IN THE SUPREME COURT OF IOWA No. 21 / 05-0845
Filed August 17, 2007
ROBERT SWANSON,
Appellant,
vs.
CIVIL COMMITMENT UNIT FOR SEX OFFENDERS (CCUSO) and IOWA DEPARTMENT OF HUMAN SERVICES,
Appellees.
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
A patient in the civil commitment unit for sex offenders appeals a
decision dismissing his petition for judicial review. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Matthew S. Sheeley,
Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, and Mark Hunacek, Deputy
Attorney General, for appellees. 2
WIGGINS, Justice.
In this appeal, Robert Swanson, a patient in the Civil Commitment
Unit for Sexual Offenders (CCUSO), seeks a ruling that the district court
erred in denying his petition for judicial review. He claims he meets the
definition of an “aggrieved person” under Iowa Code chapter 17A (2003) and
that to deny him a contested case hearing violates his due process rights.
Because we agree with the district court that Swanson is not an aggrieved
person under chapter 17A and to deny him a contested case hearing does
not violate his due process rights, we affirm the judgment of the district
court dismissing his petition for judicial review.
I. Background Facts and Proceedings.
The Iowa department of human services (DHS) operates CCUSO.
DHS presently houses Swanson in CCUSO’s facility. CCUSO “was created
by the 1998 Sexually Violent Predators Act of Iowa to provide secure,
inpatient treatment for sexual offenders who are believed to be a high risk
for sexually reoffending.” Iowa Dep’t of Human Servs., Civil Commitment
Unit for Sexual Offenders,
http://www.dhs.state.ia.us/dhs_organization/other/civil_commitment.html
(2000) (last visited Aug. 14, 2007) [hereinafter DHS, CCUSO].
Patients who are housed at the CCUSO facility are civilly committed
under Iowa’s Sexually Violent Predator Act, chapter 229A of the Iowa Code.
The Iowa legislature amended chapter 229A in 2002 directing DHS to
“adopt rules pursuant to chapter 17A necessary to administer this chapter.”
Iowa Code § 229A.15B (2003). Currently, DHS has not promulgated any
rules. Instead, CCUSO developed a “Patient Handbook and Orientation
Manual.” The handbook provides the rules and policies of CCUSO. 3
The handbook begins by explaining the mission and overview of the
program. The mission of CCUSO is “to provide treatment for persons
involuntarily committed to [CCUSO’s] care as sexual offenders who are
deemed likely to reoffend. Treatment is the key objective of this program.”
CCUSO patients “are afforded the same rights as other civilly committed
patients.” The handbook presents CCUSO patients with twenty-four
separate and distinct rights. Some of these rights are:
• the rights of full citizenship except as may be specifically limited by the constitution or statute;
• the right to file application for a writ of habeas corpus and the right to petition the court for release; and
• the right to an attorney and to judicial review of the hospitalization.
According to DHS, “[t]he program is structured to provide intrinsic
incentives to motivate cooperation with treatment programming.” DHS,
CCUSO. In order to accomplish this goal, the handbook states CCUSO
created a phase system which “recognize[s] patients’ progress in the
program and [ ] provide[s] further motivation to cooperate with program
activities.” The handbook explains the five phases of the program. Each phase
adheres to a general time line of progression from one phase to the next.
The first phase is the assessment and observation phase. The handbook
describes this phase as the time patients and program staff have an
opportunity to become acquainted and to develop a clear understanding
about program expectations and rules. A patient is able to move to phase
two once the patient has demonstrated a stable and cooperative behavioral
pattern and completes each of the following requirements: (1) completion of
all psychological testing; (2) admission of some sexual offense or completion 4
of a clean polygraph; (3) completion of relaxation training and basic
cognitive skills training; (4) orientation to the program and completion of the
patient handbook; (5) thirty days of good behavior free from any major
infractions; and (6) signing a phase two contract with request for placement
in phase two.
In the second phase, the patient enters the core phase. The patient
participates in a minimum one-year curriculum of psycho-educational
groups. These groups are designed to teach concepts and skills that are
fundamental to learning to control sexual impulses. In order to advance to
level three, the patient must pass an oral or written exam over the
curriculum and complete the following requirements: (1) satisfactory
completion of four quarters of psycho-educational classes; (2) pass
polygraph exams concerning minor victims, adult victims, and paraphilias;
(3) freedom from major behavioral reports and close supervision for ninety
days; (4) no ratings lower than three on the last ninety-day review; and
(5) signing a phase three contract and submitting a written request for
placement in phase three.
In the third phase, the patient enters the advanced phase. In this
phase, the patient will work on applying the principles and concepts learned
in phase two and achieving the goals established in an individualized
treatment plan. Basic requirements for advancement are: (1) no ratings
lower than five on the last ninety-day review; (2) absence of any major
behavioral reports for the last four months; (3) completion of specific offense
polygraphs, if requested; (4) development of an individualized treatment
plan; (5) completion of victim sheets and victim letters; and (6) signing a
phase four contract and submitting a written request for placement in
phase four. 5
If the patient advances from phase three, the patient enters phase
four, the honor phase. This phase requires the patient to demonstrate a
high level of cooperation, insight, motivation, and application of the basic
principles taught in the program. The patient is expected to model
appropriate behavior and be able to function as a peer facilitator or leader
in group discussion. In order to move to the fifth phase, the patient must
meet the following requirements: (1) no ratings less than eight on the last
ninety-day review; (2) absence of any major behavioral reports for the last
six months; (3) completion of a detailed relapse prevention plan; (4)
successful completion of a polygraph exam regarding recent sexual
fantasies and behaviors; (5) demonstration of good sexual control and
nondeviant sexual responses and absence of problematic sexual behavior
for one year; (6) submission of a written request for phase five placement
and signing the phase five contract; and (7) placement in a transitional
living facility by the committing court.
Finally, the patient enters the fifth phase, the transition phase. Here,
the patient is gradually given increasing opportunities to live in less
restrictive settings. The patient is monitored closely, assessed clinically,
and provided support as the patient takes on increasing responsibility for
the patient’s own care. A patient is recommended to the court for final
release from the program only after meeting the following requirements:
(1) demonstrate the establishment of a strong social support network;
(2) successfully maintain employment, or participation in a volunteer
program if retired or unable to work, for at least one year; (3) demonstrate
adequate financial support; (4) maintain contact with transitional
counselors for two years; (5) fulfill all requirements included in the patient’s
release contract for at least two years; (6) submit to and pass all random 6
physiological assessments requested by the transitional counselors; and
(7) complete a final discharge interview with the CCUSO staff and be
recommended for release.
As one of many disciplinary procedures, CCUSO created a level
system to provide rewards and increasing privileges to patients who
participate in the treatment program and remain free of behavioral
problems. The expectation of the CCUSO program is that patients who
avoid behavioral reports and suspensions will advance rapidly to level four.
As the level increases, so does the extent of the privileges. For example, a
patient on level one may only make emergency phone calls and is only
allowed legal visits without the prior approval of the director or his designee.
In contrast, a patient who has advanced to level four is allowed unrestricted
phone calls, except during treatment times, and contact visits twice a week
with no approval specified.
In order for a patient to move from level one to level two, the patient
must maintain seven consecutive days of good behavior, free of rule
violations and suspensions. To move from level two to level three, the
patient must maintain fourteen continuous days of good behavior, free of all
unit rule infractions and suspensions. To move from level three to level
four, the patient must maintain sixty days of continuous good behavior, free
of infractions and suspensions.
CCUSO has three levels of behavior rule violations: minor, major, and
felony. Minor violations include such things as violation of property, meal,
medication, mail, clothing, or phone rules set out in the handbook. Major
violations include such things as disobeying an order, disrespect, theft,
misuse of property, disruptive behavior, debt incurrence, or harassment. 7
Finally, felony infractions include assault, battery, sexual assault, escape or
attempted escape, possession of dangerous contraband, or arson.
The handbook explains to the patient how violations are assessed and
appealed. It states:
Violations of program rules can result in a suspension of level privileges, a loss of canteen allowance, loss of privileges due to placement in a lower level in the program, or other behavioral consequences depending upon the violation. The decision regarding such consequences will depend upon the type of violation but will generally be made by the Behavioral Investigator in accordance with CCUSO policies and procedures. . . . Rule violations will generally result in a suspension of level privileges by being restricted to your room for 2 to 8 hours without receiving a behavioral report. Treatment Program Supervisors reserve the right to increase or decrease sanctions imposed by staff as the facts and circumstances warrant it. Continuing behavior problems can result in additional sanctions, up to and including placement in seclusion. . . . The Investigator will gather the relevant facts and make a decision regarding any consequences deemed appropriate. Such decisions may be appealed to the CCUSO Director or a designee, by the completion of a written appeal that summarizes the basis for the appeal within 3 days of the report. The appeal will be answered in writing by the Director or a designee within ten working days of the decision unless the need for a continuance of the final decision is documented prior to the expiration of the ten working-day period.
Further, patients have access to grievance procedures. A patient first
is to attempt to resolve any concerns about mistreatment with the
individual CCUSO staff who the patient feels acted wrongly. If the
resolution is not satisfactory to the patient, a written grievance can be
submitted to the supervisor. If this is unsatisfactory, the patient can
submit a detailed written grievance to the director or director’s designee
who will make a decision within three weeks of receiving it. There is no
further appeal, but the handbook provides the patient may take the
complaint to the courts if the patient so chooses. 8
From May 8 to November 19, 2003, Swanson was the subject of four
behavioral reports for rule violations. Swanson appealed three behavioral
reports to DHS. He claimed his due process rights were violated and
requested that the department provide him with a contested case hearing.
The State filed motions to dismiss all three of Swanson’s appeals. The
State claimed there was no basis under either Iowa Code chapter 17A, Iowa
Administrative Code 441–chapter 7, or Iowa Administrative Code 481–
chapter 10 to grant Swanson a contested case hearing.1 Swanson resisted the motions to dismiss.
The administrative law judge issued three identical proposed
decisions dismissing each of Swanson’s requests for a contested case
hearing. In each proposed decision the administrative law judge found the
“[h]andbook [does] not expressly provide a CCUSO patient, after exhausting
internal review procedures, with the right to appeal a behavioral report and
disciplinary consequences pursuant to Iowa Code Chapter 17A or 441 IAC
Chapter 7.” The administrative law judge further found Swanson was not
an aggrieved person as contemplated by Iowa Administrative Code chapter
441. However, the administrative law judge recognized he had no authority
to determine whether “by not providing [Swanson] with a contested case
proceeding, [Swanson] is being denied due process” and preserved this
issue for judicial review.
In all three cases Swanson requested review of the administrative law
judge’s proposed decision. In response to this request, DHS adopted the
1After the commencement of this appeal, on May 12, 2004, DHS amended Iowa Administrative Code rule 441–7.5(2)(a)(17) to state “[a] hearing shall not be granted when: [t]he appeal involves patient treatment interventions outlined in the patient handbook of the civil commitment unit for sexual offenders.” Iowa Admin. Code r. 441–7.5(2)(a)(17) (emphasis added). 9
proposed decision of the administrative law judge as its final decision in all
three cases.
Swanson petitioned for judicial review of the agency’s decision and for
equitable and declaratory relief. Relevant to this appeal Swanson claims,
contrary to the administrative law judge’s findings, he is an aggrieved
person for purposes of Iowa Administrative Code rule 441–7.1(9) and DHS’s
action in denying his request for a contested case hearing violates his due
process rights.
The district court affirmed the decision of the agency and dismissed
the petition for judicial review. The district court held Swanson was not
entitled to a contested case hearing because he was not an aggrieved person
as defined by Iowa Administrative Code rule 441–7.1(9). The court also
ruled Swanson’s due process rights were not violated when he was denied a
contested case hearing.
Swanson appeals the decision of the district court to our court.
II. Issues.
Swanson raises two issues on appeal. First, whether Swanson is an
aggrieved person for purposes of contested case review under Iowa
Administrative Code rule 441–7.1(9). Second, whether the denial of his
request for a contested case hearing violates his due process rights.
III. Scope of Review.
Swanson claims the district court’s dismissal of his judicial review
petition was an error of law because the agency’s action is reviewable under
the judicial review provisions of Iowa Code chapter 17A. Therefore, our
review of this claim is for correction of errors at law. Lewis Central Educ.
Ass’n v. Iowa Bd. of Educ. Exam’rs, 625 N.W.2d 687, 689 (Iowa 2001). 10
Additionally, Swanson has raised and preserved constitutional issues
relating to the denial of a contested case hearing. This court reviews
constitutional issues raised in an agency proceeding de novo. ABC Disposal
Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 605 (Iowa 2004). Under
Iowa Code section 17A.19(10)(a) this court can grant relief from agency
action if we determine a person’s substantial rights have been prejudiced
because the agency’s action is unconstitutional on its face or as applied.
Iowa Code § 17A.19(10)(a). This court will not give any deference to the
agency’s view of the constitutionality of its statute or rule because this is
exclusively within the role of the judiciary. ABC Disposal Sys., Inc., 681
N.W.2d at 605 (citing Iowa Code § 17A.19(11)(b)).
IV. Analysis.
A. Whether Swanson is an aggrieved person for purposes of a
contested case review. Iowa Code section 17A.19(1) states: “A person or
party who has exhausted all adequate administrative remedies and who is
aggrieved or adversely affected by any final agency action is entitled to
judicial review thereof under this chapter.” Iowa Code § 17A.19(1). In its
rules, DHS defined “aggrieved person” as:
[A] person against whom the department has taken an adverse action. This includes a person who meets any of the following conditions:
...
9. For mental health and developmental disabilities, a person:
• Whose application for statement payment program benefits or state community mental health or mental retardation service funds has been denied or has not been acted upon in a timely manner. 11 • Who has been notified that there will be a reduction or cancellation of state payment program benefits or state community mental health or mental retardation service funds.
Individuals and providers that are not listed above may meet the definition of an aggrieved person if the department has taken an adverse action against that individual or provider.
Iowa Admin. Code r. 441–7.1(9) (emphasis added).
Neither party contends that DHS’s interpretation of “aggrieved
person” is contrary to section 17A.19(1) or that Swanson does not suffer
from a mental disability as required by the rule.
We will assume for the purposes of this decision, that DHS’s issuance
and investigation of the behavioral reports and the sanctions that follow, are
agency action. Therefore, the question we must decide is whether the
behavioral reports were adverse to or aggrieved Swanson. If so, Swanson is
entitled to a contested case hearing.
Swanson argues he is aggrieved because the long-term consequence
of the major behavioral reports is a delay in his progression from one
treatment phase to another. Moreover, the reports become part of a permanent record while he is in the treatment program. We disagree that
Swanson is aggrieved.
One of the goals of Iowa Code chapter 229A is to provide treatment to
a person placed in CCUSO. In re Detention of Betsworth, 711 N.W.2d 280,
288-89 (Iowa 2006). The handbook states the treatment used by the CCUSO staff is based on the cognitive-behavioral model. The goal of the
treatment is to change a patient’s behavior so the patient no longer suffers
from a mental abnormality, which makes the person likely to engage in predatory acts constituting sexually violent offenses. Successful treatment
allows for the patient’s safe release or placement in a transitional program.
Iowa Code § 229A.8. To achieve this treatment goal, the program consists 12
of a series of phases. The patient is rewarded with advancement from
phase to phase by completing all the requirements of each phase.
A patient’s progress through each phase can be lengthened if the
patient fails to meet a goal of the phase or has behavioral problems. There
is no set time in which a person is expected to complete the program.
Chapter 229A does not require as a prerequisite to entering CCUSO that the
treatment will be successful. In re Detention of Darling, 712 N.W.2d 98, 101
(Iowa 2006). If a patient does not follow the steps required in each phase or
continually has behavioral problems, the patient will not progress through
the phases. The failure of a person to progress because of the issuance of a
major behavioral report is not an adverse action, but an integral part of the
treatment under a cognitive-behavioral model. See Youngberg v. Romeo,
457 U.S. 307, 324-25, 102 S. Ct. 2452, 2463, 73 L. Ed. 2d 28, 43 (1982)
(holding “administrators [of a state mental institution], and particularly
professional personnel, should not be required to make each decision
[regarding the care of a patient] in the shadow of an action for damages”).
Consequently, Swanson is not an aggrieved person for purposes of
contested case review under Iowa Administrative Code rule 441–7.1(9).
B. Whether the denial of Swanson’s request for a contested case
hearing violates his due process rights. Swanson claims the denial of a
judicial review proceeding violates his due process rights as guaranteed by
the Fourteenth Amendment to the United States Constitution and article
one, section nine of the Iowa Constitution. He argues the major behavioral
reports he received necessarily lengthened the duration of his involuntary
commitment at CCUSO. Swanson argues this practice violates due process
because it denies him and other CCUSO residents meaningful access to an
impartial tribunal. 13
The Due Process Clause of the United States Constitution prohibits
states from “depriv[ing] any person of life, liberty, or property without due
process of law.” U.S. Const. amend. XIV, § 1. Although we have
traditionally considered the federal and state due process provisions to be
equal in scope, import, and purpose in deciding these constitutional issues,
interpretations of the federal Due Process Clause are not binding on us
when we are called upon to determine the constitutionality of Iowa statutes
challenged under our own due process clause. Callender v. Skiles, 591
N.W.2d 182, 187 (Iowa 1999). However, our discussion of the Due Process
Clause of the Fourteenth Amendment is equally applicable to Swanson’s
Iowa constitutional claim because Swanson has not given us any reason to
interpret the federal and Iowa due process clauses differently. State v.
Bower, 725 N.W.2d 435, 441 (Iowa 2006).
1. Substantive due process.
Swanson claims he is being denied his fundamental right to access
the courts. The right to access the courts typically concerns the right to
counsel, Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S. Ct. 792, 795-
96, 9 L. Ed. 2d 799, 804 (1963), the right to state-provided transcripts for
indigent persons, Griffin v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 590-91,
100 L. Ed. 891, 899 (1956), the right to file for divorce without the
obligation of filing fees for indigent persons, Boddie v. Connecticut, 401 U.S.
371, 380-81, 91 S. Ct. 780, 787, 28 L. Ed. 2d 113, 120-21 (1971), and
prisoners’ rights to have adequate libraries and trained assistance, Bounds
v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72, 83
(1977). In order to proceed under a substantive due process analysis
concerning the right to access the courts, Swanson must specify a
constitutionally required avenue that he has been denied. Swanson only 14
argues he has been denied access to the courts because he has been denied
proper procedure. Accordingly, we can only consider his procedural due
process arguments.
2. Procedural due process.
“When a state action threatens to deprive a person of a protected
liberty or property interest, a person is entitled to procedural due process.”
Meyer v. Jones, 696 N.W.2d 611, 614 (Iowa 2005). To determine what
process is due a person who has been deprived of a protected liberty or
property interest we have adopted the test set out by the Supreme Court in
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d
18, 33 (1976). See State ex rel. Hamilton v. Snodgrass, 325 N.W.2d 740,
742 (Iowa 1982) (adopting and implementing the Mathews balancing test).
In Mathews the Court held in order to determine what the “specific dictates
of due process generally requires,” the court must consider three factors: (1)
“the private interest that will be affected by the official action;” (2) “the risk
of an erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute procedural
safeguards;” and (3) “the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Mathews, 424 U.S. at
335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33.
We have found “no constitutional bar to the civil confinement of
sexually violent predators with untreatable conditions when confinement is
necessary to protect the public.” In re Detention of Darling, 712 N.W.2d at
101. However, those who are involuntarily committed retain a liberty
interest in the requirements and procedures of chapter 229A. See In re
M.T., 625 N.W.2d 702, 706 (Iowa 2001) (finding a person’s “liberty interests 15
are at stake at an involuntary commitment hearing,” and “[t]herefore it is
imperative that the statutory requirements and procedures be followed.”).
Further, as the State concedes, the Supreme Court found the State has
a duty to provide adequate food, shelter, clothing, and medical care. . . . [This is because a patient involuntarily committed in a state institution] enjoys [the] constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.
Youngberg, 457 U.S. at 324, 102 S. Ct. at 2462, 73 L. Ed. 2d at 42-43.
However, the Constitution only requires us to make certain that
professional judgment was in fact exercised. We are not required, nor is it
appropriate for us to specify which of several professionally acceptable
choices should have been made. Finally, “a State may confer procedural
protections of liberty interests that extend beyond those minimally required
by the Constitution of the United States.” Mills v. Rogers, 457 U.S. 291,
300, 102 S. Ct. 2442, 2449, 73 L. Ed. 2d 16, 23 (1982).
In considering the first factor of Mathews, the private interest that will
be affected by the official action, Swanson argues “the handbook creates a
liberty interest because it confers patients with the right to complete the
treatment program within a minimum time frame—a time frame that is
automatically extended upon receipt of a major behavioral report.” As
previously discussed in this decision, the handbook does not create a
minimum or maximum time frame for release from the treatment program.
The handbook merely sets forth certain behaviors Swanson must achieve
before he can graduate from the program. The time in which to complete
the program is wholly dependant on the progress made by Swanson.
Accordingly, Swanson has not identified a liberty interest beyond those
discussed in Youngberg. 16
Under the second factor, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards, is de minimis. The
handbook provides Swanson with appropriate procedural safeguards. The
handbook gives a patient the right to appeal a behavioral report. A
behavioral report is investigated and the director, without a documented
need for a continuance, must decide the appeal within ten working days of
the appeal. Further, the patient has access to grievance procedures if he is
dissatisfied with the appeals process or any other matter. If the resolution
of the grievance is not satisfactory, the patient can submit a detailed written
grievance to the director or director’s designee who will make a decision
within three weeks of receiving the written grievance. There is no further
appeal of a grievance, but the handbook provides that a patient may take
the complaint to the courts if the patient so chooses. These procedural
safeguards ensure that there is a low risk of an erroneous deprivation of a
patient’s liberty interest to “conditions of reasonable care and safety,
reasonably nonrestrictive confinement conditions, and such training as may
be required by these interests.” Youngberg, 457 U.S. at 324, 102 S. Ct. at
2462, 73 L. Ed. 2d at 42-43. In fact, during one of Swanson’s appeals the
investigator dismissed Swanson’s misuse of property charge even though he
fashioned a paper clip into a tool which was approximately four inches long,
with a one-inch curved hook.
As to the third factor, the government’s interest, including the
function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail, it would be
too costly for DHS to conduct judicial review hearings on every behavioral
report. In this case alone, three contested case proceedings would be 17
required with the possibility of judicial and appellate review of the contested
cases. Not only would these proceedings be costly financially, they would
interrupt Swanson’s treatment while the proceedings work through the
court system.
Consequently, applying the Mathews factors we find no additional
process is necessary to satisfy Swanson’s procedural due process rights
under the federal and state constitutions.
V. Disposition.
Because Swanson is not an aggrieved person under chapter 17A and
his due process rights were not violated when he was denied a contested
case hearing, we affirm the judgment of the district court dismissing his
petition for judicial review.
AFFIRMED.
All justices concur except Appel, J., who concurs specially. 18
#21/05-0845, Swanson v. Civil Commitment Unit
APPEL, J. (specially concurring).
I specially concur in the outcome of this case. I write separately
because I believe the majority applies the wrong legal framework to resolve
the issue presented in this appeal.
In his petition, Swanson seeks judicial review of a final agency action,
which held that he was not entitled to a contested case hearing in
connection with disciplinary matters under the applicable administrative
procedures. He desires an evidentiary hearing before the agency to
determine the validity of the underlying discipline.
These claims were brought under the Iowa Administrative Procedures
Act (IAPA). When a party seeks review of final agency action under the
IAPA, two separate and distinct questions arise. The first question is
whether the party seeking judicial review is “aggrieved” under the IAPA. The
second question involves a judicial determination of the type of agency
action involved, specifically, whether the matter involves a contested case
proceeding or whether the matter involves “other agency action.” See Hurd
v. Iowa Dep’t of Human Servs., 580 N.W.2d 383, 387-88 (Iowa 1998); Polk
County v. Iowa State Appeal Bd., 330 N.W.2d 267, 277 (Iowa 1983).
In this case, the first question is whether Swanson was aggrieved by
the final agency action, namely, the imposition of disciplinary sanctions. In
my view, Swanson is so aggrieved. It is undisputed that as a result of the
disciplinary reports, the department reduced Swanson’s level of privileges at
the facility. In addition, Swanson was adversely affected in that the
existence of disciplinary reports, even if they might not automatically or
necessarily extend his confinement, would constitute a stigma that would
make his early release less likely. 19
Swanson’s legal interest, therefore, in challenging the department’s
imposition of discipline was sufficient to confer standing under the IAPA.
The standard for determining whether a person is aggrieved under the IAPA
is not demanding.
First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision . . . . Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specifically and injuriously affected by the decision.
City of Des Moines v. Pub. Employment Relations Bd., 275 N.W.2d 753, 759
(Iowa 1979). I believe that Swanson has met this test.
The State argues that the discipline meted out against Swanson is
“therapy” and as a result, Swanson cannot be considered “aggrieved” as a
matter of law. There is nothing in the record to suggest that professional
medical judgment was brought to bear on any of the disciplinary
proceedings against Swanson. The proceedings were adjudications in the
sense that they involved application of established principles of conduct to
past actions. Higgs v. Carver, 286 F.3d 437, 438 (7th Cir. 2002). The
processes invoked under the handbook are akin to prison disciplinary proceedings, where a system of rewards and punishment are established to
control behavior. As a result, resort to Youngberg v. Romeo, 457 U.S. 307,
102 S. Ct. 2452, 73 L. Ed. 2d. 28 (1982), misses the mark.
But the determination that Swanson met the relatively low
requirements of “an aggrieved person” under the IAPA is not the end of the
inquiry. Even assuming that Swanson was aggrieved, the question remains
whether he was entitled to a contested case hearing under the IAPA. See
Iowa Code § 17A.2(5) (2005) (definition of contested case). That is a 20
fundamentally different question than whether he was aggrieved by the final
agency action.
Swanson appears to claim he was entitled to an evidentiary hearing
under the handbook. There is nothing in the handbook, however, that
suggests that he is entitled to an evidentiary hearing in connection with
disciplinary proceedings. As a result, there is no basis for Swanson’s claim
that he was afforded the right to an evidentiary hearing by the agency’s
adoption of a discretionary policy.
Under the IAPA, however, an aggrieved party is entitled to a contested
case proceeding if he or she is entitled to an evidentiary hearing by statute
or by constitution. Hurd, 580 N.W.2d at 388. Swanson does not claim that
he was entitled to an evidentiary hearing by statute, and, as a result, his
sole remaining argument is that, as a matter of constitutional law, he is
entitled to an evidentiary hearing.
Whether due process entitles a person, who is subject to civil
confinement under sexual predator statutes, to an evidentiary hearing on
disciplinary matters is a question that has not been addressed by the
courts. In the case of Sandin v. Connor, 515 U.S. 472, 115 S. Ct. 2293, 132
L. Ed. 2d 418 (1995), however, a divided United States Supreme Court held
that placing a prisoner in solitary confinement as a result of a disciplinary
proceeding did not give rise to a liberty interest sufficient to trigger due
process protections. The majority held that the change in privileges was
insufficient to give rise to a liberty interest. The court further concluded
that the mere fact that the disciplinary proceedings might be a factor in the
discretionary decision to release the prisoner on parole was too attenuated
to give rise to due process protections. Id. at 487, 115 S. Ct. at 2302, 132
L. Ed. 2d at 432. Four justices dissented in Sandin, noting, among other 21
things, that the stigma associated with the disciplinary proceedings was
sufficient to give rise to a liberty interest.
The Sandin case is not directly applicable, however, as this case
presents a civil commitment rather than a penal context. Nonetheless,
based on Sandin, I conclude that the United States Supreme Court would
reject any claim that the reduction in privileges experienced by Swanson as
a result of the disciplinary proceedings in the civil commitment context
gives rise to a liberty interest protected by due process. The question of
whether the stigma that arises from the disciplinary proceedings is
sufficient under the facts and circumstances of this case to give rise to a
liberty interest is a somewhat closer question. It is undisputed that a
person confined as a result of Iowa’s sexual predator statute, unlike the
prisoner in Sandin, does not have a specific release date. But does this
clear distinction make the stigma of discipline in this case even more
powerful than that in Sandin?
In light of the strong language of the majority opinion in Sandin,
however, I conclude that if the matter were presented to the United States
Supreme Court today, the court would hold that the mere stigma associated
with disciplinary proceedings is insufficient to give rise to a liberty interest
and therefore does not form the basis for a contested case proceeding.
Swanson has not argued that the interpretation of the due process clause
under the Iowa Constitution should be approached differently and, as a
result, we treat its proper interpretation as identical with its federal
counterpart. Pfister v. Iowa Dist. Ct., 688 N.W.2d 790, 795 (Iowa 2004).
Therefore, Swanson loses on the central question he has presented on
appeal—whether he was entitled to a contested case proceeding before the
agency. 22
In this case, Swanson did not claim that he was entitled to judicial
review of “other agency action” under the IAPA. The language in the
majority opinion implying that Swanson was not sufficiently aggrieved
under the IAPA to invoke review of “other agency action” is, in my view,
incorrect and, in any event, is not necessary to the outcome of this case.