IN THE SUPREME COURT OF IOWA No. 08–0255
Filed September 4, 2009
ROBERT PAUL FORMARO,
Appellant,
vs.
POLK COUNTY, IOWA; CITY OF ANKENY, IOWA and STATE OF IOWA,
Appellees.
Appeal from the Iowa District Court for Polk County, Arthur E.
Gamble, Judge.
Plaintiff seeks declaratory judgment that application of state sex
offender residency restrictions is unconstitutional as to him.
AFFIRMED.
Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Parrish
Gentry & Fisher, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant
Attorney General, for appellee State.
John P. Sarcone, Polk County Attorney, and Michael B. O’Meara
and Roger J. Kuhle, Assistant Polk County Attorneys, for appellee Polk
County.
Harry Perkins, III and Jason W. Miller of Patterson Law Firm,
L.L.P., Des Moines, for appellee City of Ankeny. 2
APPEL, Justice.
In this case, we are again called upon to consider constitutional
challenges to Iowa Code section 692A.2A (2005), 1 commonly known as
the 2000-foot rule, which limits places where certain sex offenders may
reside within the state. The appellant sought a declaratory judgment
that Iowa Code section 692A.2A violates his state and federal
constitutional rights because it: (1) infringes upon his right to travel and
freedom of association, (2) utilizes terms that are impermissibly vague or
overbroad in violation of due process, (3) is an unconstitutional bill of
attainder, and (4) is an ex post facto law. For the reasons expressed
below, the district court judgment dismissing each of these claims is
I. Factual and Procedural Background.
At age fifteen, Robert Formaro was found as a juvenile to have
committed sexual abuse in the second degree against another minor.
The Polk County Juvenile Court ordered Formaro not be placed on the
sex offender registry for the offense because the court found that there
was a low risk that Formaro would reoffend.
Two years later, the plaintiff participated in a burglary of a home. While an adult resident of the burglarized home was sexually assaulted,
Formaro did not participate directly in the assault. Formaro pled guilty
to burglary, received an indeterminate sentence of ten-years
imprisonment, and was incarcerated at the Mt. Pleasant Correctional
1Duringthe pendency of this action, Polk County filed a motion to dismiss it as a party due to the Iowa General Assembly’s significant changes to Iowa Code chapter 692A, including the repeal of section 692A.2A. 4 Iowa Legis. Serv. 126, § 31 (West 2009). We, nevertheless, do not believe the legislative action moots Formaro’s claim. The 2000-foot rule was substantially readopted. Id. § 14. While minor structural changes exist, we do not believe any of the revisions are material to the claims presented here. As such, we deny Polk County’s motion to dismiss and address the merits of Formaro’s constitutional arguments. 3
Facility. While at Mt. Pleasant, Formaro was not required to participate
in sex offender treatment programs, but was placed upon the sex
offender registry.
When Formaro was paroled in November 2004, he lived with his
parents in Ankeny with the approval of his probation officer. In
September 2005, however, David Lockridge, Formaro’s new parole officer,
discovered that Formaro’s parents’ home was within 2000 feet of an
elementary school. As a result, Lockridge informed Formaro that by
living at his parents’ home he was in violation of the 2000-foot rule. In
October, Formaro was served with a notice of violation under Iowa Code
section 692A.2A and given five days to move out of his parents’ home.
After receiving the notice, Formaro’s mother, Barbara Leonard, began to
search for alternative housing while Formaro himself continued to work
at the family’s restaurant, where he earned between $600 and $1200 per
month.
After searching for eight to twelve hours for a residence in Ankeny,
Leonard located only one apartment that fell outside the 2000-foot
limitations, but there were no vacancies. She then began to search in
Altoona, but after eight hours of effort could find no available rental
properties that were outside the 2000-foot limitations. Leonard then
turned to Des Moines, where she found one acceptable rental property.
Formaro’s application, however, was rejected because the landlord
considered Formaro to be an undesirable tenant due to his burglary
conviction. She did not look in unincorporated areas of Polk County
because “they just don’t have apartments in these unincorporated areas
much . . . .” Finally, Leonard looked in West Des Moines, but was also
unable to find a rental property that complied with that city’s restrictions
for persons listed on the sex offender registry. 4
While Leonard was unable to secure housing for Formaro,
Lockridge found him a place to live in a Des Moines motel for $800 a
month. After the evidentiary hearing in this matter, Formaro secured
housing at an apartment in Des Moines for $400 per month.
In November 2005, Formaro filed a four-count petition in district
court against the State of Iowa, Polk County, and the City of Ankeny. In
Count I, Formaro sought a declaration that he was not subject to the
2000-foot rule. In Count II, he sought a declaration that the 2000-foot
rule was unconstitutional on its face and as applied to him. In Count III,
Formaro sought monetary relief under federal law. In Count IV, Formaro
sought injunctive relief and requested an emergency hearing to address
his residency restrictions. Each defendant filed a motion to dismiss the
petition.
After a hearing in December, the district court denied Formaro’s
application for injunctive relief. The district court noted that Formaro
had found a permissible residence. The fact that Formaro might have to
pay more than he would like was not sufficient irreparable harm.
Further, based on legal precedents from this court and the Eighth
Circuit, the district court concluded that Formaro had not shown a
strong likelihood of success on the merits of his claims. The district
court, however, denied the motions to dismiss Polk County and the City
of Ankeny.
The State filed a motion to reconsider, noting that the district court
failed to address its separate motion to dismiss. The district court in
January entered an order dismissing Count I against all defendants and
Count III against the State, but allowing the remaining claims to go
forward. 5
With the consent of the parties, the case was submitted to the
district court on the record established at the December hearing on the
application for a temporary injunction. The district court held that
Formaro’s constitutional claims were without merit. Formaro filed a
timely notice of appeal.
II. Standard of Review.
The issues remaining on appeal concern the constitutional
application of sexual offender residency restrictions to Formaro. The
court reviews constitutional claims de novo. State v. Groves, 742 N.W.2d
90, 92 (Iowa 2007).
III. Discussion.
A. Right to Travel and Freedom of Association. Almost half a
century ago, the United States Supreme Court recognized a federal
constitutional right to interstate travel. United States v. Guest, 383 U.S.
745, 758, 86 S. Ct. 1170, 1178, 16 L. Ed. 2d 239, 249 (1966). The
textual source for the fundamental right, however, is uncertain. At
times, it has been attributed to the Privileges and Immunities Clauses of
Article IV and the Fourteenth Amendment and to the Commerce Clause
or has been inferred from the federal structure of government created by
the Federal Constitution. Att’y Gen. v. Soto-Lopez, 476 U.S. 898, 902,
106 S. Ct. 2317, 2320, 90 L. Ed. 2d 899, 905 (1986).
The fundamental right to travel has three recognized components.
Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct. 1518, 1525, 143 L. Ed. 2d
689, 702 (1999). First, a citizen of one state may enter and leave another
state. Id. Second, a citizen of one state has “the right to be treated as a
welcome visitor rather than as an unfriendly alien when temporarily
present” in another state. Id. Third, a citizen of one state who elects to
become a permanent resident of another state has the right to be treated 6
like other citizens of the second state. Id. In addition, the freedom to
travel is sometimes seen as an essential means of effectuating other
rights, such as freedom of association and freedom of speech. Aptheker
v. Sec’y of State, 378 U.S. 500, 517, 84 S. Ct. 1659, 1670, 12 L. Ed. 2d
992, 1004 (1964).
Recognition of the fundamental right to interstate travel has led to
wide speculation regarding the existence of a corresponding right to
intrastate travel. This court, however, has not yet expressly embraced
such a right. In City of Panora v. Simmons, 445 N.W.2d 363 (Iowa 1989),
this court declined to strike down a municipal juvenile curfew law, with
the majority concluding that the “right of intracity travel is not a
fundamental right . . . .” Simmons, 445 N.W.2d at 369 (emphasis added).
Justice Lavorato dissented, noting, “A hallmark of a free society, the right
to travel, is perhaps the most cherished of all our fundamental rights.”
Id. at 371 (Lavorato, J., dissenting).
Several federal circuit courts after Simmons, however, have
recognized a fundamental right to intrastate travel under the federal
constitution. Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir.
2002); Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir. 1990); Lutz v.
City of York, 899 F.2d 255, 268 (3d Cir. 1990). The United States
Supreme Court has yet to explicitly weigh in on the issue, though some
jurists have found support for a federal right to intrastate travel in its
precedent, especially Justice Douglas’s concurrence in Aptheker. See
Simmons, 445 N.W.2d at 371 (Lavorato, J., dissenting).
This court revisited the constitutionality of juvenile curfew statutes
three years after Simmons in City of Maquoketa v. Russell, 484 N.W.2d
179 (Iowa 1992). While this court unanimously found that curfew
ordinance unconstitutional, the holding was based on the ordinance’s 7
impermissible infringement on First Amendment freedoms and not
exclusively on a right to intrastate travel. Russell, 484 N.W.2d at 183–
86. Russell stands for the proposition that an ordinance may infringe on
First Amendment freedoms, including the freedom of association, by
restricting intrastate travel. Id. The existence and breadth of a federal
and state constitutional right to intrastate travel thus remains a live
wire.
Formaro invites us to recognize those rights here and argues that
Iowa Code section 692A.2A on its face violates his state and federal right
to intrastate travel and freedom of association. He claims that the
statute effectively prohibits him from traveling to any location where he
may fall asleep within the 2000-foot zone, bars him from participating in
overnight political assemblies, overnight religious assemblies, or any
other overnight lawful assembly, including family gatherings, and
prevents him from accessing medical care by criminalizing any effort to
receive medical services involving the use of anesthetic or overnight stays
in area hospitals, all of which fall within 2000 feet of a protected location.
We conclude that it is not necessary in this case to determine
whether there is a federal or state constitutional right to intrastate travel
because, even if such rights exist, there has been no violation in this
case. As will be demonstrated in the next section, Formaro’s reading of
the sex offender residency statute is too broad. The 2000-foot rule
dictates where Formaro may reside but does not implicate the traditional
protections of the freedom of travel. As noted by the Court of Appeals for
the Eighth Circuit, when addressing the same issue in Doe v. Miller, 405
F.3d 700 (8th Cir. 2005): The Iowa residency restriction does not prevent a sex offender from entering or leaving any part of the State, including areas within 2000 feet of a school or child care 8 facility, and it does not erect any actual barrier to intrastate movement. . . . By contrast, the decisions finding infringement of a fundamental right to intrastate travel have involved laws that trigger concerns not present here— interference with free ingress to and egress from certain parts of a State . . . or treatment of new residents of a locality less favorably than existing residents . . . . Miller, 405 F.3d at 713.
While this court is free to interpret the state constitutional
guarantee of a right to travel differently than federal precedent, we see no
reason to consider doing so in this case. Unlike the minors in Russell,
Formaro is free both day and night to attend political meetings, religious
services, or other gatherings, both in and outside the protected zone,
either individually or collectively. Russell, 484 N.W.2d at 185–86. On its
face, therefore, the 2000-foot rule does not impede Formaro’s freedom of
travel or right to association. See also Weems v. Little Rock Police Dep’t,
453 F.3d 1010, 1016–17 (8th Cir. 2006) (upholding an Arkansas sex
offender registration statute that prohibited high-risk, registered sex
offenders from living within 2000 feet of a school or daycare center
against a claim that the statute violated the constitutional right to
intrastate travel).
B. Vagueness. The Due Process Clause of the United States
Constitution provides that no State shall “deprive any person of life,
liberty, or property without due process of law.” U.S. Const. amend. XIV,
§ 1. “Among other things, the Due Process Clause prohibits enforcement
of vague statutes under the void-for-vagueness doctrine.” State v. Nail,
743 N.W.2d 535, 539 (Iowa 2007). A similar prohibition has been
recognized under the Iowa due process clause found in article I, section 9
of the Iowa Constitution. State v. Todd, 468 N.W.2d 462, 465 (Iowa
1991). As we recently noted, 9 There are three generally cited underpinnings of the void-for- vagueness doctrine. First, a statute cannot be so vague that it does not give persons of ordinary understanding fair notice that certain conduct is prohibited. Second, due process requires that statutes provide those clothed with authority sufficient guidance to prevent the exercise of power in an arbitrary or discriminatory fashion. Third, a statute cannot sweep so broadly as to prohibit substantial amounts of constitutionally-protected activities, such as speech protected under the First Amendment.
Nail, 743 N.W.2d at 539. In assessing whether a statute is void-for-
vagueness this court employs a presumption of constitutionality and will
give the statute “ ‘any reasonable’ ” construction to uphold it. State v.
Millsap, 704 N.W.2d 426, 436 (Iowa 2005) (quoting State v. Hunter, 550
N.W.2d 460, 462 (Iowa 1996), overruled on other grounds by State v.
Robinson, 618 N.W.2d 306, 311–12 (Iowa 2000)).
Formaro asserts that section 692A.2A is void for vagueness
because the term “reside” does not adequately convey what conduct is
prohibited and invites arbitrary enforcement. While the term “residing”
is not explicitly defined in section 692A.2A, section 692A.1(8) defines
“residence” as “the place where a person sleeps, which may include more
than one location, and may be mobile or transitory.” Formaro claims
this statutory definition of “residence” does not end the confusion; it
increases it. Formaro claims that the definition of “residence” includes
mobile and transitory locations, thereby removing the notion of
permanency ordinarily associated with the term “reside.”
In essence, Formaro claims that the statute explicitly rejects the
common understanding of “reside” and then fails to replace it with a
definition that can be widely understood and equitably enforced. People
reading the statute thus cannot glean what conduct is prohibited.
Moreover, Formaro asserts that the definition of “sleeps” is also vague as
it is unclear whether this term encompasses a durational requirement, 10
includes only sleep at a fixed location, encompasses any loss of
consciousness so as to prevent the use of general anesthesia, or includes
sleep at a public place.
We find Formaro’s reading of the statute contrary to its plain
meaning and contrary to legislative intent. Just as the district court, we
believe use of the term “sleeps” in section 692A.1(8) in connection with
the definition of “reside” means habitual sleep in a home. Note that the
legislature did not define a residence as a place where a person could
sleep or has slept which would be more consistent with Formaro’s
construction. Instead, the legislature used the term “sleeps,” which
connotes more than a singular occurrence. Moreover, reading the
statute as a whole, it is clear that the legislature wanted to prevent sex
offenders from living within 2000 feet of a school or child care center, not
casual sleep within a prohibited zone. The use of the term “mobile” and
“transitory” in Iowa Code section 692A.1(8) modifies the term “residence,”
not “sleeps,” and was designed to include within its scope vehicles,
mobile homes, or shelters.
Rather than reject the common understanding of residence, as
Formaro suggests, we believe that the statutory definition incorporates a
permanency notion. While it is true that under our construction a sex
offender could have more than one residence, instead of making the
statute unconstitutionally vague, we believe this was the clear intention
of the legislature. By tying the definition of “residence” to habitual sleep,
the legislature was attempting to close a potential loophole in the statute
which would allow a registered sex offender from establishing an “official”
residence outside the prohibited zone while living within a protected
area. 11
Our reading of Iowa Code sections 692A.1(8) and 692A.2A is
consistent with other jurisdictions that have considered the issue in the
context of sex offender statutes. See Sellers v. State, 935 So. 2d 1207,
1213 (Ala. Crim. App. 2005) (holding use of term “living accommodation”
in adult criminal sex offender statute not unconstitutionally vague); State
v. Sturch, 921 P.2d 1170, 1176 (Haw. Ct. App. 1996) (finding phrase
“sleeping place” not vague as it meant place of human habitation).
C. Overbreath. As noted above, overbreath claims are derived
from the Due Process Clause of the Fourteenth Amendment to the United
States Constitution and article I, section 9 of the Iowa Constitution. See
Russell, 484 N.W.2d at 181. Overbreath analysis applies where a statute
sweeps too broadly and substantially chills First Amendment rights. Id.
Formaro claims that the 2000-foot rule is overbroad and impinges
on the exercise of his First Amendment freedoms by preventing him from
participating in overnight political, religious, family, or other assemblies.
He also claims it will prevent him from receiving necessary medical
treatment, which he claims implicates First Amendment rights.
We do not agree. As noted previously, under a proper reading of
section 692A.2A, Formaro can lawfully attend an all-night religious
service, family gatherings, or political rallies even within a protected area.
While the 2000-foot rule impinges on where Formaro may establish a
residence, there is no fundamental right to live where you want and
certainly not one based upon the First Amendment. Miller, 405 F.3d at
714; People v. Leroy, 828 N.E.2d 769, 776 (Ill. App. Ct. 2005) (holding
statute which prohibited child sex offenders from living within 500 feet of
school was not unconstitutionally overbroad as statute did not prevent
him from living with family, but merely restricted where he was permitted
to do so, nor did it prohibit the offender from visiting with his family on a 12
daily basis). As Formaro’s First Amendment freedoms are not implicated
by section 692A.2A, his overbreath claim must fail.
D. Bill of Attainder. Both the United States Constitution and the
Iowa Constitution prohibit the legislative enactment of bills of attainder.
U.S. Const. art. I, § 10 (“No State shall . . . pass any Bill of Attainder
. . . .”); Iowa Const. art. I, § 21 (“No bill of attainder . . . shall ever be
passed.”). A bill of attainder is a legislative act that inflicts punishment
on a particular individual or readily identifiable group without a judicial
trial. Atwood v. Vilsack, 725 N.W.2d 641, 651 (Iowa 2006). “The danger
of such a law is that it deprives the accused of the protection afforded by
judicial process.” State v. Swartz, 601 N.W.2d 348, 351 (Iowa 1999). “A
bill of attainder requires three elements: specificity as to the target of the
legislation, imposition of punishment, and the lack of a judicial trial.”
State v. Phillips, 610 N.W.2d 840, 843 (Iowa 2000).
This court has already determined that the residency restrictions
found in section 692A.2A do not constitute a bill of attainder. State v.
Willard, 756 N.W.2d 207, 212 (Iowa 2008); Wright v. Iowa Dep’t of Corrs.,
747 N.W.2d 213, 218 (Iowa 2008). In Willard, this court determined that
although the 2000-foot rule targeted a readily-identifiable group—sex
offenders whose victims were minors—the chapter did not constitute a
bill of attainder as the residency restrictions did not constitute
punishment. Willard, 756 N.W.2d at 212. Additionally, we held that
section 692A.2A did not constitute a bill of attainder as those subject to
the restrictions were afforded due process of law. Wright, 747 N.W.2d at
218. In Wright the court noted that an underlying conviction was established prior to imposition of the restrictions. Here, Wright had been afforded a criminal trial in 1977 on the charge of statutory rape. Section 692A.2A applies to him only because of this conviction . . . . 13
Id. Because those affected by the residency restrictions were subject to
judicial intervention in the underlying criminal charge, no bill of
attainder could be found. Id.
Formaro acknowledges this prior precedent. He, nevertheless,
seeks to distinguish his case because unlike Wright, he was subject to
the 2000-foot rule due to a juvenile adjudication and not an adult
criminal conviction. Because juvenile proceedings do not incorporate the
full panoply of constitutional rights which adhere in a criminal
prosecution, Formaro asserts that he has not been afforded a “judicial
trial” as required by our prior precedent.
Even if we were to assume that Formaro was correct, his bill-of-
attainder claim nevertheless must fail. As will be seen in the next
section, on the record presented, Formaro has not met his burden of
showing that the residency restrictions in section 692A.2A constitute
punishment.
E. Ex Post Facto. Both the federal and state constitutions
contain Ex Post Facto Clauses which “ ‘forbid the application of a new
punitive measure to conduct already committed,’ ” and prohibit a statute
which “ ‘makes more burdensome the punishment for a crime after its
commission.’ ” Schreiber v. State, 666 N.W.2d 127, 129 (Iowa 2003)
(quoting State v. Corwin, 616 N.W.2d 600, 601 (Iowa 2000)); see also U.S.
Const. art. I, § 10; Iowa Const. art. I, § 21. “[T]he prohibition of ex post
facto laws applies only to penal and criminal actions.” State v. Flam, 587
N.W.2d 767, 768 (Iowa 1998). As a result, “[p]urely civil penalties . . . are
not subjected to such restrictions,” Corwin, 616 N.W.2d at 601, “even
where the civil consequences are ‘serious’ in nature,” Hills v. Iowa Dep’t
of Transp., 534 N.W.2d 640, 641 (Iowa 1995). 14
“In deciding whether a statute violates the Ex Post Facto Clause by
imposing prohibited punishment, the first task is to consider the intent
of the legislature.” State v. Seering, 701 N.W.2d 655, 667 (Iowa 2005). If
the legislature intended the statute to impose criminal punishment, this
intent controls, so the law is considered to be punitive in nature. Id.
Alternatively, if the legislature intended the statute to be civil and
nonpunitive, the legislative intent does not control. Id. In such
situations, this court must look to the statute to determine whether it is
“ ‘ “so punitive either in purpose or effect as to negate” ’ the nonpunitive
intent.” Id. (quoting Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140,
1147, 155 L. Ed. 2d 164, 176 (2003)). “ ‘ “[O]nly the clearest proof” ’ will
transform what the legislature has denominated a civil regulatory
measure into a criminal penalty.” Miller, 405 F.3d at 718 (quoting Smith,
538 U.S. at 92, 123 S. Ct. at 1147, 155 L. Ed. 2d at 176).
We addressed whether section 692A.2A violated the prohibition on
ex post facto laws in Seering. In Seering, a divided court determined that
the legislature’s intent in enacting the 2000-foot rule was not punitive.
Seering, 701 N.W.2d at 667. The court then went on to apply the factors
articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69, 83
S. Ct. 554, 567, 9 L. Ed. 2d 644, 661 (1963), to determine if the law
nevertheless had a punitive effect. Id. After considering whether the law has been historically and traditionally considered to be punishment, whether it promotes the traditional goals of punishment, whether it imposes an affirmative disability or restraint, whether it has a rational connection to some nonpunitive purpose, and whether it is excessive with respect to the nonpunitive purpose[,]
this court concluded that under the record presented, it could not find
that the 2000-foot rule imposed criminal punishment. Seering, 701
N.W.2d at 667–68. Thus it did not violate the prohibition on ex post 15
facto laws. Id. The court reached this conclusion, in part, based on its
determination that the statute did not amount to banishment. Id. at
667. The banishment holding in Seering has been affirmed in
subsequent cases. See, e.g., Willard, 756 N.W.2d at 211; Wright, 747
N.W.2d at 218.
On appeal, Formaro asserts that the time has come for this court
to reevaluate Seering. In particular, Formaro notes that since Seering,
municipalities and counties have adopted ordinances, including two of
the defendants in this case, further restricting the permissible residency
zones for sex offenders. The combined effect of these efforts, Formaro
asserts, now approaches banishment, making section 692A.2A effectively
punitive.
Under the record presented to the district court, we cannot agree.
While Formaro mentions the effect of the Polk County and City of Ankeny
ordinances, he has not challenged the legality of either legislation. In
this appeal we are presented solely with the constitutionality of the state
sex offender residency restrictions.
Additionally, much like in Seering, Formaro asserts that the
applicable standard for determining whether the 2000-foot rule is
punitive depends largely on whether the law amounts to traditional
banishment. But see State v. Pollard, 908 N.E.2d 1145, 1151 (Ind. 2009)
(finding residency restrictions punitive, in part, due to their similarity to
probation requirements, not banishment). Under the record presented
here we cannot conclude that Formaro will be subject to banishment
under section 692A.2A. Although Formaro’s mother testified that she
spent several hours looking for a suitable residence for her son, Formaro
was quickly able to find permissible housing after speaking to his
probation officer. 16
While Formaro estimated that almost ninety percent of the state
falls within the exclusion zones, and certain maps were admitted which
tend to substantiate that claim, the court was provided with no
information as to what housing is available to registered sex offenders
outside these zones. The record establishes that Formaro was able to
secure housing relatively quickly after consulting with an individual
knowledgeable about such ordinances. Under these circumstances,
Formaro has failed to provide a factual basis to support his banishment
claim. Without such a basis we cannot conclude that section 692A.2A
violates the prohibition on ex post facto laws.
IV. Conclusion.
For the reasons expressed above, the decision of the district court
denying Formaro’s action for declaratory judgment is affirmed.
All justices concur except Wiggins, J., who dissents. 17
08–0255, Formaro v. Polk County
WIGGINS, Justice (dissenting).
I continue to believe Iowa Code section 692A.2A violates the Ex
Post Facto Clauses of the United States and Iowa Constitutions for the
reasons set forth in my dissent in State v. Seering, 701 N.W.2d 655, 671–
72 (Iowa 2005) (Wiggins, J., concurring in part and dissenting in part).
Therefore, I would reverse the district court’s ruling on these grounds.