author: CADY, Justice.

text:
    Melissa K. ANDERSON and Drew Nigel Anderson, by His Mother and Next Friend, Melissa K. Anderson, Appellants, v. WEBSTER CITY COMMUNITY SCHOOL DISTRICT, Appellee.
    No. 99-0060.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Frederick W. James and Jennifer S. Gerrish-Lampe of the James Law Firm, P.C., Des Moines, and Robert E. Walker of the Walker Law Firm, Fort Dodge, for appellants.
    Kirke C. Quinn of Quinn, Doran & Anderson, Boone, for appellee.
   CADY, Justice.

Melissa Anderson appeals from an order by the district court denying her motion for a new trial based on her challenge to a jury instruction. We conclude the jury instruction did not result in prejudice and affirm the decision of the district court.

I.Background Facts and Proceedings.

Drew Anderson broke his leg while sledding during a noon recess at Pleasantville Elementary School in Webster City on February 12, 1997. He was seven years old and was in the second grade. The injury occurred when Drew fell from his sled after it went over a bump or ramp. There was conflicting evidence at trial regarding the existence and height of the ramp. Some witnesses also testified Drew was sledding on his stomach, while others testified he was sitting on his knees.

Sledding was a permissible noon-time activity at the school. However, several restrictions were imposed on the students. One restriction was that ramps were not allowed. Students were also instructed on the proper method to ride a sled. Teachers were present to supervise the sledding activity.

Melissa Anderson is the mother and legal guardian of Drew. She filed this action against the Webster City Community School District individually and on behalf of Drew, claiming the school was negligent in failing to properly supervise the sledding activity, inspect the hill for ramps, and remove the ramps from the hill. The school district asserted several affirmative defenses, including the defense that Drew assumed the risk of his injury by participating in a sledding activity.

One of the instructions given to the jury by the trial court defined the duty of care owed by sponsors of recreational activities to participants. A portion of this instruction informed the jury that “[sjome risk naturally attends participants in recreational activities.” Anderson objected to this portion of the instruction, which the court overruled.

The jury returned a verdict in favor of the school district after finding the school was not negligent. The trial court subsequently overruled Anderson’s motion for a new trial based on the challenged jury instruction.

Anderson appeals the denial of her motion for a new trial. She claims the disputed instruction erroneously holds grade school children to a standard that should be limited to older students and adults engaged in sporting activities who have or should have acquired sufficient experience and knowledge to appreciate and understand inherent risks of the activity. She asserts a child of tender years does not have an understanding of inherent risk and should not be held to the same standard.

II. Scope of Review.

Our review of a challenge to a jury instruction is for the correction of errors at law. Iowa R.App.P. 4; Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 376, 379 (Iowa 2000); Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 575 (Iowa 1997); Johnson v. Johnson, 564 N.W.2d 414, 416 (Iowa 1997). Although our review is on error, we will not reverse unless “prejudicial error by the trial court has occurred.” Thavenet v. Davis, 589 N.W.2d 233, 236 (Iowa 1999); see Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 379; Condon Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 593 (Iowa 1999). The trial court commits prejudicial error when it materially misstates the law. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 379; Waits, 572 N.W.2d at 575. On the other hand, we consider the instructions in their entirety and will not reverse if the instructions have not misled the jury. Thavenet, 589 N.W.2d at 236.

III. Challenge to Jury Instruction.

The trial court has a duty to instruct a jury on all legal issues presented in a case. State v. Herndon, 257 N.W.2d 19, 22 (Iowa 1977); see also Kuehn v. Jenkins, 251 Iowa 718, 731, 100 N.W.2d 610, 617-18 (1960) (noting the trial court’s instructions provide guidance to the jury to correctly apply the law to the facts). This means that in an action based on negligence, the court is required to define all legal standards, including the applicable standard of care. See 88 C.J.S. Trials § 284, at 781 (1955) (trial court may instruct the jury as to the “degree of care required under certain conditions”).

In this ease, the instructions by the trial court included a definition of the duty owed by a sponsor of a recreational activity to its participants. The disputed instruction provided:

A sponsor of a recreational activity has the general duty to conduct itself as an ordinary prudent person, under like circumstances, to protect the participant from an unreasonable risk of harm. Negligence is not a matter to be viewed after the occurrence. It is a question of what reasonably prudent persons, under the same circumstances, would or should have anticipated at that time, in the exercise of reasonable care.
Some risk naturally attends participants in recreational activities. It is when the sponsor fails to protect a participant from an unreasonable risk that it would or should have anticipated that negligence arises. It is not necessary that the actual harm or particular injury be anticipated.

The trial court derived this standard from Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974). In Dudley, a college baseball player sued his coach and college after he was struck in the eye by a foul ball while sitting on the bench during a home baseball game. Dudley, 219 N.W.2d at 484-85. The college baseball diamond did not have dugouts or netting protecting the participants from the playing field. Id. at 485. The trial court directed a verdict in favor of the defendant college and coach. Id. at 485-86. We held Dudley produced insufficient evidence to show a reasonable college should have taken action to protect him from his injury. Id. In doing so, we acknowledged the college had a duty to exercise reasonable care under the “circumstances to protect others from unreasonable risk of harm.” Id. at 486. Thus, we recognized the law imposes a duty of care upon the sponsor of an athletic event but further recognized that the duty of care extends only to risks of harm that are unreasonable. Id. Consequently, “players in athletic events accept the hazards which normally attend the sport.” Id.

Anderson claims the instruction given by the trial court in this case was flawed because the duty of a school in caring for children engaged in recreational activities should not be limited by the inherent risk standard applicable to sporting activities. Anderson asserts children have limited knowledge and experience, and the school should be held to the same standard as a reasonably prudent parent. See Godar v. Edwards, 588 N.W.2d 701, 708 (Iowa 1999); Burton v. Des Moines Metro. Transit Auth., 530 N.W.2d 696, 700 (Iowa 1995).

At trial, Anderson did not challenge the disputed instruction because it identified the standard of care as an “ordinary prudent person” instead of a “reasonably prudent parent.” Instead, her objection at trial was limited to the inclusion of the natural or inherent risk language and her claim that it was inappropriately applied to recreational activities engaged in by children. Therefore, we limit our consideration to this argument.

The school district asserts the disputed portion of the instruction is supported by Dudley and basically embodies the primary assumption of risk doctrine we first recognized in Rosenau v. City of Estherville, 199 N.W.2d 125 (Iowa 1972). In Rosenau, we explained that the primary assumption of risk doctrine “is an alternative expression for the proposition that [the] defendant was not negligent, i.e., either owed no duty or did not breach the duty owed.” Rosenau, 199 N.W.2d at 131. We went on to provide an example of this “primary meaning,” “in which an employee is injured by a danger naturally incident to the employment, even though the employer has exercised all reasonable care for his safety.” Id. We also defined the secondary assumption of risk doctrine, which addresses the fault of the injured party in acting unreasonably in assuming the risk. Id.

We agree with the school district that the disputed portion of the instruction applied the primary meaning of assumption of risk. In Dudley, we did not say “players in athletic events accept hazards which normally attend the sport” because such players assume the risk in its secondary meaning. Instead, the phrase was used in its primary meaning. As such, it had two meanings. It means the duty of care does not extend to natural risks of the activity, or there is no breach of care when the injury results from a risk inherent to the activity. In this case, the phrase was incorporated into the duty of care instruction as a means of limiting the scope of the duty. Nevertheless, this can present a danger trial courts must avoid in instructing a jury.

In defining the duty of care in a negligence action, trial courts must not provide examples of what conduct constitutes a breach of duty. See 88 C.J.S. Trials § 284, at 781 (the trial court “must not instruct as to what would be negligence ... in the circumstances”). This is improper because the jury must apply the legal standard to the facts, and any attempt by the court to do so invades the province of the jury. See id. Similarly, the duty of care instructions must not amount to a comment on the evidence. Peters v. Vander Kooi, 494 N.W.2d 708, 712-13 (Iowa 1993) (mistake in treatment and mistake in diagnosis instructions in a medical malpractice case amounted to comments on the evidence).

It is the task of the jury to determine the reasonableness of the care exercised by defendant in light of the foreseeability of harm. See 88 C.J.S. Trials § 284, at 781. Thus, an instruction that informs the jury that the duty of care does not extend to those risks that are an inherent aspect of the activity is actually a comment that the activity has inherent risks which attend to the participant. This amounts to a comment on the evidence because the jury should decide whether a particular activity has risks which attend to the participants based upon the application of the reasonable person test.

Although we utilized the inherent risk language in Dudley, we did so only in reviewing the trial court’s decision to grant a directed verdict. See Dudley, 219 N.W.2d at 485-86. We found the facts of the case revealed the only risk of harm that gave rise to the injury was the risk that inhered in the activity itself. See id. at 486-87. Thus, the sponsor did not breach the duty of reasonable care owed to its participant as a matter of law. See id. at 486.

In this case, the district court was not applying the reasonableness standard. Instead, it had submitted the case to the jury. Consequently, the jury was given the responsibility to decide whether or not the school district breached its duty of care under the circumstances. Under this reasonableness standard, it was unnecessary for the jury’s determination to be instructed that some risks are inherent in a particular activity. See Peters, 494 N.W.2d at 712-13 (trial court’s “comments on potential factual scenarios in which a standard of care may or may not have been adhered to” amounted to comments on the evidence and were “unnecessary for the jury’s determination”).

Nevertheless, an instruction embodying a potential comment on the evidence does not warrant reversal unless the instruction prejudiced the complaining party. See Condon Auto Sales & Serv., 604 N.W.2d at 593; Vaughan, 542 N.W.2d at 539; 88 C.J.S. Trials § 293, at 803. Prejudice results when the trial court’s instruction materially misstates the law, confuses or misleads the jury, or is unduly emphasized. 88 C.J.S. Trials § 371, at 950.

In this case, the instruction neither identified which risks were inherent in the activity nor applied the inherent risk standard to any particular facts. Instead, the district court provided additional instructions that told the jury to specifically consider the standard of reasonable care in light of the particular specifications of negligence pertaining to the failure to properly supervise, inspect, and remove the particular danger.

Jury instructions are to be considered as a whole, not in isolation. Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 536 (Iowa 1999). In this case, all the instructions when read together properly explained the applicable law to the jury. See id. In addition, the instructions considered as a whole did not mislead the jury, see Thavenet, 589 N.W.2d at 236, nor provided undue emphasis. See Rosenau, 199 N.W.2d at 133 (“instructions should not give undue emphasis to any phase of the case favorable to either side”). Consequently, we find no prejudice occurred to Anderson.

IV. Conclusion.

Although we affirm the district court’s decision to deny the motion for a new trial, we do not encourage district courts to utilize the disputed portion of the instruction in this case. The fear that the instruction may be used as a comment on the evidence supports its rejection. We affirm the district court.

AFFIRMED.


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    STATE PUBLIC DEFENDER, Plaintiff, v. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.
    No. 98-2246.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Mark C. Smith, Acting State Public Defender, for plaintiff.
    Thomas J. Clarke, Jr., Des Moines, for defendant.
   NEUMAN, Justice.

We granted the State Public Defender’s petition for certiorari to consider his claim that the juvenile court acted illegally when it compensated a court-appointed lawyer for assisting his client to obtain suitable housing. Considered in the abstract, the public defender makes a compelling argument that these were social services, not legal services. But, viewed in context, the lawyer’s assistance formed a strategic part of meeting the juvenile court’s demands and fulfilling his professional obligation to help his client avoid termination of her parental rights. Moreover the public defender has furnished no record to support his claim that the time devoted to these services, even if allowable, was excessive, We therefore annul the writ.

I. Background Facts and Proceedings.

In 1995, attorney Thomas J. Clarke, Jr. executed a contract with the State Public Defender to “provide criminal or juvenile court legal services” to indigent persons pursuant to appointment by the court. As part of that contract, Clarke agreed to use his “best efforts and legal ability on behalf of the client” in each case handled.

Clarke assumed the representation of Susan Green in December 1997. Green, unemployed and on public assistance, was the mother of three children adjudicated by the juvenile court to be in need of assistance (CINA). The children had been removed from the home because of a founded child abuse report lodged against their father and a stipulation by Green that she denied them critical care. Pursuant to an order entered March 12, 1998, Clarke received permission from the juvenile court to exceed established time and fee guidelines in Green’s representation and, instead, to be compensated “for his actual time and expenses incurred in this matter.”

In October 1998, Clarke submitted a fee claim form requesting payment for thirty-six hours of services rendered at the contract rate of forty-five dollars per hour. The public defender filed a written request to have the claim reviewed by the court, stating “the fees claimed in this case appear to be excessive.” Before a scheduled hearing could take place, Clarke submitted another fee claim for an additional twenty-one hours. The court considered both fee statements at the unreported hearing that followed.

The court awarded Clarke the full amount of the fees and expenses claimed. Its order specifically stated that the time expended by Clarke was “both reasonable and necessary in order to provide Susan Green ... with adequate legal representation” and that the court had directed Clarke to “provide certain services ... including but not limited to [Clarke’s] efforts to find adequate housing” for Green, which services were “within the scope of Mr. Clarke’s contract with the State Public Defender.” The public defender’s challenge to this ruling is now before us.

II. Issue/Scope of Review.

An original action for certiorari is the appropriate procedural vehicle to obtain review of a trial court’s award of court-appointed attorney fees. Furey v. Crawford County, 208 N.W.2d 15,19 (Iowa 1973). The question, as in all certiorari actions, is whether the court exceeded its jurisdiction or otherwise acted illegally. Id. The burden of proving illegality rests on the party alleging it. Carstensen v. Bd. of Trs. of Police Ret. Sys., 253 N.W.2d 560, 562 (Iowa 1977); see Coonrad v. Van Metre, 362 N.W.2d 197, 201 (Iowa 1985) (burden rested on lawyer/plaintiff to prove court failed to apply court-imposed fee standards).

“Applying the correct legal standard, a court has broad discretion in determining attorney fees.” Hulse v. Wifvat, 306 N.W.2d 707, 709 (Iowa 1981). The trial court has no discretion, however, to apply the wrong standard. See id. Where, as here, the certiorari plaintiff challenges the legal basis for the court’s fee award, our review is for the correction of errors at law. Id.; cf. Furey, 208 N.W.2d at 19 (reasonableness of fee award accorded limited review for abuse of discretion).

III. Analysis.

The public defender contests the legality of the court’s order on the sole ground that it constitutes payment “for activities that do not constitute legal services.” His focus is evidently on thirteen entries on Clarke’s fee statement pertaining to Green’s housing issues. The public defender asserts that under no circumstances may “finding housing for a client” constitute legal services or legal representation obligating payment under the public defender’s contract. In his words, “[f]ind-ing housing does not address any legal needs, does not require out-of-the-ordinary legal skill or knowledge, does not concern either legal rights or remedies.”

The public defender’s argument rests on the premise that Clarke’s efforts to find housing for Green called for no professional judgment and, hence, did not involve the practice of law. See Iowa Code of Profl Responsibility EC 3-5 (“Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer.”); Comm. on Prof'l Ethics & Conduct v. Baker, 492 N.W.2d 695, 701 (Iowa 1992). The syllogism does not really work here. We, like other supervising judicial authorities, presume and expect the exercise of professional judgment in whatever capacity a lawyer may be acting on behalf of a client. See Baron v. City of Los Angeles, 2 Cal.3d 535, 86 Cal.Rptr. 673, 469 P.2d 353, 357 (1970). The real question is whether the particular services for which the court authorized payment here constitute “legal services” compensable under Clarke’s contract with the public defender. Unfortunately we are hindered in our resolution of that question by the scanty record furnished on appeal.

The factual record before us consists almost exclusively of child protective worker reports documenting the CINA proceedings and Susan Green’s progress (or lack thereof) in meeting the court’s expectations for reunification of this family. The stated goal of CINA proceedings is to “stabilize the home environment so that the family can remain intact without further danger to the child[ren].” Iowa Code § 232.67 (1999). Here, in order to keep her family intact, Green had to find stable housing away from her abusive husband. Evidently this was not an easy task given the number of children involved, Green’s economic circumstances, regulations governing publicly assisted housing, and Green’s poor prior history with a federally subsidized housing program. Court documents support Clarke’s claim that Green faced the real possibility that the State would move to terminate her parental rights if suitable housing could not be secured. He asserted in argument before this court that it was incumbent upon him to research complex federal housing regulations and interpret them for social workers and landlords alike, all as part of his advocacy for Green. The court’s order reinforces Clarke’s claim, and the public defender has tendered no evidence to the contrary.

Given this limited record, we cannot say Clarke’s aid in resolving Green’s housing issues involved neither the exercise of professional judgment nor legal services. Plainly the contract does not preclude payment for such activities. It merely demands counsel’s “best efforts and legal ability on behalf of the client in each case handled under the Contract.”

If the public defender’s real claim is that the extent of Clarke’s assistance on this issue was excessive or unnecessary, then it was incumbent upon him to make that record for our review. See State v. Mudra, 582 N.W.2d 765, 767 (Iowa 1995) (appellant must provide court with record affirmatively disclosing error relied upon). His reliance on an all-or-nothing approach is simply unpersuasive in the context of the case before us.

Because we cannot say that the juvenile court erred, as a matter of law, when it authorized compensation for a lawyer’s services related to securing suitable housing for a client/parent in a CIÑA case, we annul the writ of certiorari previously granted.

WRIT ANNULLED.


author: SNELL, Justice.

text:
    STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR MAHASKA COUNTY, Defendant.
    No. 99-1920.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Charles A. Stream, County Attorney, and Vernon G. Stejskal, Assistant County Attorney, for plaintiff.
    Matthew B. Moore of Heslinga, Heslin-ga, Dixon & Moore, Oskaloosa, for defendant.
   SNELL, Justice.

This writ of certiorari questions the district court’s ability to suspend a sentence to the department of corrections for Operating While Intoxicated (OWI), Third Offense without requiring a mandatory minimum of thirty days served in the county jail. We hold that the applicable statute authorizes such a suspension and annul the writ.

I. Factual Background and Proceedings

The circumstances of this appeal began when Daryl Kent Beyer pled guilty to OWI third. Beyer had two precedent OWI convictions within the applicable time period to elevate his conviction to a third offense. OWI third is a class “D” felony. Iowa Code § 321J.2(2)(c) (1999). Pursuant to his plea, the district court committed Beyer to the custody of the department of corrections for an indeterminate term of five years. The court thereafter suspended the sentence, and Beyer was placed on probation. In its discretion, the court relied on the recommendation in the pre-sentence investigation report and decided not to impose a minimum penalty of thirty-days incarceration. The court recognized “it [was] an unusual recommendation for probation,” but determined it was warranted under the circumstances. The State contested the suspension because Beyer was not required to serve a mandatory minimum.

The State filed a petition for a writ of certiorari with our court. It argued that the district court had no authority to grant Beyer an outright suspended sentence for his conviction of OWI third. The State relies on the previous statute which required-a mandatory minimum sentence to be imposed for all third offense OWI convictions. Iowa Code § 321J.2(2)(c) (1997). However, in 1997, the Iowa Legislature amended section 321J.2(2)(c) and omitted this language. See 1997 Iowa Acts ch. 177, § 4. The meaning of the current version of section 321J.2(2)(c) is now at issue in the present case. See Iowa Code § 321J.2(2)(c) (1999).

The State asserts that the omission of this language did not defeat the general prohibition against suspended sentences under the remaining portions of section 321J.2(2). Beyer counters that because the language was eliminated, the Iowa Legislature repealed the mandatory minimum penalty for OWI third sentences to the department of corrections. As such, Beyer argues he was properly given a suspended sentence. We granted the State’s petition and now address the merits.

II. Scope and Standard of Review

We review the district court’s interpretation of section 321J.2 for correction of errors at law. Iowa R.App.P. 4; State v. Guzmam-Juarez, 591 N.W.2d 1, 2 (Iowa 1999). As such, our court is not required to give a preference to the trial court’s legal determinations, if any. State v. Francois, 577 N.W.2d 417, 417 (Iowa 1998); State v. Bond, 493 N.W.2d 826, 828 (Iowa 1992). In other words, “the district court’s interpretation does not bind this court.” State v. Knowles, 602 N.W.2d 800, 801 (Iowa 1999); accord Fuller v. Iowa Dep’t of Human Servs., 576 N.W.2d 324, 328 (Iowa 1998).

The principles of statutory interpretation are relevant here. “When a statute is plain and its meaning clear, courts are not permitted to search for meaning beyond its express terms.” State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998). However, if a statute is ambiguous, such that its meaning is open to more than one reasonable interpretation, this court may utilize the rules of statutory construction. State v. Maher, 618 N.W.2d 303, 305 (Iowa 2000). The ultimate goal is “a reasonable interpretation and construction which will best effect the purpose of the statute, seeking to avoid absurd results.” State v. Link, 341 N.W.2d 738, 740 (Iowa 1983).

III. Issue on Appeal

The issue of dispute stems from the meaning of Iowa Code section 321J.2(2)(c). The district court determined this section authorized granting a defendant convicted of an OWI third a suspended sentence without serving any mandatory minimum. The State argues this contravenes the purpose of section 321J.2 because a mandatory minimum is required each for OWI first and OWI second. See Iowa Code § 321J.2(2)(a)(l), (b) (requiring a minimum of forty-eight hours for OWI first and confinement of not less than seven days for OWI second). The district court’s interpretation results in no mandatory minimum being required for OWI third sentences when the defendant is committed to the department of corrections. The State argues this is an absurd result.

Section 321J.2(2)(c) is reproduced herein:

2. A person who violates subsection 1 commits:
c. A class “D” felony for a third offense and each subsequent offense, and shall be imprisoned in the county jail for a determinate sentence of not more than one year but not less than thirty days, or committed to the custody of the director of the department of corrections, and assessed a fine of not less than two thousand five hundred dollars nor more than seven thousand five hundred dollars. A person convicted of a third or subsequent offense may be committed to the custody of the director of the department of corrections, who shall assign the person to a facility pursuant to section 904.513 or the offender may be committed to treatment in the community under the provisions of section 907.6.

Id. § 321J.2(2)(c) (emphasis added).

The material removed in 1997 by the Iowa Legislature eliminated language requiring a thirty-day minimum confinement for suspended department of correction sentences. The omitted language stated:

The minimum jail term of thirty days cannot be suspended notwithstanding section 901.5, subsection 3, and section 907.3, subsection 3, however, the person sentenced shall receive credit for any time the person was confined in a jail or detention facility following arrest. If a person is committed to the custody of the director of the department of corrections pursuant to this paragraph and the sentence is suspended, the sentencing court shall order that the offender sene the thirty-day minimum term in the county jail.

Iowa Code § 321J.2(2)(c) (1997) (emphasis added), withdrawn by 1997 Iowa Acts ch. 177, § 4.

At the same time the above language was eliminated, the legislature added subsection three detailing when a suspended-sentence would be improper. Iowa Code § 321J.2(3) (1999). Specifically, section 321J.2(3)(a) states that the court may not suspend a “mandatory minimum sentence of incarceration applicable to the defendant under subsection 2 ... [i]f the defendant has previously been convicted of a violation of subsection 1.” Id. § 321 J.2(3)(a)(2). Section 907.3 further reinforces this provision. Id. § 907.3(3)(c). This new language in subsection three never existed concurrently with the omitted language from subsection two. The State asks us to speculate that subsection three was added to substitute for the absence of the language in subsection two. However, this conclusion is only relevant if a mandatory minimum applies to all OWI third convictions regardless of place of commitment.

One thing has remained constant in section 321J.2(2)(c). The language indicating there is a mandatory minimum penalty for an OWI third sentence to the county jail has not changed. A defendant convicted of an OWI third “shall be imprisoned in the county jail for a determinate sentence of not more than one year but not less than thirty days, or committed to the custody of the director of the department of corrections.” Id. § 321J.2(2)(c) (emphasis added). This is the only remaining statement the State can hope to use to show there is a mandatory minimum for sentences to the department of corrections as well. If such a correlation can be made, section 321J.2(3) makes it clear that the mandatory minimum cannot be suspended if the defendant has at least one previous OWI conviction. As such, Beyer would not be eligible for suspension until he has served thirty days in the county jail.

A. The Meaning of Section 321J.2(2)(c)

For several reasons, we are persuaded that there is no mandatory minimum for OWI third sentences to the department of corrections. For instance, if - an OWI third offender is committed to the county jail, the most he can receive is a year. Id., see State v. Patterson, 586 N.W.2d 83, 83-84 (Iowa 1998) (holding a sentence which totals more than one year in the county jail is illegal). However, if the same defendant is committed to the department of corrections he can be sentenced to as many as five years. See State v. Klein, 574 N.W.2d 347, 348 (Iowa 1998). It follows then that because the maximum, one-year penalty only applies to the county jail commitment, the thirty-day minimum is also similarly limited to sentences served at the county jail. A plain reading of the statute supports this conclusion. Without the omitted language, nothing remains to force an offender committed to the department of corrections to serve at least thirty days in the county jail.

Similarly, there is a tradition of different treatment between department of corrections commitments and county jail confinements authorized by the Iowa Code. See Iowa Code § 902.3 (providing an OWI third offender need not be committed to an indeterminate term of five years if he is sentenced to the county jail). In this regard we have recognized: “The legislation clearly enables the court to take advantage of community-based corrections appropriate for one defendant, while preserving the right to commit another defendant to the department of corrections when longer term incarceration is warranted.” State v. Morris, 416 N.W.2d 688, 690 (Iowa 1987). If Beyer were to violate the terms of his probation, he would still be subject to as much as five years imprisonment. As such, a sentence to the department of corrections still carries a sizeable penalty.

The State argues this interpretation creates an absurd result. No mandatory minimum would be required for OWI third commitments to the department of corrections while both OWI first and second offenses carry mandatory confinement penalties. See Iowa Code § 321J.2(2)(a)(l), (b). Further, the State points out that OWI third commitments to the county jail would have a mandatory minimum, but similar commitments to the department of corrections would not. The State maintains there- can be no rational reason for the above distinctions and suggests the legislature did not intend such a result by its 1997 amendment. We cannot agree. Section 321J.2(2)(c) merely gives sentencing courts the discretion to suspend an OWI third offender’s sentence in those cases where one is warranted.

Moreover, a plain reading of section 321J.2(2)(c) clearly applies the mandatory minimum to county jail commitments only. In the context of interpreting section 321J.2 we have previously stated:

In construing statutes, we search for the legislature’s intent as evidenced by what the legislature said, rather than what it might have said. In addition, “[w]hen the text of a statute is plain and its meaning clear, the court should not search for a meaning beyond the express terms of the statute.” Applying these rules here, we must conclude .'.. [t]he statute is absolute in its terms.... To adopt [a different] interpretation of this statute would require us to read something into the law that is not apparent from the words chosen by the legislature. This we cannot do.

Guzman-Juarez, 591 N.W.2d at 2 (citations omitted) (quoting Henriksen v. Younglove Constr., 540 N.W.2d 254, 258 (Iowa 1995)). We have also held that a “court may not add its own unwarranted words of qualification to [a] statute.” Kelly v. Brewer, 239 N.W.2d 109, 115 (Iowa 1976).

As reasoned above, section 321J.2(2)(c) must be interpreted literally. As it is written today, we are persuaded that the legislature purposely limited the mandatory minimum sentence to county jail commitments only. To adopt another interpretation of this language would be nothing short of judicial legislating. Accordingly, the district court did not exceed its authority when it granted Beyer a suspended sentence.

WRIT ANNULLED.


author: TERNUS, Justice.

text:
    In re the DETENTION OF Daniel E. GARREN. Daniel E. Garren, Appellant.
    No. 99-1785.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Pamela A. Vandel, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Scott D. Brown and Roxann M. Ryan, Assistant Attorneys General, for appellee State.
   TERNUS, Justice.

The appellant, Daniel Garren, challenges the constitutionality of 'Iowa’s Sexually Violent Predator Act, Iowa Code chapter 229A (1999), claiming (1) the act violates federal and state prohibitions against ex post facto laws, (2) the act violates federal and state prohibitions against double jeopardy, (3) the act deprives the appellant of substantive due process, (4) the act is unconstitutionally vague, and (5) the act violates the appellant’s federal and state rights to equal protection. We find no merit in these contentions and affirm the trial court’s judgment ordering the appellant’s civil commitment for sexual offender treatment.

I. Background Facts and Proceedings.

In 1994 Garren was convicted of sexual abuse in the third degree in Polk County, Iowa, and incarcerated. Prior to this conviction, Garren had twice been convicted in California of lascivious acts with a child and had been imprisoned for these crimes. In two of the three cases the victim was an unrelated female under the age of fourteen. The age of the victim in the third case and her relationship to Garren does not appear in the record.

During Garren’s confinement on the Iowa conviction, the State of Iowa filed a petition pursuant to chapter 229A requesting that the district court make a preliminary determination that probable cause existed to believe Garren “is a sexually violent predator” and is subject to civil commitment under chapter 229A. See Iowa Code §§ 229A.4, .7. The district court found that probable cause existed to believe that Garren suffered from a mental abnormality — pedophilia—and that based upon the evidence presented, this abnormality made “it likely that [Garren] will engage in predatory acts constituting sexually violent offenses if [he is] not confined in a secure facility.” See id. § 229A.5. Accordingly, the court ordered Garren to be detained, pending evaluation and trial pursuant to Iowa Code sections 229A.5 and 229A.7. Garren’s subsequent motion to dismiss on various constitutional grounds was denied by the district court.

At the scheduled trial on the State’s petition, the parties stipulated to the pertinent facts. The court thereafter entered a ruling holding that the State had proven beyond a reasonable doubt that Garren is a sexually violent predator subject to civil commitment under chapter 229A. Garren appeals, arguing that the court erred in failing to grant his motion to dismiss.

II. Scope of Review.

We recently summarized the principles governing our review of constitutional challenges to chapter 229A in In re Detention of Morrow, 616 N.W.2d 544 (Iowa 2000):

This court reviews constitutional claims de novo. Statutes are cloaked with a strong presumption of constitutionality and, thus, a party challenging a statute “carries a heavy burden” of rebutting this presumption. “ ‘A person challenging a statute must negate every reasonable basis upon which the statute could be upheld as constitutional.’ ”

616 N.W.2d at 547 (citations omitted).

III. Nature of Sexually Violent Predator Act.

Before we address the specific claims asserted by Garren on appeal, we consider an underlying issue that affects the constitutional protections to which Garren is entitled. That issue is whether the Sexually Violent Predator Act is civil or criminal in nature.

A. General principles. The determination of “whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction.” United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749 (1980); accord In re Matter of Aronson, 440 N.W.2d 394, 396 (Iowa 1989). In Ward, the United States Supreme Court articulated a two-part test to be applied in determining whether a statutory penalty is civil or criminal. 448 U.S. at 248-49, 100 S.Ct. at 2641, 65 L.Ed.2d at 749-50. The Court looks to

whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, [the Court] inquire[s] further whether the statutory scheme [is] so punitive either in purpose or effect as to negate that intention.

Id. (citations omitted). In addressing the second step of this test, the Court relies on the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), to ascertain the punitive nature of the statutory scheme, although these factors are neither “exhaustive nor dispositive.” Id. at 249, 100 S.Ct. at 2641, 65 L.Ed.2d at 750. The factors set forth in Kennedy are

[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned ....

372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 660-61. These factors “must be considered in relation to the statute on its face.” Id. at 169, 83 S.Ct. at 568, 9 L.Ed.2d at 661 (emphasis added); accord State v. Baehler, 604 N.W.2d 601, 605 (Iowa 1999). Moreover, “ ‘only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 493, 139 L.Ed.2d 450, 459 (1997) (quoting Ward, 448 U.S. at 249, 100 S.Ct. at 2641, 65 L.Ed.2d at 749).

B. Application of principles to commitment laws governing sexual offenders. The United States Supreme Court has had two occasions to consider the civil or penal nature of a statute that permits the commitment of sexual offenders. See Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986). In both cases, the Court held that the commitment statutes were civil in nature and did not trigger the constitutional protections accorded criminal defendants. See Hendricks, 521 U.S. at 361, 117 S.Ct. at 2082, 138 L.Ed.2d at 515; Allen, 478 U.S. at 375, 106 S.Ct. at 2995, 92 L.Ed.2d at 308. Because the Kansas Sexually Violent Predator Act challenged in the Hendricks case is nearly identical to the Iowa act, we examine the Court’s analysis in Hendricks in more detail.

Applying the first prong of the Ward test in Hendricks, the Court noted that the intent of the Kansas legislature to establish a civil proceeding was explicit in (1) the placement of the act within the probate code as opposed to within the criminal code, and (2) the legislature’s description of the act as “a civil commitment procedure.” Hendricks, 521 U.S. at 361, 117 S.Ct. at 2082, 138 L.Ed.2d at 514-15. Applying the second prong of the test and the Kennedy factors, the Court held that Hendricks had failed to meet his heavy burden of providing “ ‘the clearest proof that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Id. at 361, 117 S.Ct. at 2082, 138 L.Ed.2d at 515 (emphasis added) (quoting Ward, 448 U.S. at 248-49, 100 S.Ct. at 2641, 65 L.Ed.2d at 749).

Concerning the statute’s underlying purpose, the Court noted that commitment under the Kansas statute did not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. Id. at 361-62, 117 S.Ct. at 2082, 138 L.Ed.2d at 515. Retribution was not a purpose because the act did not affix culpability for prior criminal conduct. Id. at 362, 117 S.Ct. at 2082, 138 L.Ed.2d at 515. Rather, the prior conduct was “used solely for evidentiary purposes, either to demonstrate that a ‘mental abnormality’ exists or to support a finding of future dangerousness.” Id.; accord Allen, 478 U.S. at 371, 106 S.Ct. at 2993, 92 L.Ed.2d at 306 (rejecting committee’s argument that statute’s requirement of proof of “at least one act of or attempt at sexual assault or sexual molestation” was evidence of the statute’s criminal nature, stating: “While here the State must prove at least one act of sexual assault, that antecedent conduct is received not to punish past misdeeds, but primarily to show the accused’s mental condition and to predict future behavior.”). The Court also noted that the act did not make criminal conviction a prerequisite for commitment — a person who had been charged with a sexually violent offense but had been found incompetent to stand trial or found not guilty by reason of insanity or not guilty because of a mental disease or defect was also subject to the statute. Hendricks, 521 U.S. at 352, 362, 117 S.Ct. at 2077, 2082, 138 L.Ed.2d at 509, 515. The Court held that the absence of criminal responsibility “suggests that the State is not seeking retribution for a past misdeed.” Id. at 362, 117 S.Ct. at 2082, 138 L.Ed.2d at 515. Likewise, the absence of a requirement of scienter or intent was held to be evidence that the statute was not retributive in nature. Id.

The Court also concluded that it is unlikely that the legislature intended the commitment as a deterrent. Id. By the act’s own definition, persons committed under it are “suffering from a ‘mental abnormality’ or a ‘personality disorder’ that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement.” Id. at 362-63, 117 S.Ct. at 2082, 138 L.Ed.2d at 515.

Considering the effect of the act, the Court noted that while it did impose an affirmative restraint upon the person committed, “ ‘the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.’ ” Id. at 363, 117 S.Ct. at 2083, 138 L.Ed.2d at 516 (quoting United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697, 708 (1987)). In fact, the Court noted, “the confinement of ‘mentally unstable individuals who present a danger to the public’ ” has been cited as a classic example of nonpunitive detention. Id. (quoting Salerno, 481 U.S. at 748-49, 107 S.Ct. at 2102, 95 L.Ed.2d at 710).

The Court also rejected Hendricks’ argument that the commitment constituted punishment because it was for an indeterminate length of time. Id. at 363, 117 S.Ct. at 2083, 138 L.Ed.2d at 516. The Court observed that under the Kansas statute, if at any time the confined person is adjudged to be safe to be at large, he is entitled to immediate release and, furthermore, that the maximum amount of time that an individual can be held pursuant to a single judicial proceeding is one year. Id. at 363-64, 117 S.Ct. at 2083, 138 L.Ed.2d at 516. Contrary to any punitive purpose, “the confinement’s duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.” Id. at 363, 117 S.Ct. at 2083, 138 L.Ed.2d at 516.

C. Application of legal principles to Iowa act. We think the same analysis employed by the United States Supreme Court in Hendricks and Allen is applicable in this case.

1. Legislative intent. The Iowa legislature expressly labeled the Sexually Violent Predator Act as civil in nature. See Iowa Code § 229A.1 (finding that “a civil commitment procedure for the long-term care and treatment of the sexually violent predator is necessary” (emphasis added)). The preamble to the statute also suggests that the purpose of the commitment is public safety and treatment of the committed individual rather than punishment. See id. (“existing involuntary commitment procedure[s] ... [are] inadequate to address the risk these sexually violent predators pose to society ... [and] the treatment needs of this population are very long-term and the treatment modalities ... are very different from the traditional treatment modalities available in a prison setting or for persons appropriate for commitment under chapter 229” (emphasis added)). The legislature’s intent to enact a civil statute is also implied from the placement of the law among code chapters dealing with the mentally ill; chapter 229 provides for the voluntary and involuntary hospitalization of persons with mental illness and chapter 230 concerns support of persons with mental illness. See Iowa Code chs. 229, 230; see also Hendricks, 521 U.S. at 361, 117 S.Ct. at 2082, 138 L.Ed.2d at 514-15 (holding placement of commitment statute within probate code rather than within criminal code was evidence of intent to enact civil remedy). Additionally, a person determined to be a sexually violent predator under the statute is “committed for control, care, and treatment by the department of human services,’’ as opposed to the department of corrections, another indication of the civil nature of the commitment. Iowa Code § 229A.7 (emphasis added). As the United States Supreme Court stated in Hendricks, “Nothing on the face of the statute suggests that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm.” 521 U.S. at 361, 117 S.Ct. at 2082, 138 L.Ed.2d at 515.

2. Kennedy factors. In determining whether, despite the legislature’s manifest intent, “the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention” to deem it civil, the court must closely examine the statute. Ward, 448 U.S. at 248-49, 100 S.Ct. at 2641, 65 L.Ed.2d at 749. As noted earlier, the Kennedy factors are helpful in this analysis. We will not engage in a lengthy discussion of the Kennedy factors, however, because there is no meaningful difference between the Iowa statute and the Kansas statute at issue in Hendricks. Therefore, we simply state that we agree with the conclusions reached by the United States Supreme Court and reviewed above with respect to the Kansas act and find ■them equally applicable here. Nonetheless, we will address the specific arguments raised by Garren in his brief.

Garren asserts that the act subjects only those who have been convicted of criminal offenses to secure confinement, thereby evidencing a punitive purpose. Chapter 229A, however, provides for the commitment of an individual upon evidence that the defendant was merely charged with a prohibited offense, so long as the court finds beyond a reasonable doubt that the individual committed the act or acts charged, regardless of the individual’s sanity or competency. See Iowa Code § 229A.7(1). Thus, like the Kansas act, the Iowa act “does not make a criminal conviction a prerequisite for commitment — persons absolved of criminal responsibility may nonetheless be subject to confinement under the Act.” Hendricks, 521 U.S. at 362, 117 S.Ct. at 2082, 138 L.Ed.2d at 515.

In addition, persons adjudicated to be sexually violent predators are not committed solely on the basis that they have committed a sexually violent offense. Commitment under the act can only be achieved upon a finding that the individual is suffering from a mental abnormality that makes it likely that the individual will engage in future predatory acts of a sexually violent nature if not securely confined. See Iowa Code § 229A.2(8) (defining “sexually violent predator”). As noted in Hendricks, the mere fact that the act “may be ‘tied to criminal activity’ is ‘insufficient to render the statute punitive.’ ” 521 U.S. at 362, 117 S.Ct. at 2082, 138 L.Ed.2d at 515 (quoting United States v. Ursery, 518 U.S. 267, 292, 116 S.Ct. 2135, 2149, 135 L.Ed.2d 549, 570 (1996)).

Garren also asserts, as evidence of the punitive nature of the act, that “[t]he Act fails to provide those committed [under chapter 229A] with the same privileges of mental health committees under Iowa Code chapter 229.” Garren fails, however, to identify the privileges denied committees under chapter 229A. In addition, he does not elucidate any supportive reasoning as to why, if such privileges are not accorded under chapter 229A, this fact indicates the punitive nature of the statute. See generally id. at 377, 117 S.Ct. at 2089, 138 L.Ed.2d at 524 (Breyer, J., dissenting) (“The Constitution does not require [a state] to write all of its civil commitment rules in a single statute or forbid it to write two separate statutes each covering somewhat different classes of committable individuals.”).

Garren also argues that operation of the facility used to house those committed under chapter 229A by the Department of Corrections is further evidence of the punitive nature of the confinement. As noted in the statute, however, the program is operated under the auspices of the Department of Human Services. See Iowa Code § 229A.7. Moreover, the statute encompasses only those individuals, who, because of their propensity to recommit, must be held in a secure facility. The United States Supreme Court rejected a similar argument in Allen. In that case, persons adjudged sexually dangerous were committed to a psychiatric center housed at a maximum-security institution operated by the Illinois Department of Corrections. Allen, 478 U.S. at 372, 106 S.Ct. at 2993, 92 L.Ed.2d at 306. The center also provided treatment for convicts in need of mental health treatment. Id. The Court held that these facts did “not transform the State’s intent to treat into an intent to punish.” Id. at 373, 106 S.Ct. at 2994, 92 L.Ed.2d at 307. We reach the same conclusion here.

Garren also supports his contention that the statute is penal by arguing that any legislative intent to provide treatment is a sham and, therefore, confinement is necessarily excessive in relation to the purported desire to treat the committed person. See generally Kennedy, 372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661 (stating one factor to consider is whether the sanction “appears excessive in relation to the alternative purpose assigned”). He claims that if treatment of the committed individual were truly the concern of the State, treatment would not be delayed until the individual neared the end of his prison term. Garren also contends that treatment is more effective when the individual willingly participates. He asserts that offenders would be more willing participants if they were offered treatments such as hormone therapy or surgical procedures as an alternative to cognitive therapies. Because the offender is given no choice, treatment is less effective, thereby indicating, according to Garren, the absence of a sincere desire to treat the individual. Finally, Garren points to the State’s failure to consider less restrictive alternatives as additional evidence of the punitive nature of the commitment. We will address each argument separately.

Garren correctly notes that chapter 229A, as it existed at the time of his trial, deferred diagnosis, evaluation, and commitment until a few weeks prior to the anticipated release of the offender, and did not require commitment or treatment of sex offenders prior to the conclusion of their sentence. See Iowa Code § 229A.3(1). This fact does not mean, however, that no treatment was provided during Garren’s prison term. To the contrary the record before us establishes that the parole board recommended that Gar-ren attend the sex offender treatment program offered at the penal institution in which he was confined. Garren opted not to enter the program, however, because he was already involved in a computer class. He eventually did participate in the program, but failed to complete it. Although “the prognosis for rehabilitating sexually violent predators in a prison setting is poor,” see id. § 229A.1, we do not think the legislature’s initial decision to attempt treatment during the term of confinement with the programs available in the penal institution detracts from the remedial purpose of the Sexually Violent Predator Act.

We also find unpersuasive Garren’s argument that the act is punitive because the person committed is not allowed to choose his preferred method of treatment. Initially, it is important to remember that we must evaluate the nature of the statute on its face. There is no provision in the act limiting the treatment modalities available to committed offenders. Even if the treatment programs offered to those committed under chapter 229A were limited by the act, we do not think this fact would render the statute punitive. As the United States Supreme Court noted in Hendricks, “States enjoy wide latitude in developing treatment regimens.” 521 U.S. at 368 n. 4, 117 S.Ct. at 2085 n. 4, 138 L.Ed.2d at 519 n. 4.

Finally, we find no merit in Garren’s related complaint that less restrictive alternatives are not considered under the statute. By definition, a “sexually violent predator” is a person “likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.” Iowa Code § 229A.2(8) (emphasis added). Obviously, less restrictive alternatives are not viable where the person committed has already been determined to be in need of treatment within “a secure facility.”

3. Conclusion. Application of the Kennedy factors leads this court to the conclusion that Garren has failed to show by “the clearest proof’ that the Iowa legislature “despite its manifest intention to establish a civil, remedial mechanism, nevertheless provided for sanctions so punitive as to ‘transfor[m] what was clearly intended as a civil remedy into a criminal penalty.’ ” Ward, 448 U.S. at 249, 100 S.Ct. at 2641, 65 L.Ed.2d at 750 (citations omitted). Therefore, we hold that the Sexually Violent Predator Act is civil in nature, not criminal.

IV. Ex Post Facto Claim.

Garren claims that chapter 229A may not be constitutionally applied to him because it retroactively punishes him for conduct occurring prior to the effective date of the act, a result prohibited by the ex post facto provisions of the federal and state constitutions. See U.S. Const, art. I, § 10 (“No State shall ... pass any ... ex post facto Law....”); Iowa Const, art. I, § 21 (“No ... ex post facto law ... shall ever be passed.”). These constitutional provisions, however, apply only to penal or criminal laws. See Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30, 38 (1990) (“the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them”); State v. Flam, 587 N.W.2d 767, 768 (Iowa 1998) (“the prohibition of ex post facto laws applies only to penal and criminal actions”).

We have already determined that Iowa’s Sexually Violent Predator Act is civil in nature, not criminal. Therefore, the protections of the Ex Post Facto Clause do not apply. Accordingly, Garren’s claim for relief based on this constitutional provision must be rejected.

V. Double Jeopardy.

Garren’s second challenge to chapter 229A rests on the Double Jeopardy Clauses of the United States and Iowa Constitutions. See U.S. Const, amend. V (“No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.... ”); Iowa Const, art. I, § 12 (“No person shall after acquittal, be tried for the same offence.”). He asserts that the commitment of sexually violent predators violates these guarantees because the commitment constitutes a second punishment for the same offense.

The double jeopardy prohibition applies only in criminal cases. See Hudson, 522 U.S. at 98-99, 118 S.Ct. at 493, 139 L.Ed.2d at 458-59. Since we have already held that chapter 229A is civil in nature, not criminal, initiation of commitment proceedings under the statute does not constitute a second prosecution for purposes of double jeopardy. See Hendricks, 521 U.S. at 369, 117 S.Ct. at 2086, 138 L.Ed.2d at 519-20 (rejecting double jeopardy claim on the basis that Kansas’s Sexually Violent Predator Act was not a criminal statute); State v. Lange, 531 N.W.2d 108, 117 (Iowa 1995) (rejecting double jeopardy challenge based on Iowa’s drug stamp tax statute on the basis that the tax was not a criminal penalty).

. VI. Substantive Due Process.

A. General principles. 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. In similar language, the Iowa Constitution provides the same protection: “no person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const, art. I, § 9. This court has traditionally considered the federal and state due process provisions to be equal in scope, import, and purpose. See In re Interest of C.P., 569 N.W.2d 810, 812 (Iowa 1997); Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 792 (Iowa 1994). Therefore, the following discussion applies to both constitutional claims.

Under principles of substantive due process, the government is prohibited from engaging in arbitrary or wrongful actions “ ‘regardless of the fairness of the procedures used to implement them.’ ” Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100, 113 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662, 668 (1986)). A person’s interest in freedom from bodily restraint is “at the core of the liberty protected by the Due Process Clause from arbitrary governmental actions.” Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437, 448 (1992).

This liberty interest is not, however, absolute. See Hendricks, 521 U.S. at 356, 117 S.Ct. at 2079, 138 L.Ed.2d at 512. Thus, “the government may detain mentally unstable individuals who present a danger to the public.” Salerno, 481 U.S. at 748-49, 107 S.Ct. at 2102, 95 L.Ed.2d at 710 (citing Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 1810, 60 L.Ed.2d 323, 331 (1979)). The United States Supreme Court rejected a substantive due process challenge to the Kansas Sexually Violent Predator Act in Hendricks. 521 U.S. at 360, 117 S.Ct. at 2081, 138 L.Ed.2d at 514. The Court stated:

A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a “mental illness” or “mental abnormality.” These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Kansas Act is plainly of a kind with these other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a “mental abnormality” or “personality disorder” that makes it difficult, if not impossible, for the person to control his dangerous behavior.

Id. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d at 512-13.

The Iowa act is also “plainly of a kind” with those civil commitment statutes • upheld by the courts against a substantive due process challenge. In fact, as noted earlier, the Iowa act is identical to the Kansas statute in all significant respects, using the same definitions and the same standards. Garren argues, nonetheless, that the Iowa statute violates his substantive due process rights because it does not provide for a less restrictive placement. We rejected a similar argument in In re B.B., 516 N.W.2d 874, 878 (Iowa 1994).

In In re B.B., a juvenile, adjudged to be delinquent, was committed to the State Training School while awaiting placement in highly structured group foster care. 516 N.W.2d at 877. He contended he had a substantive due process right to the least restrictive setting. Id. We held that neither state law nor the constitution gave him such a right. Id. at 878. We stated, “if institutional custody is constitutional, it does not become unconstitutional just because there may be a more desirable form.” Id. (citing Reno v. Flores, 507 U.S. 292, 308, 113 S.Ct. 1439, 1448, 123 L.Ed.2d 1, 17-18 (1993)).

Garren’s substantive due process challenge does not rest upon a claim that institutional custody in this instance is unconstitutional. Rather, he merely asserts that a violation of his substantive due process rights exists because chapter 229A does not provide for the “least restrictive placement.” As this court noted in In re B.B., “Even if such a right did exist, it is not a ‘fundamental’ right. Therefore, substantive due process demands, at the most, that there be a reasonable fit between the governmental purpose and the means chosen to advance that purpose.” Id. at 879 (citations omitted). We think there is a reasonable fit here between the State’s purpose of protecting society from persons who have been determined to be likely to reoffend if not placed in a secure facility and their placement in such a facility. Therefore, Garren has failed to show a substantive due process violation.

VII. Vagueness.

Although Garren states in a division heading in his brief that chapter 229A is vague as applied and on its face, he makes no argument in his brief in support of the contention that the statute is vague as applied to him. We deem this issue waived. See Iowa R.App.P. 14(a)(3) (“Failure in the brief to state, to argue or to cite to authority in support of an issue may be deemed waiver of that issue.”); State v. Cooley, 608 N.W.2d 9, 13-14 (Iowa 2000) (holding issue waived where matter not addressed beyond reference in heading in brief). Consequently, Garren is precluded from arguing that the statute is unconstitutionally vague as applied to him. We turn now to his facial vagueness claim.

If a statute is constitutional as applied to the party claiming the law is vague, that party “lacks standing to make a facial challenge unless a recognized exception applies.” State v. Hunter, 550 N.W.2d 460, 463 (Iowa 1996), overruled on other grounds by State v. Robinson, 618 N.W.2d 306, 312 (Iowa 2000). One exception is where “First Amendment rights are implicated.” Id. Another exception is “a situation where persons who are not parties to the suit ‘stand to lose by its outcome and yet have no effective avenue of preserving their rights themselves.’ ” State v. Price, 237 N.W.2d 813, 816 (Iowa 1976) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839 (1973)).

Garren has not addressed in his brief how this case falls within one of these exceptions. We have previously stated that this court will not “assume a partisan role and undertake [a party’s] research and advocacy,” especially where a party’s failure to address a matter hinders our consideration of the issue. Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974). That is the situation here. Because Garren has not provided this court with any guidance on why the general rule that prohibits a person in his position from making a facial challenge to a statute does not apply, we apply the general rule and hold that he has no standing to make a facial attack on chapter 229A.

VIII. Equal Protection.

Garren claims that his right to equal protection of the laws is violated by the statute because he is treated differently than “all other recidivists.” See U.S. Const, amend. XIV, § 1; Iowa Const, art. I, § 6. We have previously determined that sexually violent predators are not similarly situated to other recidivists:

It is true that other prisoners may have committed violent offenses, may suffer from a mental disorder, and may be likely to repeat their prior offenses, but such prisoners are still dissimilar because their offenses are not sexual in nature. This difference in the nature of the prisoners’ offenses is an adequate basis upon which to conclude that sexually violent predators and other violent offenders are not similarly situated and may be treated differently without violating the Equal Protection Clause.

In re Morrow, 616 N.W.2d at 548. We also held in Morrow that the classification of sexually violent offenders was reasonable. Id. at 549. We applied a rational basis standard in making this determination because Morrow had not preserved his claim that the reasonableness of the classification should be subjected to strict scrutiny. Id. at 548 n. 1.

In contrast, here, Garren contended in the trial court that his equal protection claim was to be judged under a strict scrutiny standard because the statute impacted his liberty — a fundamental right. Other courts have reached differing conclusions in deciding whether an involuntary commitment statute such as the one before us is subject to strict scrutiny, is evaluated under an intermediate, heightened level of review, or must merely have a rational basis for the classification made. See, e.g., Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779, 796 (Ct.App.1999) (applying rational basis test); In re Hay, 263 Kan. 822, 953 P.2d 666, 675 (1998) (applying strict scrutiny standard); In re Linehan, 557 N.W.2d 171, 186 (Minn.1996) (subjecting statute to “heightened scrutiny”); In re Detention of Turay, 139 Wash.2d 379, 986 P.2d 790, 806 (1999) (applying rational basis test). We need not resolve this question because we think chapter 229A passes muster even when judged under a strict scrutiny standard.

When judicial review is based upon strict scrutiny, “the statute will survive a constitutional challenge only if it is shown that the statute is narrowly drawn to serve a compelling state interest.” City of Panora v. Simmons, 445 N.W.2d 363, 367 (Iowa 1989). We think the confinement of sexually violent predators who “will engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility,” Iowa Code §§ 229A.2(8), .7, serves a compelling state interest— protection of the public. In addition, the statute is narrowly drawn to encompass only those individuals who, because of a “mental abnormality,” are predisposed to sexually violent behavior. See id. § 229A.2(3), (8) (defining “mental abnormality” and “sexually violent predator”). Therefore, chapter 229A does not violate Garren’s right to the equal protection of the law under the state or federal constitutions. See In re Hay, 953 P.2d at 675 (holding that nearly identical Kansas statute did not violate Equal Protection Clause when subjected to strict scrutiny).

IX. Summary.

We hold that the Sexually Violent Predator Act is a civil statute that does not implicate the state and federal Ex Post Facto Clauses or Double Jeopardy Clauses. In addition, the act does not violate Garren’s constitutional rights to substantive due process or equal protection. Gar-ren did not preserve his claim that the statute is vague as applied to him and he has no standing to assert that the act is facially vague. We conclude that the trial court did not err in overruling Garren’s motion to dismiss.

AFFIRMED.

      . Garren contends that Hendricks should not govern our disposition of his claims under the Iowa Constitution. It is true that this court is not required "to interpret the Iowa Constitution in line with the United States Constitution, as long as our interpretation does not violate any provision of the federal constitution.” State v. Cline, 617 N.W.2d 277, 284-85 (Iowa 2000). Nonetheless, in considering whether a statute is civil or criminal in nature for purposes of state constitutional rights, we have relied in the past on federal case law. See, e.g., State v. Pickens, 558 N.W.2d 396, 398-99 (Iowa 1997) (applying Kennedy factors in determining civil nature of sex offender registration statute where defendant claimed the act violated the ex post facto provisions of the United States and Iowa Constitutions). Garren has suggested no legal deficiency in the federal principles governing this issue, nor has he offered an alternative test or guidelines for this court to apply in determining whether a statute is civil or criminal in nature. Therefore, we will continue to employ the federal analysis in addressing this issue under our state constitution. Accordingly, our discussion of this issue applies equally to Garren's state and federal constitutional claims.

      . Section 229A.3 states that the agency with jurisdiction of an individual who "may meet the definition of a sexually violent predator ... shall give written notice to the attorney general ... no later than ninety days prior to” certain events, including "the anticipated discharge of [the] person ... from total confinement.” Iowa Code § 229A.3(1). At the time the State filed its petition in this case, section 229A.4 stated that "the attorney general may file a petition, within seventy-five days of the date the attorney general received the written notice by the agency of jurisdiction pursuant to section 229A.3...." Id. § 229A.4(1) (emphasis added). In the 1999 legislative session, the general assembly omitted the emphasized language from section 229A.4. See 1999 Iowa Acts ch. 61, § 2. Consequently, there is no longer any time restriction on when the attorney general may initiate proceedings to have the inmate civilly committed for treatment. This amendment was not in effect, however, at the time the State filed its petition to commit Garren in February of 1999. See id. § 14 (making the amendment effective as of April 26, 1999).


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Paul George POULIN, Jr., Appellant.
    No. 99-1057.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Linda Del Gallo, State Appellate Defender, Patricia Reynolds, Assistant State Appellate Defender, and James W. Cana-day, Student Legal Intern, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Michael L. Zenor, County Attorney, and Charles K. Borth and Michael J. Houchins, Assistant County Attorneys, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   CARTER, Justice.

Defendant, Paul Poulin, Jr., challenges his conviction for possession of a controlled substance without the requisite tax stamp. He contends that a search warrant based in part on items found in discarded trash was invalid because the application for the warrant was incomplete and misleading. From this premise, he urges that the fruits of the resulting search should have been suppressed. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

In December 1997 an individual in the custody of the Clay County sheriff advised law enforcement officers of Clay County and the City of Spencer that defendant was selling marijuana in the Spencer area. At about this same time, persons living in the neighborhood where defendant resided told Spencer police and Clay County sheriffs deputies that they had observed unusually frequent visits to defendant’s apartment by persons who would enter briefly and then leave. These persons would park at the end of the alley behind defendant’s apartment, walk to his front door, and leave shortly thereafter. On some occasions, they would appear at the front door and then walk around the building to enter defendant’s apartment through another entrance that was not located in plain view. The law enforcement officers who received this information were aware of the fact that defendant had been convicted of possession with intent to deliver marijuana.

One of defendant’s neighbors told police that the suspicious visitors continued to appear at defendant’s apartment in May of 1998. The neighbor copied down the license numbers of the visitors’ automobiles and gave them to a deputy sheriff. In checking on these license numbers, the deputy learned that some of the persons to whom the vehicles were registered were known by him to be drug users. Prompted by the information thus obtained, Spencer police and Clay County sheriffs deputies collected trash from behind defendant’s apartment on three occasions seeking evidence of controlled-substance transactions. The trash collected contained correspondence addressed to defendant and to defendant’s girlfriend who lived with him in the apartment. It also contained plastic bags in which marijuana seeds and stems and a green leafy substance that smelled like marijuana were found. In addition, the officers found in the trash a ledger that contained dollar amounts, telephone numbers, and the names of certain persons known to the officers to be drug users.

The officers compiled this information in affidavit form and included it in a search warrant application, seeking access to defendant’s apartment, which was described as the “downstairs apartment.” The jailhouse informant and neighbors who had given information were shown in the warrant application as confidential informants. The jailhouse informant was certified to be reliable based on the officers’ personal acquaintance with him and as a result of the corroborative information obtained from defendant’s neighbors. The neighbors were certified to be reliable based on their standing in the community. Based on the application submitted, a magistrate issued a warrant to search defendant’s apartment. The resulting search produced evidence of the controlled substance on which defendant’s tax stamp conviction was based.

I. The Challenge to the Search Warrant Application.

Defendant contends that the search warrant on which the search of his apartment was based was invalid because the warrant application was inaccurate and misleading. He argues that the warrant application did not reveal that there were two dwelling units in this apartment building, and that the trash found in the alley by police was not exclusively that of the defendant. He further contends that the warrant application falsely described the alternative entrance to defendant’s apartment as being concealed when it was not concealed.

In support of his argument, defendant urges that his trial counsel was ineffective for failing to challenge the warrant in accordance with the rules laid down in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Franks established that in some instances the determination of the validity of a search warrant with regard to the probable-cause showing need not be based exclusively on the material contained in the warrant application. In considering this matter, the Court stated:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.

Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed.2d at 672. If that hearing firmly establishes the falsity of the challenged information, such information must be disregarded in a court’s ultimate determination of probable cause. Id.

The Franks doctrine has been applied to situations involving the omission of crucial information from a warrant application as well as the inclusion of inaccurate information. United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993); United States v. Colkley, 899 F.2d 297, 300 (4th Cir.1990). When such omissions are established, a court reviewing a magistrate’s finding may determine the probable-cause issue by considering both the information contained in the warrant application and the omitted information deemed to be significant. Id. We believe that the district court resolved defendant’s probable-cause challenge in this manner and did not base its suppression-hearing ruling solely on the information contained within the four corners of the warrant application.

At the suppression hearing, defendant’s counsel presented deposition testimony of the officers, which clearly revealed the existence of the second apartment unit and the fact that the trash which had been scrutinized contained items that had been discarded by the occupants of both apartment units. Photographs of the area where the trash had been picked up were offered in evidence. The officers also testified that the reference to a concealed door in the warrant application was intended to describe a second door that was in an inconspicuous location with respect to those who might be viewing the apartment building. In deciding whether there was probable cause to issue the warrant, the district court stated that the ruling was based on consideration of (1) the original search warrant document, (2) the depositions of the police officers, and (3) photographs of the area where the trash had been collected. We are satisfied that defendant was given the full benefit of the Franks doctrine in the district court’s ruling. Defendant’s counsel was not ineffective for failing to require more from the court. Moreover, any failure of the district court to consider the additional evidence presented concerning the source of the trash will be obviated by this court’s consideration of all such evidence.

II. The Probable-Cause Issue.

We now consider the merits of the probable-cause issue. The existence of probable cause to search a particular area depends on whether a person of reasonable prudence would believe a crime has been committed on the premises to be searched or that evidence of a crime might be located there. Gogg, 561 N.W.2d at 363; Weir, 414 N.W.2d at 330. The issuing magistrate or a judge resolving a challenge to the magistrate’s finding “is simply [required] to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before [the magistrate or judge], including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information” probable cause exists. Gogg, 561 N.W.2d at 363 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983)). In so doing, a judge may rely on reasonable common-sense inferences from the information presented. State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). Close cases are decided in favor of upholding the validity of the warrant. Gogg, 561 N.W.2d at 364; State v. Godbersen, 493 N.W.2d 852, 854-55 (Iowa 1992). Applying this standard to the showing before us, we conclude that probable cause existed for the issuance of the warrant permitting the search of defendant’s apartment.

In the present case, the evidence provided by the jailhouse informant, if corroborated, would render it probable that defendant would possess marijuana. Some corroboration of that statement is found in the information supplied by neighbors in December of 1997. More corroboration indicating that this was a continuing activity was found in the information provided by a neighbor in May of 1998, which included license plate numbers of persons with reputations for using drugs. As the Supreme Court has recognized, police knowledge of reputation may be an important element in determining probable cause. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In that case, the Court said:

We cannot conclude that a policeman’s knowledge of a suspect’s reputation— something that policemen frequently know and a factor that impressed such a “legal technician” as Mr. Justice Frankfurter — is not a “practical consideration of everyday life” upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip.

Id. at 583, 91 S.Ct. at 2081-82, 29 L.Ed.2d at 733. We believe this principle is applicable to the reputations of those persons who visited defendant’s apartment and also to defendant’s own reputation based on his conviction for possession of marijuana with intent to deliver. The finding of marijuana residue in the trash behind defendant’s apartment when considered with the other circumstances we have discussed was sufficient to establish probable cause for the issuance of the warrant notwithstanding the fact another tenant of the building also dumped trash at that location.

Based on the conclusions we have reached with respect to defendant’s challenge to the warrant application and the finding of probable cause, we must affirm the judgment of the district court. Although defendant argues in his brief that his Fourth Amendment rights were violated by the actions of law enforcement officers in searching his trash cans, that argument was expressly withdrawn during oral argument. We do not consider it. We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

McGIVERIN, S.J., participates in place of LARSON, J., who takes no part.

      . Ordinarily, the judicial determination of probable cause is limited to consideration of only that information, reduced to writing, which was actually presented to the magistrate at the time the application for warrant is made. State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997); State v. Randle, 555 N.W.2d 666, 668-69 (Iowa 1996); State v. Weir, 414 N.W.2d 327, 329 (Iowa 1987).