In re S.M., 403 P.3d
at 328–31. We reach the same conclusion.
The In re S.M. court addressed whether the asserted right is “objectively deeply rooted in the Nation’s history and tradition, and implicit in the concept of 14
ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” Id. at 328 (quoting Washington v. Glucksberg, 521 U.S. 702, 720–21
(1997)). The Montana court contrasted the right to self-representation in criminal
cases, which enjoyed “nearly universal” support, from the right to waive counsel
in civil commitment proceedings, where such consensus is lacking. Id. at 328–29
(quoting Faretta, 422 U.S. at 817). The In re S.M. court examined the evolving
history of mental health treatment and found that “proceedings for involuntary
civil commitment are relatively modern developments.” Id. at 329. The court
concluded:
[T]his history tells us that self-representation in civil commitment proceedings has not been protected since the beginning of the Nation. In fact, strong procedural safeguards to protect the interests of those facing involuntary civil commitment are a rather recent development and have focused on improving the fairness and accuracy of the process.
The history tells us further that the process afforded to respondents in civil commitment proceedings is the subject of a “considered legislative response,” and we should be cautious to extend constitutional protections that “place the matter outside the arena of public debate and legislative action.”
Id. at 329–30 (quoting Dist. Att’y’s Off. for Third Jud. Dist. v. Osborne, 557 U.S.
52, 73 (2009) (plurality opinion)). The In re S.M. court then aptly observed, “There
is a very real risk that self-representation in civil commitment proceedings would
increase the likelihood of an unfair or erroneous result rather than enhancing
the fairness or accuracy of the proceeding.” Id. at 330. We agree, and we hold
V.H. lacks a fundamental right under the Federal Constitution to represent
himself and proceed pro se in this Chapter 229 mental health civil commitment
proceeding.
With no fundamental right implicated, the statutory requirement for
representation by counsel need only “be rationally related to legitimate government interests.” Glucksberg, 521 U.S. at 728. We conclude that requiring 15
a lawyer to represent persons facing involuntary civil commitment is rationally
related to the legitimate legislative objective of preserving the “fairness, integrity,
and accuracy in the civil commitment process.” In re S.M., 403 P.3d at 331. The
district court correctly rejected V.H.’s substantive due process claim.
(2) Procedural due process. The district court also relied on the Vermont
Supreme Court’s decision that thoroughly analyzed and rejected a procedural
due process right to self-representation in a civil commitment proceeding. In re
G.G., 165 A.3d at 1084–91. The In re G.G. court determined, as we have, that the
Sixth Amendment right to self-representation does not apply in civil commitment
proceedings. Id. at 1084, 1086. The court treated the argument for
self-representation as “grounded in procedural due process.” Id. at 1084. The
court noted the liberty interests at stake under Vermont’s civil commitment
statute trigger due process protection. Id. (citing Vitek v. Jones, 445 U.S. 480,
491–92 (1980), and quoting the case for the proposition that “[w]e have
recognized that for the ordinary citizen, commitment to a mental hospital
produces a massive curtailment of liberty, and in consequence requires due
process protection.”). So too under Iowa Code chapter 229. See In re M.T.,
625 N.W.2d 702, 706 (Iowa 2001) (en banc) (“[A] respondent’s liberty interests are at stake at an involuntary commitment hearing.”).
“[O]nce it is determined due process applies, the question remains what
process is due.” In re G.G., 165 A.3d at 1085 (alteration in original) (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The In re G.G. court applied the
Mathews three-factor test, see Mathews v. Eldridge, 424 U.S. 319, 335 (1976),
examining: “(i) the interests of the individual; (ii) the governmental interest
affected; and (iii) the risk of erroneous deprivation of the individual’s interests if
the right he or she asserts is not recognized, and the probable value, if any, of recognizing that right.” 165 A.3d at 1085–86. We too apply the Mathews test in 16
evaluating procedural due process claims under Iowa’s civil commitment
statutes. See In re Det. of Williams, 628 N.W.2d 447, 458 (Iowa 2001) (en banc).
In analyzing the first factor, the In re G.G. court recognized that the
individual’s interest in self-representation in criminal cases is based on their
dignity and autonomy to conduct their own defense at trial, and the court noted
that the right to self-representation in a criminal case is not absolute but is
limited to those who are mentally competent to defend themselves. 165 A.3d at
1087; see also Indiana v. Edwards, 554 U.S. 164, 176 (2008). The In re G.G.
court echoed the Supreme Court’s observation:
[In a criminal case,] a right of self-representation at trial will not affirm the dignity of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel. To the contrary, given that defendant’s uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling.
Id. (quoting Edwards, 554 U.S. at 176). The In re G.G. court continued, “As is
true of a mentally ill criminal defendant, a mentally ill patient who engages in
self-representation at a civil hearing runs the risk of undermining his or her
dignity and autonomy by presenting the case ineffectively as a result of the
underlying mental illness.” Id. at 1088. We agree. Relatedly, in analyzing the second factor, the In re G.G. court concluded a
right to self-representation would undermine the State’s interest in assuring the
fairness and accuracy of civil commitment proceedings. Id. at 1089. The court
noted that the legislature mandated representation by counsel in civil
commitment proceedings, and the State has a strong interest in enforcing that
statutory requirement. Id. at 1090. The Maine Supreme Court reached the same
conclusion. In re Penelope W., 19 A.3d 813, 815 (Me. 2011) (rejecting right to
self-representation in civil commitment hearings). The State of Iowa has the 17
same interest in enforcing chapter 229’s requirement that respondents be
represented by counsel.
The In re G.G. court also emphasized the circularity problem inherent in
allowing self-representation in an involuntary commitment hearing:
[A] mental health patient who represents him or herself and who is adjudicated in need of commitment or medication would then be in a position to challenge the initial waiver of counsel as not knowing, intelligent or voluntary and thereby claiming a right to a new hearing with counsel.
165 A.3d at 1090. The district court raised the same concern about V.H.’s claim.
Recognizing a right to self-representation in a Chapter 229 proceeding would
require a separate determination of the respondent’s competency to waive
counsel. See State v. Stephenson, 608 N.W.2d 778, 782–83 (Iowa 2000) (en banc)
(reversing a criminal conviction when the district court failed to determine the
defendant’s mental competency to waive his right to counsel through an
appropriate colloquy). As the In re G.G. court concluded, the “lack of finality that
is threatened by a continuous review of a mental-health patient’s competency to
waive counsel also implicates other government interests, including expedient
resolution of cases . . . and the maintenance of an effective and uninterrupted
treatment plan for the patient.” 165 A.3d at 1090. In analyzing the third factor, the In re G.G. court concluded that a patient’s
self-representation would not reduce the risk of an erroneous outcome, stating
that “[n]umerous courts have commented that, in most cases, the right of
self-representation is the equivalent of a right to a poor defense.” Id. (quoting
Conservatorship of Joel E., 33 Cal. Rptr. 3d at 710). “Rather than enhancing the
fairness or accuracy of a proceeding, allowing a mental-health patient to
represent him or herself runs the risk of undermining the accuracy of the 18
proceeding.” Id. at 1091. We agree that this observation is true “in most cases.”
Id. at 1090.
Several courts have allowed self-representation in civil mental health
commitment proceedings under their state constitution. See, e.g., In re Det. of
J.S., 159 P.3d 435, 440 (Wash. Ct. App. 2007) (applying state constitutional
provision expressly allowing self-representation); In re S.Y., 469 N.W.2d 836, 840
(Wis. 1991) (allowing waiver of right to counsel in civil commitment proceeding
based on state constitutional provision expressly allowing self-representation).
But V.H. failed to preserve any claimed right under the Iowa Constitution, so
those decisions are inapposite.
Other courts have allowed self-representation in civil mental health
commitment proceedings through statutory construction. See, e.g., In re
Jesse M., 170 P.3d 683, 686, 688 (Ariz. Ct. App. 2007) (holding that “the
intended beneficiary of a statute may waive its benefit” so long as they are
mentally competent to make that decision); In re Civ. Commitment of D.Y.,
95 A.3d 157, 160–61 (N.J. 2014) (“Because we resolve this case by statutory
construction, we do not reach the Sixth Amendment and due process issues
raised by D.Y.”); In re R.Z., 415 N.W.2d 486, 488 (N.D. 1987) (“[A] respondent in a mental health proceeding may waive counsel and assert the right to self-
representation, only if the waiver is knowing and intelligent and voluntary and
only if it appears on the record.”). As discussed above, we construe Iowa Code
chapter 229 to require counsel, and we distinguish these cases on that basis. We
find more persuasive the Vermont and Montana opinions that reviewed the
foregoing decisions and declined to follow them. See In re G.G., 165 A.3d at 1087;
In re S.M., 403 P.3d at 328–29.
More recently, another court construed its state civil commitment statute as implicitly allowing waiver of counsel based on the statute’s conditional 19
language (“if represented by counsel”). In re Arthur A., 457 P.3d 540, 545–47
(Alaska 2020) (emphasis added) (quoting Alaska Stat. § 47.30.725(f)). Such
conditional language is not found in Iowa Code chapter 229’s provisions
requiring representation by counsel, and we distinguish this Alaska precedent
for that reason.
We hold that V.H. does not have a procedural due process right under the
Fourteenth Amendment to waive the attorney mandated in Iowa Code
chapter 229 and represent himself. We note that V.H. was able to consult with
his attorney, attend the hearings in person, and make his own statement to the
court. We affirm the district court’s ruling denying V.H.’s motion to proceed
pro se.
B. The District Court’s Factual Findings Supporting V.H.’s
Commitment Are Supported by Substantial Evidence. Our cases require the
State to prove a “recent overt act, attempt or threat” to establish that V.H. is a
danger to himself or others justifying his civil commitment. In re J.P., 574 N.W.2d
at 344 (quoting In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986)). V.H. argues his
headbanging the week before the district court hearing does not qualify because
he did not injure himself on that occasion. The State responds that “[t]his was not a onetime event, because in the past, there were injuries and bleeding.” We
agree with the State and conclude that the district court’s “endangerment”
finding is supported by substantial evidence. That finding is binding on appeal.
Id. at 342.
Our review of the record confirms V.H. had a long history of headbanging,
at times resulting in bleeding and injury, with the most recent headbanging
occurring on May 17, 2022, the week before the district court found he was a
danger to himself. The district court did not view the May 17 headbanging incident in isolation, nor do we. Indeed, V.H. was placed on suicide watch in the 20
IMCC no less than eight times that spring. The district court’s findings are
supported by the testimony of V.H.’s treating psychiatrist, Dr. Keller.
A person may be involuntarily committed if they are deemed to possess a
“serious mental impairment” or are “seriously mentally impaired.” Iowa Code
§§ 229.1(20), .6. Section 229.1(20) defines “serious mental impairment.”5 This
definition has three elements: the person must be (1) “afflicted with a mental
illness”; (2) “lack ‘sufficient judgment to make responsible decisions with respect
to his or her hospitalization or treatment’ ”; and (3) “likely, if allowed to remain
at liberty, to inflict physical injury on [the person’s self] or others or to inflict
emotional injury on the designated class of persons.” Mohr, 383 N.W.2d at 541
(quoting In re Oseing, 296 N.W.2d 797, 799 (Iowa 1980)).
5Iowa Code section 229.1(20) provides:
“Seriously mentally impaired” or “serious mental impairment” describes the condition of a person with mental illness and because of that illness lacks sufficient judgment to make responsible decisions with respect to the person’s hospitalization or treatment, and who because of that illness meets any of the following criteria: a. Is likely to physically injure the person’s self or others if allowed to remain at liberty without treatment. b. Is likely to inflict serious emotional injury on members of the person’s family or others who lack reasonable opportunity to avoid contact with the person with mental illness if the person with mental illness is allowed to remain at liberty without treatment. c. Is unable to satisfy the person’s needs for nourishment, clothing, essential medical care, or shelter so that it is likely that the person will suffer physical injury, physical debilitation, or death. d. Has a history of lack of compliance with treatment and any of the following apply: (1) Lack of compliance has been a significant factor in the need for emergency hospitalization. (2) Lack of compliance has resulted in one or more acts causing serious physical injury to the person’s self or others or an attempt to physically injure the person’s self or others. 21
The third element, known as the “endangerment element,” see In re J.P.,
574 N.W.2d at 344, requires the threat the patient poses to himself or another
“be evidenced by a ‘recent overt act, attempt[,] or threat.’ ” In re Mohr, 383 N.W.2d
at 542 (quoting Stamus v. Leonhardt, 414 F. Supp. 439, 451 (S.D. Iowa 1976)).
The element “requires a predictive judgment, based on prior manifestations but
nevertheless ultimately grounded on future rather than past danger.” In re J.P.,
574 N.W.2d at 344 (quoting In re Mohr, 383 N.W.2d at 542). “Our task is to
determine whether there is substantial evidence to support [the district court’s]
finding.” In re Foster, 426 N.W.2d 374, 377 (Iowa 1988). V.H. challenges only this
endangerment element.
The judicial hospitalization referee’s April 6, 2022 order found that the
State met its burden of proving dangerousness. The referee described V.H. as
exhibiting a propensity “to act out and act impulsively,” as shown by him
“banging his head causing bleeding or brain damage.” The referee further noted
that V.H.’s agitation, acting out, and headbanging caused him to be put on
suicide watch eight times since the beginning of February. The referee stated
that V.H. admitted to banging his head.
The district court, in its de novo review, affirmed the referee’s finding of dangerousness. At the district court hearing, Dr. Keller testified that a week
before his testimony, V.H. had another episode where he became upset and
frustrated, resulting in V.H. banging his head out of frustration over not receiving
a phone call. Dr. Keller testified about V.H.’s multiple reported instances of
headbanging in the past, sometimes resulting in injuries and bleeding. And V.H.
admitted in his own statement at the hearing that “sometimes” he bangs his
head.
The “overt act” must indicate “past aggressive behavior or threats” that manifest “the probable commission of a dangerous act” by the respondent “that 22
is likely to result in physical injury.” In re Foster, 426 N.W.2d at 378. Here, V.H.’s
headbanging falls into the category of aggressive behavior that did result in
physical injury. The district court’s factual findings are supported by substantial
evidence. We therefore affirm the district court’s commitment ruling.
IV. Disposition.
For these reasons, we affirm the district court’s rulings denying his motion
to represent himself and requiring his hospitalization within the IMCC.
AFFIRMED.